Woo Kwok Ping v. The Incorporated Management Committee of Tsuen Wan Trade Association Primary School
Read the full judgment text of DCCJ 3296/2020 on BabelCite. This District Court judgment was delivered on 12 April 2022.
1. Tsuen Wan Trade Association Primary School ( “the School” ) is an aided primary school operating in Tsing Yi Estate. Its sponsoring body is TWTA Education Foundation Ltd ( “the Foundation” ). In 2007, the Incorporated Management Committee of the School ( “the IMC” ) was established as the incorporated body for the management of the School pursuant to section 40AD of the Education Ordinance (Cap. 279, Laws of Hong Kong) .
Cited by 4 cases · Cites 24 cases
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DCCJ 3296/2020 [2022] HKDC 308 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 3296 OF 2020 --------------------------
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-------------------------- JUDGMENT --------------------------
A. BACKGROUND[1] 1.Tsuen Wan Trade Association Primary School (“the School”) is an aided primary school operating in Tsing Yi Estate. Its sponsoring body is TWTA Education Foundation Ltd (“the Foundation”). In 2007, the Incorporated Management Committee of the School (“the IMC”) was established as the incorporated body for the management of the School pursuant to section 40AD of the Education Ordinance (Cap. 279, Laws of Hong Kong). 2.The plaintiff became a Certified Mistress of the School on 1 September 1986. She was appointed as the acting principal of the School with effect from 1 September 2007, and was confirmed as its principal on 9 September 2009. But for her dismissal, she was due to retire on 31 August 2014. 3.The plaintiff was employed by the IMC as the principal of the School by virtue of a contract of employment dated 19 May 2007 (“the Contract”). The Contract included a Letter of Acceptance for Principals of Aided Schools (資助學校校長聘書) and Conditions of Service of Teachers of Aided Schools (資助學校教師服務條件) (“Conditions of Service”). 4.From 2012 onwards, the IMC began to complain that the plaintiff had failed to properly handle the administrative and financial affairs of the School. Eventually, the IMC had issued 15 reminders and warnings altogether to the plaintiff in the period between August 2012 and July 2013. 5.The reminders and warnings were as follows:
6.On 27 July 2013, the IMC dismissed the plaintiff summarily. 7.On 31 July 2013, Mr Chu Tak Wing (“Mr Chu”), the supervisor of the School, reported the dismissal of the plaintiff to EDB. 8.On 21 August 2013, the Foundation and the IMC appointed Mr. Wong Kam-on (“Mr Wong”) as the acting principal of the School for the period between 28 July 2013 and 27 January 2014. 9.On 16 October 2013, Mr Wong’s appointment as acting principal of the School was approved by the Permanent Secretary for Education (“the Permanent Secretary”). 10.On 28 January 2014, the Permanent Secretary approved Mr. Chow Kim-on (“Mr Chow”) as the principal of the School on an acting basis. Mr Chow’s appointment was confirmed subsequently on 29 December 2014. B. PARTIES’ RESPECTIVE CASES – AN OVERVIEW 11.The plaintiff claims that the IMC had acted in breach of the Contract, the Education Ordinance and the Employment Ordinance (Cap. 57, Laws of Hong Kong) in that:
12.By reason of the aforesaid breach of statutory duty and/or the Contract and/or unlawful and wrongful dismissal by the IMC, the plaintiff claims that she is entitled to damages as follows[4]:
13.The plaintiff also claims that the provident fund balance from 1 September 1996 to 27 July 2013 was unlawfully withheld by the IMC, and that she is entitled to its return even if her summary dismissal was valid. 14.The IMC’s case is that it had duly complied with the Contract, the Employment Ordinance and the Education Ordinance in the plaintiff’s dismissal. 15.It is alleged that the plaintiff had acted in breach of the Contract through her gross misconduct which had led to the issuance of the 15 reminders and warnings. 16.As a result, the IMC was entitled to summarily dismiss the plaintiff pursuant to section 9 of the Employment Ordinance and/or section 57(g) of the Code of Aid; alternatively, the plaintiff’s misconduct also satisfied the grounds under section 56 of the Education Ordinance for the Permanent Secretary to withdraw her approval of the plaintiff as the principal of the School. 17.In any event, the plaintiff had ceased to be the principal when the School sought the Permanent Secretary’s approval for another principal, or when the Permanent Secretary approved another acting principal or principal. 18.The IMC also counterclaims against the plaintiff for loss and damage arising from her breach of duties, which had given rise to substantial accumulated deficit of up to $1,055,771.70 in the School’s General Funds Account as of 31 August 2014. Pursuant to the EDB’s order, the School had to use its own funding from the Foundation in the amount of $1,067,801.50 to make good the accumulated deficit. B3. The court’s consideration of the justification of summary dismissal 19.As it can be seen above, a large number of reminders and warnings had been issued by the IMC to the plaintiff. In respect of each of those reminders/warnings, there were various allegations made against the plaintiff. 20.However, it is noted that in its Re-Re-Amended Defence and Counterclaim, the IMC did not plead all the grounds relied on in such reminders/warnings. 21.I should emphasize that the IMC is bound by its pleadings, and therefore it is not entitled to rely on grounds which were not pleaded in its pleadings, even if such grounds had been mentioned in the warning/reminder letters issued to the plaintiff. For this purpose, I do not think I need to cite any authority other than Kwok Chin Wing v 21 Holdings Ltd (2013) 16 HKCFAR 663, in which Chief Justice Ma had the following to say in paragraph 21 of the Reasons for Judgment:
22.On the other hand, it is also well established that it is immaterial even if the IMC had originally relied on grounds which were without substance, so long as there were valid grounds to justify summary dismissal at the time. This would be so even if the IMC only discovered those grounds subsequently[5]. Similarly, the IMC is entitled to rely herein on reasons not disclosed at the time to support the plaintiff’s dismissal, provided that there is adequate factual basis to substantiate such reasons[6]. But of course, those reasons and factual matters must have been properly pleaded in this action in the first place. 23.It will therefore be seen that in the discussion of a number of the reminders/warnings below, I would have to quote the pleadings of the parties extensively so as to make sure that the battle lines are clearly drawn in this Judgment. 24.For the avoidance of doubt, in the event I take the view that the IMC has not established the allegations as pleaded in relation to a particular reminder/warning, I would hold that the IMC was not justified in issuing that reminder/warning, even though there were other grounds which were mentioned in such a reminder/warning (and even if those other unpleaded grounds might well be sound). 25.On the other hand, in the event I hold that the IMC was justified in issuing a particular reminder/warning, for the reasons explained above, that finding should not be interpreted to cover any allegations contained in such reminder/warning which were not upheld or pleaded herein. 26.The main issues to be resolved by this court are as follows:
27.Issue (1) is a very complicated issue because the IMC has raised 15 matters herein in support of the plaintiff’s summary dismissal. This court has to, first of all, rule on each of those 15 matters, and then consider the established “fault(s)” together and decide whether they would justify the eventual summary dismissal of the plaintiff. 28.Before this court undertakes this task, it would be useful if I set out the relevant legal provisions, regulations and principles covering various aspects which are relevant to issue (1). D. STATUTORY PROVISIONS, REGULATIONS & LEGAL PRINCIPLES 29.Pursuant to section 40AE(2) of the Education Ordinance, the IMC shall be responsible for:
30.Pursuant to section 40AF of the Education Ordinance, the IMC is vested with a number of powers to carry out the management of the School:
D2. The Supervisor’s functions 31.Every school must have a supervisor. Section 40AK of the Education Ordinance provides that the supervisor’s functions shall be as follows:
32.Functions of a principal have been stipulated under section 58 of the Education Ordinance as follows:
33.Section 9(1) of the Employment Ordinance provides that:
34.This section was considered in the case of Allidem Mae G v Kwong Si Lin [2006] 1 HKC 252, in which Deputy High Court Judge Carlson had the following to say:
35.Section 57(g) of the Code of Aid also provides that:
D5. Assessment of credibility of witnesses 36.When I consider the credibility of various witnesses who had given evidence in court, I shall take the following matters into account:
(See: Hui Cheung Fai v. Daiwa Development Ltd (HCA 1734/2009, unreported, 8 April 2014, at paragraphs 77 – 82); Lee Fu Wing & Another v Yan Po Ting Paul & Another [2009] 5 HKLRD 513, at paragraph 53; Lam Rogerio Sou Fung v Tan Soon Gin George (HCA 2576/2005, unreported, 5 May 2011, at paragraph 41); Ting Kwok Keung v Tam Dick Yuen [2002] 5 HKCFAR 336, at paragraphs 36 – 38; Star Glory Investment Ltd v Kai Tuo (HK) Technology Co Ltd (HCA 3523/2002, unreported, 13 August 2005, at paragraph 12)) 37.In the particular circumstances of the present case, in which witnesses were recounting events which took place no less than 8 years before the trial, this court should also bear in mind the difficulties faced by the witnesses in recalling clearly what happened at the material time. As HH Judge Keyser QC put it in Moorgate Capital (Corporate Finance) Ltd v H I G European Capital Partners LLP [2019] EWHC 1421 (Comm) at paragraph 68:
38.The “helpful remarks” of Leggatt J made in Gestmin SGPS SA v Credit Suisse Securities (Europe) Ltd [2013] EWHC 3560 (Comm) are as follows:
39.These remarks have also been found to be helpful in Hong Kong Courts, see for example, Sarah Sally Chan-Kent v Chim Sau Ching [2019] HKCFI 3066 (at paragraph 45). 40.However, we should remember the reminder given by G Lam J (as G Lam JA then was) in Maryo Development Limited v Tsang Yau May & Others [2020] HKCA 845:
41.In the present case, the plaintiff had given evidence herself but not called any other witness. On the other hand, the IMC had called Mr Chu (the supervisor of the School), Mr Lee Chi Fung (one of the managers of the IMC) (“Mr Lee”) and Ms Iu Ka Wai (the secretary of the Foundation) (“Ms Iu”). 42.Out of the above witnesses, the evidence of the plaintiff and Mr Chu are the most important because, as it can be seen below, there will be a number of issues which concern what had been discussed or agreed between them. 43.However, I regret to say that neither of them was reliable as a witness. 44.The plaintiff had appeared, both in court and in various meetings, that she could be very disorganised when she offered her explanation on various matters. This may make it quite difficult to understand what she actually meant in her explanation. 45.However, even if allowance had been given to her poor ability to express herself clearly, I find that she had given different explanations on the same matter from time to time, not only in these proceedings (by way of witness statements and viva voce evidence at the trial), but also in various meetings with the managers of the IMC. She had given this court a strong impression that she would say whatever which came up to her mind, not caring whether they were true or not. 46.In relation to Mr Chu, as I will elaborate when I analyse the IMC’s individual complaints below, he had demonstrated on different occasions that he was very eager to find someone to be held responsible so that the IMC and he himself could be exonerated from any allegations by EDB of mismanagement of the School. This is an important matter to be borne in mind because this attitude would render his evidence or assertion, for example, that the plaintiff had never sought his approval on a particular matter, much less believable. 47.Despite the observations which I made in respect of the evidence given by the plaintiff and Mr Chu, I would not say that I should reject their evidence altogether. My observations above only render it even more important for the court to rely on contemporaneous evidence and the inherent probability of the assertions made by the parties in the present case. 48.I will now proceed to consider the reminders and warnings issued by the IMC, and make relevant factual findings insofar as necessary. E. REMINDERS AND WARNINGS – DISCUSSIONS E1. Reminder 1 – Purchase of computer equipment 49.On 20 August 2012, a verbal reminder concerning the plaintiff’s proposed purchase of a laptop computer and router/printer at the total price of $11,730 was given. It was alleged that the plaintiff had:
E1.1 Compliance with the procurement procedure 50.Paragraph 14(1)(c) of the Re-Re-Amended Defence and Counterclaim pleaded that:
51.“EDB Circular No.15/2007” which was issued on 14 December 2007 set out the requirements on procurement arrangements at different financial limits as follows (“EDB’s Procurement Guidelines”):
52.The alleged “requisite procurement procedure issued by the Foundation on 31 January 2012” pleaded in the Re-Re-Amended Defence and Counterclaim was contained in “the 31 January 2012 Letter” (“the Foundation’s Letter dated 31 January 2012”). The said letter reads:
53.The plaintiff’s arguments were that:
54.In my view, the court has to consider the following issues:
E1.1.1 Which set of guidelines was applicable? 55.There is no dispute that the EDB’s Procurement Guidelines must be complied with by the School. The question is whether the Foundation’s Procurement Guidelines, which have imposed more stringent requirements, should be followed. If so, then any compliance with the EDB’s Procurement Guidelines per se would not assist the plaintiff. 56.At the outset, I have to deal with a “pleadings point” raised by the IMC. 57.In the plaintiff’s argument, it was submitted that the Foundation’s Procurement Guidelines had never been adopted by the School and therefore were not binding on the School. 58.On behalf of the IMC, Mr Laurence Li SC (leading Mr Harrison Miao) submitted in their written closing submissions that:
59.With respect, I do not agree with the IMC’s submission that the plaintiff had never claimed that the Foundation’s Procurement Guidelines could not be applied to the School pending the IMC’s ratification. The plaintiff had plainly done so in her witness statement, when she stated that “the Foundation’s [Procurement Guidelines] had never been agreed by the IMC, and that the Foundation had no power to give instructions on behalf of the IMC”. In my view, the plaintiff only expressed the same meaning in a different way. 60.However, even though the plaintiff had expressed such a stance in her witness statement, she did not make that clear in her Re-Re-Amended Reply and Defence to Counterclaim. On the applicability of the Foundation’s Procurement Guidelines, she only pleaded that “the guidelines as set [out] in the 31/01/2012 Letter were only applicable to the Kindergarten, but not the School”[7]. In my view, that is not enough, for a party should not be allowed to “slip in” unpleaded issues in this way. The assertion that the IMC had not approved or ratified must be a material fact which must have been included in the plaintiff’s pleadings. 61.The plaintiff’s counsel argued in their written reply submissions that:
62.With respect, there is no difference between the two concepts. 63.I will therefore refuse to consider the plaintiff’s argument that the Foundation’s Procurement Guidelines were not automatically binding on the School. 64.I now turn to the question of whether the plaintiff was supposed to be following the Foundation’s Procurement Guidelines when she proposed to purchase the laptop computer and the router/printer. 65.In my view, she was not, for the following reasons:
66.Hence, at the time when the plaintiff was minded to purchase the laptop computer and the router/printer, all she was required to do was to comply with the EDB’s Procurement Guidelines. 67.I should add that it is in fact quite ironic for Mr Chu to allege that the plaintiff had failed to comply with the Foundation’s Procurement Guidelines. While Mr Chu had on numerous occasions confronted the plaintiff for her failure to follow the said guidelines, and he even proposed in the IMC meeting held on 25 May 2013 to issue Warning 11 to the plaintiff on the basis of her not following the Foundation’s Procurement Guidelines[12], he had, as I noted above, unequivocally represented in the IMC meetings held on 18 May 2013 and 25 May 2013 to the effect that such guidelines would not be followed strictly. E1.1.2 Did the plaintiff comply with the EDB’s Procurement Guidelines? 68.To recap, according to the EDB’s Procurement Guidelines, the plaintiff had to obtain 2 verbal quotations if the purchase price concerned was over $5,000 but less than $30,000. No quotation would be required to be obtained if the purchase was of an amount of no more than $5,000. 69.The plaintiff argued that no quotation was required to be obtained for the purchase of the laptop computer and the router/printer because:
70.In any event, the plaintiff contended that she had, upon the instructions of Mr Chu, asked a member of the IT Team of the School to obtain 4 quotations for the laptop computer, and therefore she had complied with the EDB’s Procurement Guidelines (and indeed, the Foundation’s Procurement Guidelines as well). 71.I would first of all consider whether the purchase of the laptop computer on one hand and the router/printer on the other hand should be considered as one purchase or two separate transactions. 72.In my view, they should be regarded as two different transactions because:
73.Although the original arrangement was that the School would settle both invoices (for the laptop computer and the router/printer respectively) together by the same cheque, that would not affect my ruling on the matter, as I accept that that was done for the sake of convenience only. 74.I therefore accept that there was no need to obtain quotation for the purchase of the router/printer. 75.As aforesaid, the plaintiff stated that upon the instruction of Mr Chu, she had asked a member of the IT Team of the School to obtain 4 quotations, and as a result, a summary of the quotations dated 31 July 2012 had been provided, which she had disclosed in this action together with the quotations as follows:
76.In relation to these quotations, the IMC had made the following arguments. 77.Firstly, it was submitted that among the 4 “quotations”, only those from PCCW Limited and Wave Technology Co. clearly stated that they were quotation documents. While the “quotation” from Dell was only a screen capture from its website, the document issued by JP Networking Solutions was an invoice. It was doubted whether the last two documents could qualify as quotations. 78.I do not think the word “quotation” must be printed on a document before such a document could be treated as such. Neither do I think there is any problem for getting a quotation from a supplier’s website. 79.The invoice issued by JP Networking Solution, on the other hand, has created a slight problem, for it was dated 6 August 2012, which means it was issued after the summary of quotations was prepared on 31 July 2012. However, I would infer that the staff member of the IT Team must have asked JP Networking Solution for a quotation verbally before the summary of quotations was compiled, otherwise the staff member could not have done the summary which was consistent with the figures contained in the said invoice issued by JP Networking Solution subsequently. 80.In any event, under the EDB’s Procurement Guidelines, for purchase above $5,000 and below $30,000, only two verbal quotations would be required. 81.Secondly, it was alleged by Mr Lee that he was not provided with those quotations when he was first asked to sign the relevant cheque. 82.I have serious doubt as to whether Mr Lee had paid attention to whether the quotations were attached to the cheque at the material time for the following reasons:
83.In any event, pursuant to the EDB’s Procurement Guidelines, there was no requirement that approval had to be sought from the IMC. So long as the principal was satisfied that the requirements under the aforesaid guidelines had been complied with, the principal might cause the School to place the order.[13] 84.Thirdly, the IMC had placed great reliance on a document dated 3 October 2012 (“the plaintiff’s 13 October 2012 Response”). This was prepared by the plaintiff for the purpose of urging the IMC not to issue 4 warning letters to her, and one of which was about the purchase of the laptop computer, in respect of which the plaintiff explained that:
85.The plaintiff had indeed only attached the quotation obtained from the website of Dell to the plaintiff’s 13 October 2012 Response. 86.The IMC pointed out that if the plaintiff had really obtained various quotations as alleged, it would be surprising that she only attached the quotation from Dell to the said response. 87.While I can see the force of this argument, I would still accept that the plaintiff had obtained the 4 quotations as she asserted. Holding that the plaintiff did not obtain the quotations as she did would necessarily require a finding that the summary of quotations dated 31 July 2012, the quotation of PCCW Limited dated 10 July 2012 and the quotation issued by Wave Technology Co. dated “25-7-20” were false documents. I am not prepared to make that finding at all. I have no hesitation in accepting that the summary was prepared on the date as stated thereon. 88.I therefore find that the plaintiff had complied with the EDB’s Procedure Guidelines in the purchase of the laptop computer and the router/printer. 89.That being the case, it is not necessary for the court to consider the plaintiff’s argument that there was no need for the School to obtain quotations for the laptop computer since the cost to be shared by the School was only 50% of the total price (i.e. $4,625). 90.The IMC pleaded in paragraph 14(2) of the Re-Re-Amended Defence and Counterclaim that the plaintiff had breached her duties in:
91.Section 72(a) of the Code of Aid provides that:
92.On Day 5 of the trial, Mr Li SC for the IMC informed the court of his acceptance that the said section 72(a) of the Code of Aid is not applicable to the circumstances of the present case. 93.With Mr Li’s concession, the whole basis of the IMC’s complaint on “sharing of resources” has gone. I would have thought that that would be the end of the IMC’s case in this respect. 94.However, in the IMC’s written reply submissions, it was argued that:
95.With greatest respect, I do not accept the IMC’s arguments. The applicability of section 72(a) of the Code of Aid must be relevant in the present case because this is the only basis on which the IMC built its case against the plaintiff on “sharing of resources”. 96.As a matter of fact, unless the IMC had pleaded its case clearly, there was no way that the plaintiff could deal with the allegation of “sharing of resources” (“共用資源”) properly. To start with, I must say at the outset that I find this term inappropriate, because what the IMC was really complaining was that the plaintiff should not have caused the School to “co-own asset with a private school”. If the plaintiff’s intention was for the School to pay half of the costs of the laptop computer and for the Kindergarten to pay the other half, in other words, each paid for its own share, there was no “sharing of resources”. This illustrates the point that the plaintiff had to be informed clearly of the basis on which the IMC alleged that it was impermissible for the School to co-own asset with others, so that the plaintiff could deal with that basis, be it a statutory provision, regulation, or otherwise. However, now that the only pleaded basis was accepted by the IMC to be inapplicable, there is nothing on which this allegation can find support. 97.I can appreciate the force of the IMC’s argument that the sharing of resources (or “co-ownership of assets”) would create practical problems for the School. However, that is not the IMC’s pleaded case. Therefore, I do not think that it is appropriate for the court to consider this further. 98.I therefore hold that the IMC has failed to justify Reminder 1 by the allegation made on the basis of “sharing of resources”. 99.For the above reasons, I am of the view that the IMC could not justify the issuance of Reminder 1 to the plaintiff. 100.Without disrespect to counsel, I do not think it is necessary for the court to make any finding on factual disputes such as when the words “先由小學代支全數，跟進鍾來付一半費用” handwritten on one of the invoices were deleted and the plaintiff’s involvement in the cheque-signing process. E2. Reminder 2 – Admitting overage students in 2nd term 101.On 20 August 2012, the IMC issued another verbal reminder to the plaintiff for having admitted overage students in the 2nd term while those students had studied in the Kindergarten during the 1st term of the same academic year. It was alleged that such a practice had seriously affected the teachers and the students’ learning progress. Reminder 2 was therefore issued for the plaintiff’s “failure to effect proper administration”. 102.According to the evidence of Mr Chu, the background of this complaint was that:
103.The plaintiff argued that the IMC’s complaint in this regard was totally groundless because:
104.Although the term “overage students” had been frequently mentioned when this complaint was touched upon at the trial, I think the focus should not be placed on the age of the students concerned, but on the fact that some Pakistani students had been admitted into the School at the beginning of the 2nd term only while they had been admitted as K3 students in the 1st term of the same academic year. Indeed, it was stated in the “verbal reminder” that:
105.Hence, it can be seen that the reminder did not say that the students concerned should not be admitted into the School at all, but should only be admitted in the following academic year (which means they would be even more “overage”). 106.The question is: was the IMC justified to issue a reminder to the plaintiff on 20 August 2012 for her failure “to effect proper administration of the School”? 107.I hold the view that it was not, for the following reasons:
108.The position may be different if there was any conspiracy between the principal of the Kindergarten and the plaintiff that the Kindergarten and the School would (with the consent of the parents concerned) share students in such a way. However, there was no such allegation in the IMC’s pleaded case. 109.Pausing here, I note that it was the IMC’s submission in paragraph 134.5 of its written closing submissions that:
110.I must make it clear that, insofar as paragraph 134.5(b) quoted above implied that the plaintiff had a part to play for the students concerned to study in the Kindergarten in the first term before being admitted into the School in the 2nd term, I would refuse to consider that allegation, for this was simply not pleaded. 111.On the other hand, it was the plaintiff’s explanation that it was the parents of those Pakistani students who wanted to send their children to the Kindergarten for one term before admitting them into a primary school. In this regard, the IMC doubted whether this was really the case because, it was said, the plaintiff had not mentioned about this in the plaintiff’s 3 October 2012 Response nor in the IMC meeting held on 22 November 2012 when the written Reminder 2 was issued to her. However, I note that it was recorded in the note of the meeting between Chairman Chu and the plaintiff held on 7 February 2012 that the plaintiff did explain that:
112.Therefore, I am satisfied that it was not something which the plaintiff fabricated subsequently. 113.I can understand that the IMC might consider it very undesirable for students to skip the 1st term of Primary One and started to learn the curriculum of the 2nd term of Primary One right away after those students had left kindergarten. For this purpose, the IMC could of course set its own policy for the principal to follow. However, before such a policy was set, I do not think it is right for the IMC to accuse the principal for having admitted such students. 114.Lastly, it was submitted by the IMC that the plaintiff’s assertion that the School had received no complaint about the disturbance created by reason of the admission of new students in the 2nd term was suspicious and in any event irrelevant. I think the answer to this submission is that there was simply no evidence that any complaint had been received. 115.In any event, I hold the view that it was unfair to the plaintiff for her to be accused of having failed to effect proper administration of the School by virtue of Reminder 2 when she was accepting new students in the 2nd term without a clear guideline or policy from the IMC that this was not permissible. E3. Warning 3 – SZ Exhibition and SZ Service Centre 116.Counsel for the defendant summarized this warning as follows:
117.It is undisputed that the School had participated in the SZ Exhibition on 15 – 16 September 2012. However, the plaintiff asserted that the IMC had never prohibited cross-border recruitment by relying on the following matters:
118.The IMC’s case may be summarised as follows:
E3.1.3 The necessity to obtain the IMC’s approval 119.The first crucial question which this court has to decide is whether it was necessary for the plaintiff to obtain the IMC’s approval before the School engaged in any activities involving cross-border recruitment of students. 120.This is not a straight forward question to answer. As Mr Chu admitted in court, the plaintiff had never been told on the rule or direction which drew the line between matters in respect of which the IMC’s approval had to be sought and those which approval was not required. Mr Chu said as a matter of principle, the plaintiff had to seek consent from the IMC on “important” matters, and the plaintiff should decide herself what matters would amount to “important matters”. 121.Having said that, the court’s attention had been drawn to section 40AE of the Education Ordinance which governs, among other things, the functions of the IMC. Sub-section (2) thereof provides that:
122.On the other hand, a principal’s functions have been set out in section 58 of the Education Ordinance as follows:
123.On the basis of the above statutory provisions, I am of the view that before the plaintiff engaged in recruitment activities in the Mainland, she should have sought approval from the IMC first, because:
124.In fact, even the plaintiff accepted during cross-examination that the IMC’s approval should be required before any recruitment exercise could be conducted outside Hong Kong. 125.There is no dispute that there had never been any IMC resolution to the effect that the plaintiff was authorised to conduct recruitment activities in the Mainland. 126.Therefore, strictly speaking, the IMC was right in that the plaintiff should not have participated in the SZ Exhibition without the IMC’s approval. E3.1.4 Other matters to be taken into account 127.Despite the conclusion reached above, does it necessarily mean that the IMC was justified in issuing Warning 3 to the plaintiff in relation to the SZ Exhibition? 128.I am of the view that the court should not jump to any conclusion so quickly, without regard to what had happened in the whole period between February and September 2012, which I will examine more closely below. As it can be seen below, there had been different discussions between the plaintiff and various managers (including the supervisor) of the IMC during the aforesaid period on cross-border recruitment of students. There was also an IMC meeting held on 20 August 2012 in which the managers had talked about the SZ Exhibition. 129.I now proceed to consider the aforesaid discussions in turn below. E3.1.5 The supervisor’s alleged approval in February 2012 130.According to the plaintiff’s evidence, she had expressly asked Mr Chu for approval in around February 2012 before she started to conduct recruitment exercise outside Hong Kong. She stated that Mr Chu had agreed to her proposal. This was what she stated in paragraph 34 of her witness statement:
131.The plaintiff also stated that upon Mr Chu’s approval, she had caused the School to incur various expenses from February 2012 onwards on cross-border recruitment, and Mr Chu had signed cheques which were issued for such a purpose. 132.Mr Chu did not mention about such matters in his witness statement, in which he stated that the plaintiff only mentioned about recruitment of students in the Mainland for the first time in the IMC meeting held on 20 August 2012. He also stated in paragraph 85 of his witness statement that:
133.During his cross-examination, Mr Chu also stated that the summary (摘要) was vague, and he did not know the exact purpose of the cheques concerned. 134.I do not accept Mr Chu’s evidence in this regard. 135.First of all, it is noted that the summary of a number of the cheques clearly stated that the purpose of issuing the cheques was “境外聯絡攤位支出”[15]. If Mr Chu had read the summary as alleged, I do not think he would have difficulty in knowing immediately that the School was spending money on recruitment exercise conducted outside Hong Kong. 136.Further, Mr Chu’s alleged ignorance about the plaintiff’s action was contradicted by what he said in the Board meeting of the Foundation held on 15 October 2012:
137.The above clearly shows that Mr Chu knew that the School was conducting the cross-border recruitment exercise together with the Kindergarten at the material time, as he explained that he had given his approval on the assumption that it was permissible for the School and the Kindergarten to recruit together, and he alleged that the plan had to be changed upon being told by EDB in August 2012 that such cooperation was not permissible.[17] 138.The explanation given by Mr Chu that he thought the plaintiff was only “assisting” (幫) the Kindergarten is incredible. That does not sit well with the fact that the School was incurring expenses in the Mainland. I will come to this part of the evidence below. 139.Mr Chu’s evidence that he did not know that the cheques concerned were issued to pay for cross-border recruitment expenses was also contradicted by his own explanation given in the IMC meeting held on 22 November 2012, in which there was the following dialogue:
140.The excuse given by Mr Chu in the IMC meeting was not that he had no idea that the expenses were incurred in the Mainland or that he did not read the summary of the purpose of the expenses, but that he thought the cheques were only issued for and on behalf of the Kindergarten first which the Kindergarten would reimburse the School later. He also stated that he only knew afterwards that the Kindergarten and the School would share expenses together. Such an explanation was totally incredible. It can be seen that there were quite a number of cheques issued in the period since February 2012. If those expenses were entirely the Kindergarten’s expenses, there was no reason why the School had to pay for the Kindergarten first on so many occasions. In my view, Mr Chu was only trying to shift the blame to the plaintiff. I find that he all along knew that the Kindergarten and the School were sharing the expenses together and he had approved such a modus operandi. 141.Taking all the evidence into account, I accept the plaintiff’s evidence that she had indeed obtained Mr Chu’s approval in conducting the recruitment exercise in the Mainland. It is understandable as to why such an approval was given: it is undisputed that the School was under constant risk of closure, and such closure could only be avoided if the School would have enough intake of Primary One students. I also find that Mr Chu had approved that expenses might be incurred for such cross-border recruitment activities, for this must be a natural consequence of engaging in recruitment activities outside Hong Kong. 142.Counsel for the IMC argued that even if Mr Chu had indeed given his verbal consent for the plaintiff to undertake cross-border recruitment activities, that would not amount to the IMC’s approval. While I agree with this proposition as a matter of principle, I do not think the court should totally ignore such consent which came from the supervisor of the School. As a matter of fact, even the IMC itself was relying on the discussions in informal meetings when accusing the plaintiff of ignoring “the IMC’s instructions” at the trial (see further below). 143.I should add here that as far as the cheques which were drawn to pay for the cross-border recruitment expenses are concerned, I would not accept, as contended by the plaintiff’s counsel, that once the other 2 authorised signatories had signed those cheques, those 2 managers should be taken to have consented to and approved the cross-border recruitment exercise, for it is not clear whether they were fully apprised of the nature of the underlying transactions, and they (there is not even evidence as to who they were) might have signed the cheques negligently, without reading carefully what the cheques were about. E3.1.6 IMC meeting held on 20 August 2012 144.The only IMC meeting, in which the topic on recruitment of students from the Mainland (or cross-border recruitment exercise) was discussed before the SZ Exhibition took place on 15 September 2012, was held at 2pm on 20 August 2012. 145.In the minutes of the IMC meeting which was signed by Mr Chu on 10 June 2013, it was recorded that the IMC had the following discussions:
146.A related topic concerning cross-border school bus was also discussed in the same meeting. The minutes read:
147.It was Mr Chu’s evidence in his witness statement that plaintiff only mentioned about cross-border recruitment for the first time in this IMC meeting:
148.I have the following observations:
149.Not only was there no documentary evidence showing that Mr Chu had expressed his objection against cross-border recruitment, there was evidence pointing to the contrary. Ms Liu Shui Ka (“Ms Liu”), a teacher manager of the IMC, in her contemporaneous notes taken during the meeting, wrote that Chu had said:
150.I accept that this was apparently a shorthand form of what Mr Chu had said in the meeting. Although this line was not contained in the approved version of the minutes nor in the notes taken by Ms Cai (“Ms Cai”), the alternate teacher manager who also took notes for this meeting, I have no doubt that this was not made up by Ms Liu because:
151.The IMC argued that these words could be interpreted to mean “cross-border recruitment exercise” or “admission of Mainland students”. I agree that both are the possible literal meanings of those words. However, I tend to think that it should mean the former, for it is consistent with what Mr Chu had agreed in the past. 152.Another pointer which shows that there was no clear indication from the IMC that the plaintiff should cease all cross-border recruitment activities is that, if there was such a clear instruction or decision, I do not believe that the plaintiff would have presented a cheque for the authorised signatories to sign on 30 August 2012 (to Mr Chu and another manager), and 3 September 2012. I will come back to this later. 153.I am also aware that it was Mr Lee’s evidence that he and others had already expressed in the IMC meeting on 20 August 2012 that the School should not engage in recruitment activities outside Hong Kong. Mr Lee had emphasised this when he met the plaintiff on 14 September 2012. 154.In this regard, it is important to pay attention to the fact that, in Ms Liu’s handwritten notes, the words “跨境/本地雙線招生” appeared as the “last words” said on this topic in the meeting. There was no further record that anything was said by anyone else after Mr Chu had expressed the aforesaid view. 155.On the basis of the above, I find that the IMC did not come to any agreement during the IMC meeting on 20 August 2012 that the plaintiff should cease all cross-border recruitment activities right away. On the other hand, if the supervisor had expressed the view of “跨境/本地雙線招生” and no one had raised any objection against that, it would be reasonable for the plaintiff to proceed with cross-border recruitment activities even though there was no resolution passed to that effect. 156.I should emphasise that what I stated above should not be taken to be a general endorsement that the IMC should operate in such a way. However, in my view, when a school decides whether a warning should be issued to a principal or a teacher, “reasonableness” must be one of the most important yardsticks. Take this case as an example, I think it would be quite unfair to the plaintiff if a warning was issued to her on the basis that no formal resolution had been passed to authorise her to conduct cross-border recruitment exercise if a reasonable impression of the conclusion of the IMC meeting was that it was permissible for her to proceed with what she had been doing. E3.1.7 IMC informal meeting held on 20 August 2012 157.It may be recalled that in the course of the discussion on cross-border school bus in the IMC meeting on 20 August 2012, it was proposed by Mr Chu that the discussion should be carried on later upon the departure of the two teacher managers “in the light of the sensitivity of the topic”. While I do not entirely understand why that was necessary (for example, there was no suggestion at the meeting that there was any conflict of interest on the part of the teacher managers), no one raised any objection against the supervisor’s suggestion. However, what was strange was that, after the IMC had completed the discussion of another item (on the request of a teacher for the School to waive his payment in lieu of notice), the meeting came to an end at 4pm without going back to the issue of cross-border school bus. 158.In paragraph 78 of his witness statement, Mr Chu explained that:
159.Before I go on, I should say a few words on the nature of the discussions (which took place after 4pm on the day – “在該校董會會議的正式會議後”) referred to by Mr Chu. 160.According to the minutes and the transcripts of the IMC meeting held on 25 May 2013, there seemed to be different views as to whether the IMC meeting had ready finished at 4pm on 20 August 2012. Mr Lam and Mr Law maintained that there had been a formal pronouncement at that time that the IMC meeting had finished, and it was only because of this that they had left the venue of the meeting. In the end, it was agreed in the IMC meeting held on 25 May 2013 that the “2nd part of the meeting” which started at 4pm on 20 August 2012 should not be regarded as a formal IMC meeting. For this reason, the record of this informal meeting was labelled as “memorandum of the meeting”. 161.In this informal meeting, the issue on cross-border school bus was further discussed. The said memorandum recorded that:
162.It is indeed confusing to note that Mr Chu had stated “不要投放資源招收跨境學生” in this informal meeting. There is a question as to whether he was only objecting against the School entering into a contract with the school bus company or whether he was objecting against the School conducting cross-border recruitment altogether. 163.Taking into consideration the fact that Mr Chu had expressed that there should be “跨境/本地雙線招生” in the IMC meeting held on the same day, I am of the view that it was more likely than not that Mr Chu’s view “不要投放資源招收跨境學生” was made in the context of the arrangement of cross-border school bus only but not generally on cross-border recruitment. It should also be noted that the words “不要投放資源招收跨境學生” were included in the section in which the issue on “cross-border school bus” was discussed, rather than under the topic of “cross-border recruitment”. Further, as the IMC’s counsel reminded the court during the trial, one has to be very careful to distinguish the concept of “招收跨境學生” and “跨境招收學生”. Only the latter phrase involves recruitment activities conducted out of Hong Kong. 164.The said interpretation of those Chinese words is also consistent with:
165.Before I complete my discussion on this informal meeting, I should add one more observation on the interpretation of IMC meeting minutes and other memorandum of informal meetings in the present case. 166.I note that from many minutes and memorandum, it was not clear whether any decision or consensus had been reached upon IMC members’ discussions. While some of the items were recorded to have been voted on, there were other items in respect of which there was no such record, and the minutes/memorandum concerned only recorded the discussions. 167.The informal meeting held on 20 August 2012 serves as a very good example. As can be seen above, the memorandum only recorded Mr Chu’s objection against the plaintiff signing any contract with the cross-border school bus company. It gave an impression that that was the consensus reached in the meeting. However, a subsequent email sent by Ms Iu to the plaintiff (with Mr Lee, Mr Ho and Mr Mak copied) on 25 August 2012 showed that it was not. The email reads:
168.This email was sent in response to the plaintiff’s email to Ms Iu dated 24 August 2012 by which the plaintiff stated that:
169.From Ms Iu’s email dated 25 August 2012, it seems that the plaintiff had attached a draft contract to her email dated 24 August 2012 for Mr Chu’s consideration. 170.If it had been decided in the informal meeting on 20 August 2012 that the plaintiff shall not sign any contract with the cross-border school bus company, I wonder:
171.In my view, the inference that can be drawn is that there was no decision made on 20 August 2012 as to whether the School should enter into the contract under its own name, despite Mr Chu’s objection as expressed in the informal meeting. 172.This highlights the potential danger that can arise if the court draws inference on the decision reached from the views of individual managers as recorded in the minutes or memorandum. E3.1.8 Meeting on 3 September 2012 173.On 3 September 2012, some managers went to the School again. Mr Chu described this occasion in the following way in paragraph 79 of his witness statement:
174.Mr Chu then further explained:
175.A memorandum had been prepared by Ms Iu to record what had happened in this meeting. The relevant parts thereof read:
176.The plaintiff stated in her evidence that Mr Chu had already signed the said cheque on 30 August 2012, and therefore she only needed one more manager to sign the cheque on 3 September 2012 before it could be submitted to the organiser of the SZ Exhibition. In other words, the plaintiff did not require Mr Chu to sign this cheque again on 3 September 2012. I accept her evidence in this regard, because it can be seen from a copy of the cheque dated 30 August 2012 that two signatures are on the cheque on which the “CANCELLED” chop was affixed. 177.This leads to the question: why would Mr Chu sign this cheque on 30 August 2012 despite the alleged consensus reached on 20 August 2012 that the School should not conduct any recruitment exercise in the Mainland? 178.In my view, Mr Chu’s conduct was consistent with his stance all along. In February 2012, he had given his approval for the plaintiff to undertake recruitment exercise in the Mainland. In the IMC meeting held on 20 August 2012, he stated that there should be “跨境/本地雙線招生”. He then signed the cheque on 30 August 2012. Furthermore, the said memorandum did not record that Mr Chu had raised any objection or query on 3 September 2012 on the payment of $7,600 (see further below). All these corroborate the plaintiff’s evidence that Mr Chu had been supportive of what she had done in the Mainland. 179.It is also remarkable to note in the memorandum referred to above that it was not recorded that Mr Chu had raised any objection against conducting recruitment exercise in the Mainland, and it seems that only the managers who were present were not agreeable to this, for Ms Iu only recorded that “校董指示胡校長: 長遠不能依賴非華語學生及跨境學生，不能投放太多時間及資源在「跨境招生」上；日後要着重本地招生，尤其青衣區 […]” and “校董表示不申請及不簽署有關支票，校長卻表示不能取消申請，故校董命秘書用手機拍照有關文件及査詢情況。” I am sure that if the instructions were given by Mr Chu, Ms Iu would have put down “supervisor” rather than “manager” in the memorandum. This also supports my view that Mr Chu was in fact supportive. However, he probably could not do anything about the managers’ refusal to sign the cheque at this meeting. This is also supported by Ms Iu’s evidence in paragraph 57 of her witness statement in which she stated that:
E3.1.9 Meeting on 14 September 2012 180.On 14 September 2012, Mr Lee, Mr Mak, Mr Ho and Ms Iu had a meeting with the plaintiff again. These were the same people who met the plaintiff on 3 September 2012 (save that Mr Chu could not attend this time). 181.There is no evidence as to who initiated this meeting. According to Mr Chu, since he had been admitted into the hospital in early September 2012, he had instructed the aforesaid managers and Ms Iu to follow up with the investigation into the matter concerning the SZ Exhibition. It was probably because of this that the meeting was held. 182.The audio recording and transcripts of this meeting had been placed before the court. The following parts of the transcripts[23] (the plaintiff did not dispute the accuracy thereof) which recorded what the plaintiff said in the meeting should be noted:
183.I am of the view that what the plaintiff said in this meeting as quoted above are important because they show that:
184.On the question of whether the School could withdraw from the SZ Exhibition, I note that it was one of the rules and regulations of the SZ Exhibition (which was attached to the application form) that:
185.However, given what the plaintiff said in the meeting, and taking into account the result of the enquiry made by Ms Iu with the organiser of the SZ Exhibition (“不付款則當作取消”[24]), I find it as a fact that it was possible for the School to withdraw from the SZ Exhibition without paying. 186.In any event, it is very clear that the managers who attended this meeting had expressed their views that they objected against spending further financial recourses of the School on the SZ Exhibition, and that the plaintiff was not allowed to proceed with cross-border recruitment even with her own money. 187.However, the problem is, what is the significance of the view of the managers who were at this meeting? As the IMC’s counsel recognised, “neither [Mr] Chu nor a few members of IMC could approve matters on behalf of the whole IMC. This is a matter of law and the IMC’s articles”[25]. Only three managers were there. If a few members of the IMC could not validly approve matters, the reverse must also be true – a few members could not disapprove matters. Of course, I have not forgotten the IMC’s argument that “the plaintiff should not undertake certain act without the IMC’s approval”. But as it can be seen from my analysis in various issues in this Judgment, it is evident that the IMC had not always followed such a principle. 188.Hence, taking the IMC’s case to the highest, it can only be said that three managers had indicated their disagreement for the plaintiff to conduct recruitment exercise in the Mainland. 189.At the end of this section, I feel necessary to say a few words on the role of Ms Iu in the operation of the IMC. It is noted that, at the material time, she was a secretary of the Foundation, but she was not a manager of the School. However, she had attended most of the IMC meetings and other informal meetings of managers of the IMC. 190.According to her:
191.Ms Iu described herself as having been “in attendance” (“列席”) at IMC meetings and other meetings concerning the School. With respect, in my view, that does not reflect the reality. As revealed by the transcripts and audio recordings of various IMC meetings and other meetings, she had not only attended the aforesaid meetings, but had also actively participated in the discussion of various matters as if she were a manager of the School. At times, she had even interrogated the plaintiff in those meetings. The only thing that she did not do was to vote. I do not think it is an overstatement to say that her participation (in terms of asking the plaintiff questions, confronting the plaintiff, making suggestions, giving her views, etc.) in various IMC meetings had been more active than many other managers. 192.I should make it clear that in the course of considering what had been discussed in the IMC meetings (especially those in which no clear resolution had been passed or consensus reached), I shall disregard Ms Iu’s views expressed in those meetings. When considering the effect of certain informal meetings among managers, I would bear in mind that Ms Iu should not be counted as a participant since she was not a manager at all. E3.1.10 15 – 16 September 2012 193.As aforesaid, it is undisputed that the School had participated in the SZ Exhibition. In this regard, the plaintiff explained in her witness statement that:
194.It is not an easy task to decide on whether the plaintiff had indeed called up Mr Chu in the morning of 15 September 2012. On one hand, if the plaintiff considered it necessary to seek further clarification from him, I would have thought it would be more logical if she did that soon after the meeting on 3 September 2012:
195.With some hesitation, I come to the view that it was more likely than not that the plaintiff had indeed called up Mr Chu on 15 September 2012 as alleged:
196.I also accept, though not without hesitation, that in effect Mr Chu had asked her to ignore the view of Mr Lee and Mr Mak. When coming to this conclusion, I have reminded myself that, for reasons which I have explained earlier, I should think twice before accepting the plaintiff’s oral evidence when such evidence is not supported by documentary evidence. However, as I pointed out, there is no evidence (apart from Mr Chu’s witness statement) which shows that, as at 15 September 2012, Mr Chu was holding a view against conducting recruitment activities in the Mainland. E3.1.11 Was the IMC justified to warn the plaintiff? 197.Having considered different episodes in relation to the SZ Exhibition, I now turn to the crucial question: Was the IMC justified to issue Warning 3 in relation to the SZ Exhibition? 198.Before I do so, I should set out the IMC’s case as pleaded in paragraph 14(8) of the Re-Re-Amended Defence and Counterclaim:
199.When considering the crucial question referred to above in this action, this court should ask: Has the IMC proved its pleaded case? 200.I find that it has not, for the following reasons:
201.It is therefore my finding that the IMC was not justified in issuing Warning 3 in relation to the SZ Exhibition. 202.I have not lost sight on the IMC’s complaint that the plaintiff had given inconsistent account on whether she had applied for 1 or 2 booths at the SZ Exhibition and whether the School’s booking could be cancelled before the event. As I have found above, the plaintiff had indeed not been truthful in her explanation on these matters. However, as this was not part of the IMC’s pleaded case, I do not think I should take these matters into account. 203.Furthermore, given (i) the then practice of the IMC that it would not pass resolution on all necessary matters and (ii) the split views of the managers in relation to cross-border recruitment, I do not think it is fair to the plaintiff if a warning was issued to her on this matter. 204.The IMC pleaded its case in respect of “SZ Service Centre” under Warning 3 in paragraph 14(8)(e) of its Re-Re-Amended Defence and Counterclaim as follows:
205.The plaintiff’s case in answer to this complaint is that the SZ Service Centre was operated pursuant to the express approval given by Mr Chu, the supervisor of the School. 206.In my view, the same approach should be adopted, namely, that the court should not consider only (and rigidly) whether there was any resolution passed by the IMC for the operation of the SZ Service Centre, but should consider all the background facts and decide what is fair in the circumstances. 207.I accept that the SZ Service Centre was related to the recruitment activities conducted in Shenzhen. Therefore, the discussion above on SZ Exhibition should be equally applicable to the issue concerning SZ Service Centre. 208.I therefore accept the plaintiff’s evidence that Mr Chu had given his consent for the SZ Service Centre to be operated. 209.I therefore conclude that the IMC was not justified in issuing Warning 3 to the plaintiff. E4. Warning 4 – Mismanagement of the School’s finances 210.On 26 November 2012, the IMC issued another warning letter to the plaintiff for her mismanagement of the School’s finances in respect of the expenses incurred on cross-border recruitment, sponsorship fees for the Ta Ku Ling School, and the costs of graduation photo DVDs. 211.The IMC’s pleaded case in the Re-Re-Amended Defence and Counterclaim was as follows:
212.I will now discuss the allegations in turn. 213.The complaint on cross-border recruitment under Warning 4 is “sharing of resources”. 214.The same issue had already been dealt with in section E1.2 in the earlier part of this Judgment which is applicable herein. In short, once the IMC has accepted that section 72(a) of the Code of Aid is inapplicable, that would be the end of the IMC’s case as far as paragraph 14(2) of the Re-Re-Amended Defence and Counterclaim is concerned. 215.I should also add that I do not agree that there was any “sharing of resources” anyway. As Mr Chu accepted, out of the total sum of $146,273, the School was only responsible for $71,572, and the Kindergarten was obliged to pay for the remaining $73,701. In other words, the School and the Kindergarten only paid for their own respective shares. 216.The IMC’s pleaded allegation in relation to the graduation DVD was also made on the basis of section 72(a) of the Code of Aid. For the reason which I explained under section E1.2 of this Judgment, the IMC’s case must be dismissed. 217.Under this item, the IMC alleged that the plaintiff had caused the School to sponsor a sum of $7,360 towards a fund-raising event of the Ta Ku Ling School on 28 June 2012 in the name of the School and the Kindergarten without prior approval of the IMC. 218.The sponsorship was in the form of an advertisement placed in the booklet published by the Ta Ku Ling School for the said fund-raising event. The advertisement (which occupied half a page of the publication) served to introduce the School with an emphasis that it would only take 20 minutes to travel to the School from Huanggang (皇崗). There were also words of compliments published under the joint names of Mr Chu (as supervisor of the School) and Mr Lam (as supervisor of the Kindergarten). 219.It was the evidence of the plaintiff in her witness statement that:
220.Mr Chu accepted that the plaintiff did ask him to support the fund-raising event and that he had answered positively. This was what he stated in his witness statement:
221.There are 3 different limbs of complaint in relation to the sponsorship:
222.There is no dispute that the plaintiff had not obtained formal approval from the IMC before placing the advertisement. 223.However, the question is, if the IMC had never insisted that the plaintiff should obtain the IMC’s approval of all matters, was it reasonable for the IMC to suddenly make an allegation against the plaintiff that she had been guilty of misconduct so as to justify the issuing of a warning? I do not think so. 224.In my view, the court should pay close attention to the timing and chronology of all matters. It must be noted that the sponsorship fees to the Ta Ku Ling School were incurred in June 2012. At that time, no warning or reminder had ever been issued to the plaintiff. It must still be unclear at the time as to when the plaintiff should obtain a formal approval from the IMC before certain act was done. 225.Mr Lee had explained in court about when a resolution of the IMC was required but I think he was referring to this as part of the approval procedure under tendering/quotation process which in my view is not applicable to the sponsoring fees paid to the Ta Ku Ling School. As I said, I do not accept that the Foundation’s Procurement Guidelines were followed by the IMC at the material time. 226.It is also unrealistic for Mr Chu to suggest in his witness statement that the Foundation’s Procurement Guidelines should have been followed as if the plaintiff was placing an advertisement on a newspaper. 227.On the other hand, I have referred above to Mr Chu’s oral evidence given in court that the plaintiff had to decide herself whether any matter was important enough for a prior approval to be sought from the IMC. I suppose this must be right, as I can imagine that a school principal has to deal with many different situations and would have to make a lot of decisions every day. However, one must appreciate that there may be occasions when a clear line cannot be drawn. 228.In relation to this complaint, I would have to firstly decide whether I accept the plaintiff’s evidence that she had sought the supervisor’s approval before she went ahead with committing to the sponsorship on behalf of the School. 229.When I consider this question, I must bear in mind Mr Chu’s admission that the plaintiff did consult him about supporting an event of Ta Ku Ling School and that he had agreed to it. This is an important starting point. 230.If the plaintiff had asked Mr Chu for his approval, then the next question would be: was it likely that the plaintiff did not explain further what “support” she proposed the School to give? In this regard, I find it odd to see that Mr Chu, upon admitting in paragraph 113 of his witness statement that the plaintiff had asked him about supporting the event, did not go on and elaborate on the conversation which followed. I would have thought that if the plaintiff had asked Mr Chu to give support to a fundraising event, it would be natural for Mr Chu to find out more about what support the plaintiff had in mind. However, Mr Chu did not explain further in his witness statement on this. Instead, he changed the focus, and started to talk about what he thought the support would be according to his own experience, as if the conversation ended there. With respect, that does not make sense to me. What he was asking the court to believe was that he agreed to show his support to a fundraising event without knowing exactly what the proposed support was. This is incredible. 231.He even tried to suggest in his witness statement that the plaintiff had only mention about the event “briefly” (粗略), so as to give others an impression that he did not know much about the event. This would only reinforce my view that if the plaintiff had really been so brief, then he would have asked for more details rather than giving his consent in such circumstances. 232.Taking into account the plaintiff’s rationale in supporting this fundraising event, the fact that the advertisement published in the booklet was apparently advocating the concept that the location of the School was close to the border (hence, convenient to cross-border students) and Mr Chu’s support of the idea of recruiting students from the Mainland, I hold that it is more likely than not that the plaintiff had indeed sought and obtained approval from Mr Chu to do what she did, namely, to sponsor the fundraising event by placing an advertisement in the booklet. 233.Furthermore, it is noted that a cheque dated 25 June 2012 was issued for the payment of $7,360. According to the plaintiff’s explanation, this cheque must have been issued to the Kindergarten as reimbursement of the School’s half share, as the Kindergarten had paid Ta Ku Ling School in full first. The summary of the cheque was “贊助賀打鼓嶺嶺英公立學校2012籌款晚會”. Mr Chu was one of the signatories of this cheque (as he must be one of the three authorised signatories of all the cheques issued by the School). In other words, this cheque must have been signed by Mr Chu shortly after he had indicated his approval to pay for the sponsorship fees. If, as Mr Chu alleged, he only expected that a small amount of money would be spent on buying a flower basket or a small gift of a value of a few hundred dollars, he must have been shocked to see that this cheque was issued. However, there was no such evidence. 234.In my view, all of the above show that the plaintiff had indeed sought Mr Chu’s approval before the School committed to pay the sponsorship fees to Ta Ku Ling School. I do not think it is fair for the IMC to blame the plaintiff for not seeking the IMC’s approval before doing so, for even the supervisor did not advise the plaintiff that a formal resolution from the IMC was necessary before the plaintiff went ahead with the sponsorship. E4.3.2 The Foundation’s Letter dated 31 January 2012 235.The IMC alleged in its pleadings that in sponsoring the Ta Ku Ling School fundraising event, the plaintiff had contravened the Foundation’s Procurement Guidelines. 236.However, this was no longer argued by the IMC’s counsel at the trial. 237.In my view, counsel must have made the right decision in not arguing this point, for the Foundation’s Procurement Guidelines are clearly inapplicable. 238.Further, as I found above, the IMC was actually not following the Foundation’s Procurement Guidelines at the material time. 239.Moreover, as mentioned, it should not be treated as if the plaintiff was placing an advertisement in a newspaper, which would render it necessary for her to compare the advertisement fees charged by different newspapers. E4.3.3 Use of Government’s subsidy 240.The last complaint was that the plaintiff had used money in the “Government Funds” account to pay for the sponsorship fees. According to EDB, this was not permissible, and therefore the School had to deposit the equivalent amount of the sponsorship fees into its “Government Funds” account by using its own funding. 241.I agree that it must be a mistake on the part of the plaintiff in causing the sponsorship fees to be paid from the “Government Funds” account. 242.However, there is no evidence that the plaintiff did that intentionally. 243.Issuing a warning letter to the principal is a serious matter, which was not supposed to be done lightly. In my view, paying an item of expenditure from the wrong account per se and for the first time, would not warrant such a serious treatment. 244.The IMC also alleged in its written closing submissions that there was a problem of “sharing of resources”. It was argued in paragraph 175.4 thereof that:
245.With respect, I do not understand how the School could be said to have shared its resources with the Kindergarten by agreeing with the Kindergarten to pay for half of the sponsorship fee each for publishing a whole page of advertisement in the booklet, with the School and the Kindergarten occupying half page each. As the IMC’s counsel put it, they had just pooled their resources together. 246.In any event, the allegation of “sharing of resources” pleaded in paragraph 14(2) of the Re-Re-Amended Defence and Counterclaim did not concern sponsorship fees. In other words, as far as the sponsorship fees are concerned, the allegation of “sharing of resources” was not pleaded. Hence, the IMC is not entitled to rely on this complaint in the action herein anyway. 247.I therefore conclude that the IMC was not justified in issuing Warning 4 to the plaintiff. E5. Warning 5 – Retirement age 248.On 26 November 2012, the IMC issued a warning letter to the plaintiff for her maladministration in retaining staff who exceeded the retirement age prescribed by the Foundation in its letter dated 20 April 2009 (“Foundation’s 20/4/2009 Letter”). 249.The Foundation’s 20/4/2009 Letter reads:
250.There is no dispute that at the material time, there were indeed five (5) staff members working for the School who were over the age of 60. 251.In paragraph 9(12) of the plaintiff’s Re-Re-Amended Reply and Defence to Counterclaim, in answer to the allegation under this warning, she pleaded that:
252.I reject these arguments. 253.Firstly, it is futile for the plaintiff to focus on the applicability of the Code of Aid to the staff members concerned because it is crystal clear to this court that the intention of the Foundation’s 20/4/2009 Letter was apparently to extend the applicability of the Code of Aid to cover those who were initially not so covered. 254.Secondly, I do not agree with the plaintiff’s counsel that the Foundation’s 20/4/2009 Letter was only minded to cover those staff members who were “within the establishment”, because if it was so, there was no point in issuing the said letter at all. 255.In relation to this, the plaintiff’s counsel argued that since some schools under the Foundation were unaided, it was necessary to ensure that those unaided school would also follow EDB’s guideline on retirement age. I do not accept this argument, because it is apparent that the plaintiff as the principal of the School was also one of the recipients of the Foundation’s 20/4/2009 Letter. There is no evidence that the said letter was issued to the plaintiff by mistake. 256.Thirdly, I do not accept the plaintiff’s argument that the term “教職員工” meant “teaching staff” only, which cannot be the natural meaning of this term. The term clearly means more than teaching staff, for example, clerical staff and janitors. 257.Fourthly, I do not accept the plaintiff’s evidence that she had sought clarification from Mr Chu on this matter. Neither do I accept that Mr Chu had ever told her that there was no need to follow the instructions under the Foundation’s 20/4/2009 Letter. This is because the wordings of the said letter were so clear that I do not think the plaintiff, as a principal, would need further assistance on its interpretation. Furthermore, if Mr Chu had really told her that there was no need to follow the Foundation’s instructions, I am sure the plaintiff would have mentioned this in the IMC meeting held on 22 November 2012 when she was given a chance to explain her alleged breach of the Foundation’s 20/4/2009 Letter. However, the plaintiff did not give this straight forward explanation in that meeting. Rather, she mainly relied on the “within the establishment” argument at the time. 258.Fifthly, the pleaded case under paragraph 9(12)(c) that it would be unlawful for the plaintiff to terminate the staff members’ contract prematurely is rejected for it is unsupported by evidence. 259.Finally, in their written closing submission, the plaintiff’s counsel further argued that the IMC had never adopted the Foundation’s 20/4/2009 Letter as its policy. I refuse to consider this new argument as this had not been pleaded in the plaintiff’s pleadings. 260.To conclude, I accept that the IMC was justified to issue Warning 5 to the plaintiff. E6. Warning 6 – 4 warning letters to Ms To 261.A record of verbal warning replacing a record of verbal warning given earlier on 20 August 2012 was issued on 26 November 2012 for the plaintiff’s maladministration in issuing 4 warning letters on a single day (6 February 2012) to a Ms. To, a teaching staff of the School, who was found guilty of plagiarism in setting examination papers. 262.On this matter, the IMC pleaded in paragraph 14(4) of the Re-Re-Amended Defence and Counterclaim that the plaintiff had breached her duties in:
263.There was no dispute that Ms To had indeed practised plagiarism when she set examination papers for 4 different examinations. It also seems that the IMC agreed that the misconduct on the part of Ms To was serious enough for warning letter to be issued. However, the IMC contended that only one warning letter should have been issued to Ms To. 264.The plaintiff, on the other hand, alleged that Mr Chu had given his approval to issue 4 warning letters to Ms To. She also explained that it was appropriate to issue 4 warning letters because 4 different examinations were involved. 265.In their written reply submission, Mr Li and Mr Miao made it clear that “it is not the IMC’s contention that the plaintiff required the IMC’s approval before issuing any warning letter to Ms To”[31]. 266.That being the case, and with the aforesaid background, what this court has to consider is:
267.Before I consider these questions, it is necessary to set out the following matters:
268.It is important to note that, according to the minutes of the IMC meeting held on 15 February 2012, neither did the IMC nor Mr Chu had ever complained therein that there was any procedural problem when the plaintiff issued warning letter to Ms To. In particular, Mr Chu did not say in that meeting that he was not informed at all before any warning was given by the plaintiff to Ms To. In my view, that is because there was no dispute that Mr Chu had been kept informed about the issuance of warning to Ms To all along. 269.That being the case, I am astonished that the IMC decided to issue a verbal warning to the plaintiff for the fact that 4 warning letters instead a single warning letter had been issued to Ms To. While the IMC had kept emphasising that it was “maladministration” for 4 warning letters to be issued in such circumstances, this court had never been enlightened as to the significance of issuing 4 warning letters (with each letter covering one examination) as opposed to 1 letter (which covers all four examinations), nor did the IMC refer to any basis (such as the Code of Aid or any circular issued by EDB) for saying that the plaintiff was wrong in issuing 4 warning letters. In my view, there was no difference at all in substance. The only difference was in form. If the School were to take further action against Ms To subsequently (for example, pursuant to the procedure provided under Appendix 8 of the Code of Aid), I do not think the School could realistically say that because 4 warning letters (which covered one examination each) were issued, the matter should be treated more seriously than if there was only 1 warning letter (which covered 4 examinations in total). 270.The IMC alleged that EDB had not indicated that the warning letters had been properly issued. In this regard, I have the following observations:
271.Because of the fact that there was no difference in substance (as opposed to form) in the two ways in the handling of the same matter, I am of the view that it was more likely than not that the plaintiff did not ask Mr Chu specifically for permission to issue 4 warning letters instead of 1 warning letter to Ms To. However, I do not think that matters, because I accept that Mr Chu had agreed to warn Ms To in principle. 272.In my view, the only procedure which the plaintiff had probably omitted to follow was to provide Mr Chu with copies of the warning letters issued to Ms To (as there was no evidence from anyone that such copies had been provided by the plaintiff to Mr Chu for record). However, even if that was the case, it would not affect the ruling herein, because such omission, in my view, was not the focus of the complaint in this action, and in any event, such omission per se would not warrant the issuance of a verbal warning to the plaintiff. 273.Before I complete this section, it is necessary for me to deal with one more matter, which has an impact on the court’s overall evaluation of Mr Chu’s evidence. It is this. While considering the evidence on Warning 6, I find that, with greatest respect, the way Mr Chu handled this matter had reflected very poorly on him. 274.It may be recalled that, Mr Chu had submitted a report dated 29 March 2012 to EDB. In this report, he alleged that the plaintiff had confessed that it was improper (“做法不妥善”) to issue 4 warning letters on the same day. He even stated that he had given a verbal warning to the plaintiff. 275.I have already referred to the plaintiff’s written explanation dated 5 March 2012. In this document, the plaintiff did not make any confession as such. 276.Although Mr Chu had stated in his witness statement that he had talked to the staff member(s) concerned before issuing the written report dated 29 March 2012 to EDB, he did not mention that he had ever talked to the plaintiff during such a process. 277.I therefore wonder when the plaintiff had made such alleged confession (“做法不妥善”) to him. 278.In this regard, it was the evidence of the plaintiff that she had confronted Mr Chu on the content of the said report:
279.Having taken into account the matters referred to above, I regret to say that I find that Mr Chu, facing Ms To’s complaint which EDB required him to follow up, had conveniently shifted the blame to the plaintiff, and misrepresented that the plaintiff had admitted her wrongdoing when she had never made any such admission at all. I also hold that it was more likely than not that Mr Chu did comfort the plaintiff as alleged. 280.The above conclusion is also reinforced by the complaint letter issued on behalf of Ms To on 24 May 2012. It was issued in relation to another complaint which I will discuss below. However, part of the letter concerned this complaint. It reads:
281.This is consistent with my view that Mr Chu’s prime objective was to make sure that EDB would not lay any blame on him as the supervisor of the School, even if that means he had to accuse others unjustifiably. 282.To conclude, it is my finding that the IMC was not justified to issue Warning 6 to the plaintiff. E7. Warning 7 – MPF Contributions 283.On 25 May 2013, a warning letter was issued in relation to the plaintiff’s handling of the employees’ contribution to MPF for some of the staff members, and her increment of their salaries without the IMC’s approval after she was asked to rectify the situation. This complaint was pleaded in the following way in paragraph 14(10) of the Re-Re-Amended Defence and Counterclaim:
284.In this regard, the following factual matters are undisputed:
285.The plaintiff’s defence, in a gist, was that all the arrangements regarding MPF contribution and the corresponding increment in the staff members’ salaries had been approved by Mr Chu. She pleaded in paragraph 9(15) of the Re-Re-Amended Reply and Defence to Counterclaim as follows:
286.In my view, before the proposal for the School to pay for the 5 employees’ 5% MPF contribution was implemented, it should have been approved by the IMC by way of a resolution, because that involved the usage of the funding of the School. There is no dispute that no such resolution had ever been passed by the IMC at the material time. 287.Be that as it may, if Mr Chu had indeed verbally approved such an arrangement, I do not think it would be fair for the IMC to issue a warning to the plaintiff, as Mr Chu should have brought this matter up for the IMC’s approval himself, bearing in mind that he, as the supervisor of the School, was responsible for setting the agenda of IMC meetings[32]. 288.The question is: Did the plaintiff seek Mr Chu’s approval back in 2008 as alleged? 289.The only pieces of documentary evidence relied on by the plaintiff in support of her case that she had sought Mr Chu’s approval were the “Expense Summaries” which had been placed in IMC meetings for the managers’ consideration. The plaintiff argued that on the face of those documents, the MPF Arrangement must have been apparent to the managers as well as the supervisor, and it was undisputed that neither Mr Chu nor the managers had raised any objections before 2012. 290.There were indeed entries in those “Expense Summaries” which appeared as follows in each and every month:
291.Mr Chu explained in court that the “Expense Summaries” were printed in very small fonts and that many managers could not read the wordings because they were suffering from presbyopia. I find it difficult to accept such an explanation, because if they were really minded to read what the “Expense Summaries” presented, I am sure they could have asked for copies printed in larger fonts. 292.However, insofar as it is the plaintiff’s argument that the “Expense Summaries” had presented the situation clearly, I am unable to accept either. This is because even in the normal circumstances in which the staff members had made their own MPF contributions, the employer would hold up such 5% contributions from the employees’ salaries first before paying the balance of 95% of the salaries to the employees. Hence, even in such situations, it is possible to see from the ledgers of the employer that the employer had paid both the employees’ contributions and the employer’s contributions, just that the source of the employees’ contributions was from the employees’ salaries. In other words, on the face of the “Expense Summaries”, the real position may not be as clear as the plaintiff contended. 293.That is the reason why I think the “Expense Summaries” do not assist the plaintiff’s case. 294.I now turn to consider what happened in November 2012. 295.As aforesaid, the matter was brought up for discussion in the IMC meeting held on 22 November 2012. The relevant part of the minutes thereof read:
296.Having listened to the audio recording of this part of the meeting[35], I found that the followings had not been recorded or emphasised enough in the minutes:
297.The discussion ended there. 298.This seems to be the first time when Mr Chu was involved when the topic of MPF Arrangement was brought up for discussion with the plaintiff[41]. 299.However, it is noted that, during the whole conversation, Mr Chu did not query why the plaintiff had implemented the MPF Arrangement without asking for his/IMC’s approval. No other manager had raised this query either in the said meeting. 300.Taking this into account, I am of the view that it was more likely than not that Mr Chu knew and had approved the MPF Arrangement. If he had never heard about it from the plaintiff, I wonder why he did not challenge the plaintiff right away in the IMC meeting. Instead, he decided to let the plaintiff resolve the matter herself. This is quite inconsistent with Mr Chu’s evidence that everything was initiated and implemented by the plaintiff herself without consulting him. 301.The IMC’s counsel argued that the plaintiff’s case that she had asked for Mr Chu’s approval was incredible because there was no reason why the plaintiff could not have simply asked the IMC or Mr Chu to increase the staff members’ salaries, but have to enhance those staff members’ benefit in such a way. 302.As revealed from the audio recording, the plaintiff had explained about the rationale of the MPF Arrangement in the IMC meeting held on 22 November 2012. Briefly, she said she had used this means to keep the basic salary of the staff members at a lower level, so that when those staff left the employment of the School, and if there was any payment payable to them, such payment (which would be calculated by reference to the salary amount) would be kept at a lower level. No matter whether this method was really helpful to the finance of the School or not, I do not think that would affect the court’s evaluation of the truthfulness of the plaintiff’s evidence in this regard, because there was no suggestion by the IMC that the plaintiff had made any personal gain out of such an arrangement, or that there was any allegation that any of those 5 staff members who were benefited from the MPF Arrangement had any close relationship with the plaintiff. I would therefore accept that the plaintiff was having the School’s financial position in mind when she devised the MPF Arrangement. There was nothing incredible as alleged. 303.The IMC further argued that when Mr Chu raised this issue during the said IMC meeting, the plaintiff did not allege that Mr Chu had already approved of the MPF Arrangement. Rather, she only made such an allegation in the IMC meeting on 18 May 2013. 304.With respect, there is nothing in this argument. From the audio recording of the meeting, it is clear that there was no allegation made by anyone in the IMC meeting held on 22 November 2012 that the plaintiff had implemented the MPF Arrangement without authorisation, whereas by the time the IMC meeting was held on 18 May 2013, the consent of the IMC for the MPF Arrangement had been called into question by the auditor by virtue of the auditor’s report and letter both dated 18 April 2013. 305.I now turn to consider the salaries increase in December 2012. 306.The IMC argued in its written closing submissions that:
307.From the minutes of the IMC meeting held on 22 November 2012, it is not apparent as to what exactly had been resolved by the IMC. 308.Reference has to be made to the audio recording which was referred to above. 309.In this regard, it is important to bear in mind that:
310.The last sub-paragraph above was supported by Ms Iu’s email which was sent to the plaintiff on the following day (i.e. 23 November 2012), by which it was recorded that:
311.Without more, I would have no difficulty at all to come to the conclusion that the plaintiff had been authorised to increase the salaries of the 5 staff members involved. 312.The matter was made slightly more complicated by what was said by Mr Chu after (at least) some managers had expressed their consent to Mr Chu’s proposal that the plaintiff be left to rectify the problem. It may be recalled that after a manager’s reminder that it is important to comply with the law, Mr Chu added at the very end of the discussion that:
313.It seems that Mr Chu was saying that the School should also demand the 5 staff members to reimburse the School for the 5% contribution which the School made for them in the past. However, whether this was done or not at the end of the day is not the focus of this action. In my view, this did not contradict the plaintiff’s proposal to increase the salaries of the 5 staff members involved. 314.Subsequent to the IMC meeting held on 22 November 2012, the plaintiff, on behalf of the School, had entered into new employment agreements with the 5 staff members involved on 28 November 2012, pursuant to which their monthly salaries had each been increased by around 5%, with effect from 1 December 2012. 315.At the top right hand corner of each of those new employment agreements, there was a date chop “18 DEC 2012” affixed. According to the evidence of Ms Iu, it was her practice to stamp the date of receipt at the top of the documents which she received for the IMC. I therefore accept that it was more likely than not that those new employment documents had been submitted to the IMC via Ms Iu. 316.In this regard, the IMC argued that:
317.With respect, I do not accept this argument. 318.Firstly, as aforesaid, even though there was no formal resolution passed in the IMC on 22 November 2012, given what had been said in the meeting, I do not think it is fair to say that the plaintiff should be blamed for not coming back to the IMC to seek consent again after 22 November 2012. She had indicated therein what she thought should be the way ahead, and no one had raised any objection. What the managers were concerned was that the School should not continue with the MPF Arrangement. Mr Chu had also asked the plaintiff to proceed with resolving the matter herself. 319.Secondly, given Ms Iu was just a secretary of the Foundation, it was more likely than not that she had at least passed the new employment agreements received to Mr Chu for his perusal. The fact that Mr Chu did not raise any concern there and then supports the plaintiff’s case that she had been given the consent to proceed with increasing the staff members’ salaries. 320.To conclude, I am of the view that the IMC was not justified to issue Warning 7 to the plaintiff. E8. Warning 8 –Renting out 6/F Classrooms 321.On 25 May 2013, the IMC issued Warning 8 to the plaintiff in relation to her renting the 6/F Classrooms out to HKAA. 322.Warning 8 contained quite a number of allegations against the plaintiff. The plaintiff’s counsel summarised them as follows:
323.The IMC’s counsel, by reference to Mr Chu’s witness statement, summarised the IMC’s case as follows in their written closing submissions:
324.However, the IMC’s pleaded case was much narrower than the scope of Warning 8 and the summary above. It was pleaded in paragraph 14(11) of the Re-Re-Amended Defence and Counterclaim that:
325.In other words, the allegation only focused on the plaintiff’s entering into the contract dated 30 December 2011 (“the HKAA Contract”) without the knowledge and/or consent of the IMC. 326.As I explained at the beginning of this Judgment, parties are bound by their pleaded case. I will therefore only deal with the IMC’s case as pleaded. 327.The plaintiff defended the IMC’s pleaded allegation on the following grounds:
328.In essence, the plaintiff alleged in her pleadings that the plaintiff had entered into the HKAA Contract with the consent of the IMC and/or Mr Chu. 329.Before I go on, it is necessary to set out the terms of the HKAA Contract. It reads: “借用場地合約
330.Although it was not described as such, it is apparent that this is a tenancy agreement:
331.As far as the “sponsorship fee” is concerned:
332.I have no hesitation in finding that, when she entered into the HKAA Contract, the plaintiff knew that it was improper to rent the classrooms out by a tenancy agreement. It is also beyond imagination that Mrs Chan would endorse the plaintiff’s proposal to rent the classrooms out as alleged, and even suggest that the term “sponsorship fee” be used. The plaintiff’s evidence in this regard is totally incredible. 333.Further, there was no dispute that the plaintiff knew at the material time that EDB had issued a circular No.5/2011 on “Hire of Accommodation in Aided Schools”, under which, among other things, it was stipulated that:
334.In the present case, it is undisputed that the IMC had never established any such policy for fee charging. 335.Furthermore, it can be seen from the Schedule of Charges for Hire of Accommodation[49] (“the Schedule of Recommended Charges”) that the recommended charges for the hiring of classrooms were expressed on hourly basis. It is not difficult to understand that, in the normal circumstances, classrooms would only be hired for hours rather than days, not to mention for weeks, months or even years. 336.Moreover, under the HKAA Contract, the School had hired the 6/F Classrooms out at the rate of $23,000 per month. That means the hourly rate of hiring each classroom was only $6.388 ($23,000 ÷ 30 ÷ 24 ÷ 5). This was very substantially lower than the rate under the Schedule of Recommended Charges, even if we compare the said rate with the hourly rate of $60 applicable to non-profit-making charitable organisations. 337.With the very unusual features of the arrangement in mind and EDB’s stipulation that the policy for levying charges had to be approved by IMC, in my view, there was no uncertainty in the mind of the plaintiff at the material time that she must seek the IMC’s approval before she entered into the HKAA Contract. 338.In this regard, the plaintiff stated in paragraph 31 of her witness statement that:
339.The first IMC meeting after the date of the HKAA Contract was held on 15 February 2012. The minutes thereof did not record that the plaintiff had sought the IMC’s ratification of the HKAA Contract. Neither did the plaintiff say at any time positively that she had done so therein. 340.In other words, even according to her own evidence, she had failed to inform the IMC about the HKAA in good time. 341.As in other incidents, the plaintiff alleged that she had sought Mr Chu’s approval before she entered into the HKAA Contract. She stated in paragraph 88 of her witness statement that:
342.While the plaintiff might have informed Mr Chu that she had found a sponsor who agreed to pay sponsorship fee to the School on a monthly basis, I do not accept the plaintiff’s evidence that she had asked for his approval to rent the 6/F Classrooms out as alleged. I have come to this view for the following reasons. 343.Firstly, if the plaintiff had done so, she would have sent a copy of the HKAA Contract to Mr Chu or Ms Iu for record. However, she had never stated in her witness statement that she had done so. There is no evidence of any document which showed a date chop affixed on a copy of the HKAA Contract. Neither is there any email showing that the plaintiff had sent a soft copy of the HKAA Contract to Ms Iu. 344.Secondly, by letter dated 2 April 2012, the plaintiff requested the Foundation to lend the School $200,000 so as to pay for the air-conditioning installation fee, and proposed that the School would repay by 10 instalments of $20,000 each. However, the HKAA Contract was not attached thereto in support of the School’s application. 345.In my view, if the plaintiff had really informed Mr Chu about the HKAA Contract, it would be natural for the plaintiff to provide the Foundation with a copy of that document so as to persuade the Foundation that the School had the ability to repay. 346.I hold the view that the plaintiff did not do that because she did not want to disclose the HKAA Contract to others. As a matter of fact, according to the minutes of the Foundation’s Board of Directors meeting held on 17 December 2012, the plaintiff had explained in the Foundation’s Board meeting on 15 May 2012 that the sponsorship fee of $23,000 to be received from a private institution was for the hiring of the use of the school hall. That reinforces my belief that the plaintiff had all along not revealed the full details of the HKAA Contract to Mr Chu. 347.Thirdly, even if the plaintiff did inform Mr Chu that HKAA would use the 6/F Classrooms (which I doubt), I do not accept that the plaintiff had informed him about the full details of usage. Indeed, even in paragraph 88 of her witness statement (which I quoted above), the plaintiff only mentioned that the classrooms were only used for the storage of musical instruments. This is consistent with the explanation which the plaintiff had given to EDB as recorded in EDB’s letter 13 March 2013[50] in which it was stated that the plaintiff told Mrs Chan and a Mr Ho of EDB during their visit to the School on 7 March 2013 that the 6/F Classrooms were rented out for storage of musical instruments. However, as can be seen from various photographs, it is undeniable that one of the classrooms was used as an office, and two other classrooms were used for rehearsals or even performances/competitions. 348.What is remarkable is that even though it is clear from the photographs that one of the classrooms was undoubtedly used as an office (this can be shown by, for example: (i) a number of work stations had been set up neatly with monitors; (ii) there was a printer with printed documents found on the output tray of the printer; (iii) personal belongings such as decoration and umbrella were put at one of the work stations), the plaintiff still disagreed that the classroom was in fact used as such. 349.If the plaintiff was so reluctant to accept that one of the 6/F Classrooms was used as an office under cross-examination when she was shown photographs of the usage thereof, it is difficult for the court to accept that she had informed Mr Chu about the true position on her own initiative. Hence, any approval given by Mr Chu (if any) would not have been an informed one and cannot be relied upon by the plaintiff herein. 350.Fourthly, the plaintiff relied on the Expense Summary to support her case that Mr Chu knew about the HKAA Contract. I do not accept that argument. It is simply not apparent from the entries that the plaintiff had entered into an agreement to rent the 6/F Classrooms out to others for 3 years. 351.Fifthly, when the plaintiff’s assertion that she had sought Mr Chu’s approval was challenged in the Foundation’s Board of Directors meeting held on 17 December 2012, there was the following dialogue:
352.It can be seen that when the plaintiff was confronted, she initially only referred to the monthly Expense Summary. She did not say that she had asked for Mr Chu’s approval. 353.When she was further asked whether she had reported the matter in meetings, she answered positively. However, it is evident that the issue concerning “sponsorship fee” (not to mention renting out of the 6/F Classrooms) had never been discussed in any IMC meeting prior to this Foundation Board Meeting:
354.I hold the view that the plaintiff had only bluffed in the Foundation’s Board meeting. What she alleged was not supported by any documentary evidence. Her gut reaction when she was challenged was just to deny any wrongdoing, no matter whether such denial was supported by any valid basis at all. 355.I therefore conclude that the IMC was justified in issuing Warning 8 to the plaintiff. E9. Warning 9 – Funding for substitute teachers 356.On 25 May 2013, a warning letter (replacing a warning letter issued on 20 August 2012) was issued by the IMC for the plaintiff’s maladministration in wrongly representing that the School did not have sufficient resources to hire substitute teachers, and in representing subsequently when the mistake was discovered that her mistake was caused by the wrong calculation done by Mr. Chiu, a clerical staff of the School. 357.I will first of all set out the main events which led to this complaint:
358.The IMC pleaded its case in the following way:
359.The IMC’s complaints as pleaded are therefore 3-fold:
360.The plaintiff did not deny that she had indeed informed the teachers in March 2012 by mistake that the funding designated for hiring substitute teachers was nearly exhausted and therefore the teachers might need to be assigned as substitute teachers if other teachers were on leave. However, she had given certain explanation at the trial. 361.She also stated that, despite the mistake, that would not affect Ms To, because the funding could only be used to hire substitute teachers if a teacher took leave for 3 consecutive days or more. If any teacher were to take leave for less than 3 days, it was still possible for Ms To to be assigned as a substitute teacher because it was the policy of the School that those who had taken more leave would be required to take up more lessons for other teachers who were absent. E9.1 Assigning Ms To as substitute teacher 362.In the IMC’s written closing submissions, the IMC had focused on the question of whether the plaintiff or Mr Chiu should be blamed but did not make submissions on the fairness in assigning Ms To as a substitute teacher repeatedly on the part of the plaintiff. That is understandable, because it is noted that the IMC itself had explained to EDB by letter dated 25 June 2012 that according to the policy of the School, teachers who had taken more leave himself/herself would be assigned to take up more lessons as substitute teacher. Further, the substitute teacher duty record produced by Ms To in support of her complaint showed that, during the complaint period, there was no teacher who had taken leave for 3 consecutive days or more. Hence, no substitute teachers would be hired externally anyway even if funding was available. 363.That being so, I would say no more on Ms To’s complaint on fairness. E9.2 Reason for the plaintiff’s provision of inaccurate information 364.I now turn to consider the reason why the plaintiff had provided inaccurate information to the teachers. 365.In this regard, the plaintiff had provided various reasons and some of them are contradictory to one another. 366.On 3 October 2012, the plaintiff explained to Mr Chu in writing, among other things, that:
367.In this explanation, the plaintiff did not mention about any mistake. It seems that she was suggesting that the reason why the situation had been changed from “funding not available” to “funding available” was because of her making adjustment to the available resources. 368.In the IMC meeting held on 22 November 2012, the plaintiff explained that she was informed by Mr Chiu that there was no more funding available and therefore she informed the teaching staff accordingly. The relevant part of the transcripts read:
369.The plaintiff’s counsel submitted that the punctuation marks in the transcript in this context did not provide guidance as to who did the mental arithmetic and that it is clear that the plaintiff was told the days of sick leaves taken by the teachers rather than the result of calculation directly. Having listened to the audio recording myself, I do not accept this submission. From what the plaintiff said, she was clearly conveying a message that she was told by Mr Chiu that there was no more funding available and that it was Mr Chiu who did the calculation. Further, it could not be made clearer by what I highlighted in the quoted part of the transcripts above that the plaintiff said “話俾我聽冇錢”. 370.In the written explanation which the plaintiff submitted to Mr Chu on 3 December 2012, she wrote that:
371.Again, the plaintiff was representing that it was Mr Chiu who informed her that there was no more available funding to hire external substitute teachers after he had done the calculation. 372.In the IMC meeting held on 28 January 2013, the plaintiff explained that:
373.The plaintiff was clearly blaming Mr Chiu for his wrong calculation in this meeting. 374.In her witness statement, the plaintiff had the following to say:
375.The plaintiff’s then changed her explanation in her supplemental witness statement which stated as follows:
376.It can be seen that sometimes the plaintiff said the mistake was caused by Mr Chiu’s ignorance of certain policy, and at other times she had explained that it was due to his miscalculation, and sometimes it was said that there was misunderstanding. 377.The IMC’s counsel submitted that the fact that the plaintiff had put forward these inconsistent accounts would by itself suggest that none of these accounts was true. 378.While I agree that the court should not accept the plaintiff’s evidence lightly in view of her ever-changing explanations referred to above, I would not go so far as to conclude right away that none of her accounts was true. The court should consider all the relevant evidence carefully and find, if possible, what had probably happened at the material time. 379.At this point, I should refer to Mr Chiu’s written explanation which he provided on 3 March 2014. He explained what happened at the material time in the following way:
380.Ms Iu explained that the above written account was obtained from Mr Chiu in 2014 for the sake of prudence, because he was going to retire soon. 381.Although there might well be a conflict of interest here (it might be said that since either the plaintiff or Mr Chiu should be blamed, there might well be a motive for Mr Chiu to shift all blame to the plaintiff), I would accept that it was more likely than not that what Mr Chiu stated above represented the truth. I therefore find that what the plaintiff explained in paragraph 5(b) and (c) of her supplemental witness statement was more likely than not to be the truth. 382.In such circumstances, should the plaintiff be blamed and has the IMC established successfully the allegations pleaded in paragraph 14(5) and (6) of the Re-Re-Amended Defence and Counterclaim? 383.So far as the allegation that the plaintiff had misinformed the staff members of the School on the availability of funding for hiring substitute teachers is concerned, I am of the view that that was caused by a pure misunderstanding between the plaintiff and Mr Chiu when the plaintiff asked Mr Chiu about the figure of sick leave. With the benefit of hindsight, of course the plaintiff should have made her enquiry in a clearer way. However, I do not think that should lead to a warning. 384.I should also add that in fact, it is evident that, once the plaintiff had discovered that a mistake had been made, she had informed Mrs Chan of EDB on 15 June 2012 by way of a memorandum (“the Memorandum on Sick Leave”). The following is an excerpt of what was said during the IMC meeting held on 22 November 2012:
385.The Memorandum on Sick Leave which Ms Liu referred to was a document which was signed by Ms Liu, Mr Tam (the teacher who was responsible for arranging for substitute teachers), Mr Chiu, Mr Chow (assistant clerk) and the plaintiff. According to Ms Liu, this was a letter which clarified that the School had made a mistake in the calculation of the funding. 386.Pausing here, I note that the IMC’s counsel argued that it was unclear from the Memorandum on Sick Leave that it meant that the School still had funding for hiring substitute teachers. I agree that it was indeed unclear on the face of the said document. However, it is noted that there seem to be appendices which were sent together with the Memorandum on Sick Leave, but those appendices were not included in the trial bundle. It is therefore unknown as to whether the position would be made clearer by those appendices. Having said that, the Memorandum on Sick Leave appears to be the only document which the School sent to Mrs Chan before she sent a letter dated 9 August 2012 to Mr Chu (apart from Mr Chu’s letter dated 25 June 2012). Yet, she could make the comment that the plaintiff had clarified the position on resources in hiring external substitute teachers. I therefore find that the documents sent to EDB on 15 June 2012 should be clear enough. 387.Coming back to the discussions in the IMC meeting held on 22 November 2012 which were quoted above, I take the view that such discussions are important because they support the plaintiff’s evidence given in the supplemental witness statement that:
388.I have not lost sight of the records taken by Ms Iu for the meeting between Mrs Chan and Mr Chu held on 15 August 2012 in which Mrs Chan stated that it was EDB which discovered the plaintiff’s mistake. However, I would accept the plaintiff’s evidence in this regard nonetheless because her case is supported by contemporaneous documents as well as Ms Liu’s explanation referred to above. 389.If Ms Iu had already received the said documents on 15 June 2012, then it led to the question as to why Mr Chu still proceeded to confirm with EDB 10 days later on 25 June 2012 that the School had no more available funding to hire external substitute teachers in that academic year. 390.Given Ms Iu’s acceptance in the IMC meeting held on 22 November 2012 that she had received those documents, in my view, there is a possibility that those documents were somehow not forwarded to Mr Chu for his attention. If that was indeed the case, then why should the plaintiff be blamed for Mr Chu’s provision of inaccurate information to EDB subsequently on 25 June 2012? 391.However, I do not think I have to make any finding here in that regard, because, as aforesaid, I am of the view that the whole matter was caused by an unfortunate misunderstanding between the plaintiff and Mr Chiu. In my view, a warning was not warranted in such circumstances anyway. 392.But what was even more unfortunate was that, Mr Chu, despite Ms Liu’s explanation, maintained in the IMC meeting held on 22 November 2012 that:
393.With respect, this is quite consistent with Mr Chu’s attitude which I have referred to in the earlier part of this Judgment[62]. As far as the mistaken belief that there was no further funding available for hiring substitute teachers is concerned, I do not agree that a warning must be issued. Indeed, EDB had never made such an indication in its letter dated 9 August 2012, nor in the meeting held on 15 August 2012. It seems that Mr Chu was very determined to make sure that he could report to EDB that he had “dealt with the matter” (“交代俾教育局”). Probably more importantly from his perspective, he wanted to inform EDB unequivocally that he was not the one who was at fault. E9.3 The plaintiff’s awareness of available funding 394.I now come to the last allegation under Warning 9, namely, that the plaintiff had dishonestly fabricated an explanation that she was not aware of the availability of funding designated for the hiring external substitute teachers in the School when all along the availability of such funding was known to her. 395.The IMC had not made any submission in this regard. 396.In my view, this allegation is unsupported by the evidence adduced before the court. 397.I therefore conclude that the IMC was not justified in issuing Warning 9 to the plaintiff. E10. Warning 10 – Employment contract of Mr Chan 398.On 25 May 2012, a warning letter was issued for the plaintiff’s maladministration in entering into an employment contract with Mr. Chan (陳嘉釗) without the IMC’s authorization. 399.The IMC pleaded its case in paragraph 14 of the Re-Re-Amended Defence and Counterclaim as follows:
400.The plaintiff’s Re-Re-Amended Reply and Defence to Counterclaim pleaded in paragraph 9(16) that:
401.It can be seen that the plaintiff had entered into two employment contracts with Mr Chan. The first one was dated 24 July 2012 (“the First Employment Contract”), under which the report duty date was 1 September 2012. The second one was dated 4 September 2012 (“the Second Employment Contract”), under which the report duty date was 25 September 2012. 402.It seems that the following issues arise from the respective cases of the parties:
403.Before I consider the above issues, it is necessary to highlight what Mr Chu stated in his witness statement and his evidence given under cross-examination. Once that is done, most of the crucial issues involved (apart from the one on conflict of interest) can be answered without much difficulty. 404.In Mr Chu’s witness statement, he stated that:
405.When he was cross-examined by Ms Poon at the trial, Mr Chu’s evidence was quite different:
406.I now turn to consider the 5 issues identified above. 407.The first issue is: was the plaintiff required to secure the IMC’s approval before entering into any employment with Mr Chan? 408.The IMC’s counsel have referred this court to section 50(a) of the Code of Aid which provides that:
409.I agree that approval had to be given by the IMC for the employment of teachers. Regulation 76(1) of the Education Regulations also provided that:
410.Be that as it may, I find that it was not the then prevailing practice of the IMC that it would pass resolutions as such at the material time. This is because, according to Mr Chu’s evidence, the plaintiff did relay Mr Chan’s request for a 3-week leave to various managers of the IMC sometime after 20 August 2012, on a day when there was a Foundation Board of Directors’ meeting, and it was agreed by the managers who were present at that time that Mr Chan’s employment contract should be revised such that he should only report duty on 25 September 2012. If it had indeed been the IMC’s requirement that all appointments of teachers must be approved in a IMC meeting beforehand, I wonder why none of the managers who were present at that time had raised this query, but agreed to postpone the date of commencement of duty. 411.Furthermore, the plaintiff, in her supplemental witness statement, stated that the practice of her signing employment contracts with teachers had started in 2008, and she had signed a total of 6 employment contracts between 2008 and 2010 (2 contracts per year)[65]. If there was indeed any problem with such a practice, I wonder why no manager had ever raised this issue beforehand. 412.Apart from the aforesaid 6 employment contracts and the contracts of Mr Chan, according to the plaintiff’s evidence, she had also signed 4 other employment contracts with 4 teachers on behalf of the supervisor: three contracts were signed on 24 July 2012 and one on 31 August 2012[66]. However, surprisingly, the court’s attention had not been drawn to any discussion (or complaint) in relation thereto. If it would amount to “maladministration” for the plaintiff to sign Mr Chan’s First Employment Contract, I do not understand why it would be permissible for her to sign those other contracts at around the same time. 413.Furthermore, if it was indeed the necessary procedure adopted by the IMC for it to give approval before any teacher could be employed, should that requirement be equally applicable when the decision not to retain Mr Chan was made on 24 September 2012? I have referred to the meeting held on that day beforehand, in which only 4 managers, namely, Mr Lee, Mr Mak, Mr Ho and the plaintiff, were present. Although Mr Law and Mr Lee Tung Sing had given their views by phone that the Second Employment Contract should not be backdated, they did not attend the meeting. Therefore, this was not a proper IMC meeting as such because the quorum of “not less than half of the number of the managers”[67] was not met. Indeed, it was not purported to be an IMC meeting, because the record of this meeting was referred to as a “memorandum” rather than “minutes”. In the said memorandum, it was recorded that “由於胡校長來電稱明天要覆教育局有關縮班及削減教席問題，朱德榮校監因病授權李智鋒校董代為處理，秘書致電校董即日24/9/2012 4:30pm 到會所約見胡校長”. If the supervisor could delegate his power to deal with the issue concerning the employment of Mr Chan to Mr Lee, then how could it be said that the IMC’s approval was a must? 414.Indeed, this is not the first time when I have referred to this phenomenon: while it was the IMC’s case that it was inadequate for the plaintiff to seek approval from the supervisor on various matters and that a resolution from the IMC was a must before she could validly and properly undertake certain act, it can be seen from the conduct of the managers themselves that they did not act in this way: a small group of them (especially those who were concurrently directors of the Foundation (i.e. the sponsoring body of the School)) would meet and give instructions to the plaintiff, as if they had the authority to represent the entire IMC, or put it bluntly, as if “they were the IMC”. 415.In fact, it was recognised by the IMC’s counsel that “Neither [Mr] Chu nor a few members of IMC could approve matters on behalf of the whole IMC. This is a matter of law and the IMC’s articles”[68]. However, that was how the IMC operated at the material time. 416.That is the reason why I hold the view that fairness requires the court to consider the next question: whether Mr Chu had given his approval for the plaintiff to handle the employment matter of Mr Chan, which I will do below. 417.It was the plaintiff’s case that Mr Chu had authorised her to sign the employment contract with Mr Chan on his behalf, and that as a result she had proceeded to sign the First Employment Contract and the Second Employment Contract. 418.I should point out at the outset that this was not permissible pursuant to section 55(a) of the Code of Aid, which provides that:
419.However, in my view, such a breach of section 55(a) of the Code of Aid would not affect the analysis herein. If Mr Chu had indeed authorised the plaintiff to sign employment contracts, then the plaintiff should not be blamed. Whether the EDB would take any other actions is not a matter which this court should take into consideration. 420.Mr Chu, in his witness statement which I have quoted above, maintained that he did not authorise the plaintiff to enter into employment contracts as alleged and his ignorance about the First Employment Contract and the Second Employment Contract. I have no hesitation in rejecting such evidence as untruthful for the following reasons. 421.Firstly, Mr Chu accepted that he had signed a document “資助小學學校聘任教學人員” on 1 August 2012 in relation to the employment of Mr Chan. Although he said he did not spend much time to read this document (“唔會點睇”), I do not accept that he did not even notice that that was a document which was going to be submitted to EDB for the appointment of a new teacher. If he had not authorised the plaintiff to employ any new staff members, it would not be difficult to realise (when he saw the aforesaid document) that the plaintiff was doing something without his authorisation. Yet, he had signed the document without raising any query. 422.Secondly, he admitted under cross-examination that he knew and approved the employment of Mr Chan. 423.Thirdly, he admitted in court that, when the plaintiff raised Mr Chan’s request for 3-week leave on a day after 20 August 2012, various managers agreed to the plaintiff’s proposal to revise the contract so that it would only commence on 25 September 2012 (“你重新改過份合約啦”). That undoubtedly shows that Mr Chu (and other managers who were present when the conversation took place) knew that an employment contract had already been entered into. 424.Fourthly, Mr Chu also admitted expressly in court that “佢簽第二份合約嗰個時候，我哋講咗俾佢聽要點樣改吖嘛，梗係得到我哋同意啦”. That shows that it was a blatant lie when he and Mr Lee alleged that they thought on 24 September 2012 that the School had not yet employed Mr Chan. They were simply pretending that they knew nothing about it so that they could shift all the blame to the plaintiff. 425.Fifthly, as I mentioned above, the plaintiff had signed 6 employment contracts on Mr Chu’s behalf in the period between 2010 and 2012. This was supported by what Mr Chu said in the IMC meeting held on 22 November 2012:
426.If Mr Chu had never authorised the plaintiff to sign employment contracts, it should not be difficult for him to realise that he had not signed any employment contracts at all since 2008[70]. Yet, there is no evidence before the court that he had raised this issue before. In my view, that is because he did give such authority to the plaintiff. 427.When considering this issue, I have also borne in mind that the court has to be very cautious when considering the plaintiff’s evidence, because she could be unreliable at times. This is demonstrated by the written explanations dated 19 October 2012 and 8 June 2013 respectively, in which the plaintiff wrote that Mr Chan requested on 3 September 2012 to take leave for 21 days. This gave an impression that he only applied for leave after he had reported duty on 1 September 2012. But in fact it is undisputed that Mr Chan’s written application for leave was dated 22 August 2012. The plaintiff explained in court that she might not have expressed herself clearly enough and what she meant therein was that Mr Chan could only work until 3 September 2012. I do not accept this evidence, as her meaning as expressed in the aforesaid written explanations was clear. 428.Be that as it may, I accept the plaintiff’s evidence that she had been authorised by Mr Chu to sign the employment contracts upon consideration of various contemporaneous documents, inherent probability and Mr Chu’s evidence given in court. 429.The fact that Mr Chu had signed the EDB document known as “資助小學學校聘任教學人員” without querying why no IMC approval had been sought beforehand gives further support to this court’s finding under section E10.1 above that it was not the practice of the IMC to require prior approval be sought before any new teacher was employed. E10.3 The two employment contracts 430.The next issues which I identified above were the respective dates when the two contracts of employment were signed and the IMC’s knowledge about them. 431.I accept that the First Employment Contract was signed on 24 July 2012. Since the document “資助小學學校聘任教學人員” was signed by Mr Chu on 1 August 2012, the timing of the First Employment Contract makes sense to me. 432.As the plaintiff accepted in court, no formal approval had been sought from the IMC in relation to the signing of the First Employment Contract. However, that would not affect the validity of the plaintiff’s act. Nor could it be said that it was improper for the plaintiff to enter into this agreement, because, as aforesaid, it had been the practice of Mr Chu to leave the matter to be handled by the plaintiff, and it had not been the IMC’s practice to follow the Code of Aid’s requirement strictly in this regard. 433.The Second Employment Contract was dated 4 September 2012. I accept that it was indeed signed on that day. This date also makes sense to me, given the fact that various managers appointed by the Foundation including Mr Chu had instructed the plaintiff sometime after 20 August 2012 (“8月20幾號嗰個時間” – see Mr Chu’s cross-examination quoted above) to revise the First Employment Contract so that the contractual term should commence on 25 September 2012. For the avoidance of doubt, I infer that those managers who had agreed to revise the commencement date of the contract were managers appointed by the Foundation because, according to Mr Chu, the plaintiff raised this matter on a date when there was a Foundation Board of Directors meeting. E10.4 Backdating of the Second Contract 434.Did the plaintiff propose that the Second Employment Contract should be backdated on 24 September 2012? 435.I accept the IMC’s submissions that, by the time when the said meeting was held, the First Employment Contract had already been superseded by the Second Employment Contract, which provided that the contract would only commence on 25 September 2012. 436.In the meeting held on 24 September 2012, the plaintiff did propose that:
437.What the plaintiff was saying was that, despite the supervisor’s earlier disapproval of granting Mr Chan the 3-week leave as requested (and as a consequence the first day of employment had been moved to 25 September 2012 pursuant to the Second Employment Contract), she hoped that the commencement date could be moved back to 1 September 2012, and it should be treated as if a 3-week leave was granted, so that Mr Chan could stay in the School for the rest of the academic year. 438.Mr Lee, Mr Mak and Mr Ho who were present in that meeting together with Mr Law and Mr Lee Tung Sing (who could not attend the meeting) did not agree to the plaintiff’s proposal. As a result, there was no “back-dating” as such. 439.Eventually, the Second Employment Contract was not back-dated as proposed. 440.I do not think (and the IMC’s counsel did not suggest) that the mere fact that the plaintiff had made such a proposal would warrant the issuance of a warning. 441.I therefore do not think that this issue requires further discussion. 442.Lastly, the IMC submitted that the plaintiff’s procurement of Mr Chan’s employment also smacked of suspicion. It may be recalled that it was pleaded that the plaintiff placed herself in a conflict of interest situation. 443.In support of their contention that there was conflict of interest, the IMC’s counsel had pointed out the following matters:
444.Despite the forensic points made by the IMC, I do not agree that there was enough evidence for the court to infer that the plaintiff knew Mr Chan beforehand. Neither would I find that there was any conflict of interest as such. 445.I accept the plaintiff’s explanation that she was very eager to retain Mr Chan as a teaching staff of the School because it would be better to have more manpower. The heavy workload of teachers in Hong Kong is notorious. In my view, there is nothing suspicious about it. 446.There is nothing in this allegation and I reject it. E10.7 Loss caused to the School 447.The plaintiff’s counsel relied on paragraph 56 of Chu JA’s Judgment in the case of Law Ting Pong Secondary School v Chen Wai Wah [2021] 3 HKLRD 185 and argued that in general, a valid contract has legal effects and is enforceable immediately when it is made, irrespective of the time of performance and that therefore the School and the IMC could have asked EDB to pay for Mr Chan’s salary. Hence, it was submitted that the School should not suffer any loss. 448.I can see the force of this argument. 449.Indeed, it was EDB’s policy that surplus teachers (超額教師) would be allowed to continue to be employed by the same school until the end of the academic year. I would have thought the rationale of this policy is to minimise the impact of “cutting of classes” (縮班) on the employment of teachers, so that they would not suddenly lose their jobs after the start of the academic year. Bearing this in mind, it seems to be more sensible if a teacher like Mr Chan in the present case would be regarded as being protected by the aforesaid policy even though he was only going to start performing his job duty under the Second Employment Contract on 25 September 2012. However, apparently that was not the understanding even of the plaintiff herself at the material time. 450.In any event, I do not think I have to make a ruling on this matter, because the IMC’s counterclaim in this respect was premised only on the alleged failure on the part of the plaintiff to seek proper approval from the IMC before employing Mr Chan[72]. Since I have rejected this argument, the question of quantum does not arise. 451.For reasons of the aforesaid, I do not accept that the IMC was justified to issue Warning 10 to the plaintiff. E11. Warning 11 – Renovation of toilets 452.Another warning letter was issued by the IMC to the plaintiff on 25 May 2013 for her financial mismanagement in respect of the renovation costs of toilets in the School, in that she had split up the renovation costs of various toilets to circumvent the procurement requirements imposed by EDB and the Foundation. 453.The IMC’s case had been pleaded in paragraph 14(1)(d) of the Re-Re-Amended Defence and Counterclaim:
454.The IMC alleged that although the total costs of the renovation works were in the sum of $286,260, the plaintiff did not go through the tendering process as required, and that she had deliberately split the bills for the works in order to circumvent the EDB’s procurement procedures. 455.It was further alleged that the quotations provided by a contractor known as 鴻達工程 were obtained by the plaintiff in 2013 after the works concerned had already been completed, in an attempt to answer the IMC’s demand for production of an adequate number of quotations. 456.In reply, the plaintiff relied on the following lines of defence:
457.I have already discussed the applicability of the Foundation’s Procurement Guidelines in section E1.1.1 of this Judgement, under which I held that the IMC had not followed them at the material time, and that therefore only the EDB’s Procurement Guidelines were applicable. 458.As I pointed out, the fact that the IMC was following the EDB’s Procurement Guidelines at the material time was confirmed by Mr Lee who gave evidence at the trial, during which he accepted unequivocally that only two verbal quotations were required at the material time for purchase between $5,000 and $30,000. 459.Further, I also accept the plaintiff’s evidence that all the toilet renovation works had been done before January 2012. Mr Chiu, in his written statement dated 3 May 2014, also confirmed that all the renovation works had been completed by late 2011. Hence, the Foundation’s Procurement Guidelines could not be applicable to the works. 460.In the case where no tendering process was required, paragraphs 48 and 49 of the EDB’s Procurement Guidelines provide that:
461.It can be seen that the EDB’s Procurement Guidelines did not impose a requirement that the principal had to obtain the IMC’s approval first before proceeding with the procurement of service. 462.According to paragraph 14 of the plaintiff’s supplemental witness statement, all that she was required to do was to seek endorsement from the IMC afterwards:
463.While Mr Lee had stated during re-examination that an IMC’s resolution was required if the procurement was of a value of more than $30,000, I do not accept such evidence, as the IMC’s counsel have not drawn this court’s attention to any EDB guideline, IMC resolution or any other documentary evidence which referred to such a requirement. It seems to me that he only mentioned such a figure arbitrarily without any basis. 464.Hence, there are two questions which the court has to consider as far as this warning is concerned:
E11.1 Compliance with the EDB’s Procurement Guidelines 465.There were altogether 11 places in the School which had been renovated, namely:
466.At the outset, the following parts of the EDB’s Procurement Guidelines should be reiterated:
467.In a gist, as a matter of principle, the renovation works should not be split into separate items so as to circumvent the procurement requirements. 468.In this regard, the plaintiff explained in her witness statement that:
469.If the plaintiff was truthful, then it might arguably be said that the renovation works of the individual toilets should not be treated as a single project, and therefore the individual cost of the works should be looked at separately when considering whether the EDB’s Procurement Guidelines had been complied with. 470.On the other hand, the IMC advocated that the works should be considered together but not individually. The IMC’s counsel had drawn this court’s attention to a one-page written quotation of 鴻達工程, under which 10 items of renovation works were included (in other words, all toilets in question were included), and submitted that this shows that even the plaintiff treated the works as a single project for she had obtained a quotation covering all toilets at the same time. 471.In my view, the IMC’s argument might well have over-simplified the matter. One unusual feature of the said one-page quotation by 鴻達工程 is that the costs of the individual items were not added together. In the space for “Total”, “XXXXXXXX” rather than the total sum of the different items of quotation was inserted. I accept that it was more likely than not that 鴻達工程 intended to give 10 separate quotations rather than a single one and it was only out of convenience that all those quotations were put on a single sheet of paper. 472.To decide on the crucial question as to whether the renovation works should be considered together or not, I think it is necessary to consider the timing of the various renovation works. To test the plaintiff’s case, it would also be helpful to consider the source of funds which the plaintiff had allegedly relied on when she decided to proceed with the renovation works of a particular toilet. 473.Unfortunately, it seems that not all the relevant quotations and invoices in relation to the renovation works had been produced in the action herein. Therefore, this court is unable to say confidently whether the IMC was right when it was submitted that all the renovation works of the different toilets should be treated under one single project. 474.Having said that, for the reasons which I will explain below, I am still able to find, by analysing the plaintiff’s own evidence, that she had not complied with the EDB’s Procurement Guidelines, at least in respect of some of the toilets. E11.1.1 Male and Female Toilets on G/F 475.According to the plaintiff’s witness statement[73], in around December 2008[74], she knew that she would receive sponsorship fee from 希伯倫堂. She therefore decided to start renovating the Female Toilet on G/F. 476.According to the plaintiff’s written explanation dated 7 March 2013 and paragraph 119 of her witness statement, the renovation works of the Female Toilet on G/F were started in January 2010. 477.On the other hand, the plaintiff stated in paragraph 117(b) of her witness statement that, since she knew in around January 2010 that she would be able to rent out some vacant classrooms in around September 2010, she decided to start renovating the Male Toilet on G/F. 478.It is evident that永生工程, the contractor which had been engaged to do all the renovation works in question, had issued the following invoices[75] in relation to the works undertaken at the Male Toilet on G/F:
479.On the basis of the above invoices, it can be inferred that the works undertaken at the Male Toilet on G/F were started no later than December 2009. 480.Taking into account the aforesaid, I do not accept the plaintiff’s evidence that she decided in January 2010 to start renovating the Male Toilet on G/F as alleged. She must have made such a decision earlier than that, most likely to be in around November to December 2009. 481.In my view, she had given evidence that she made a decision in January 2010 only for the purpose of supporting her case that the works at the Male Toilet on G/F and the Female Toilet on G/F should be looked at separately. 482.I summarise this court’s findings on these two toilets as follows:
483.In fact, the School’s financial position did not change at all between December 2008 (or December 2009 if the plaintiff’s reference to “December 2008” in her witness statement was a typing mistake) and January 2010. All the School had at the material time was a promise by 希伯倫堂 that they would pay sponsorship fee in due course, which, in the end, only materialized in September 2010. If the plaintiff felt confident enough to start renovating the Female Toilet on the G/F in January 2010, I find that the same confidence had led to her decision to commence the renovation works for the Male Toilet on G/F as well. In other words, it was more likely than not that she had made the decision to proceed with the renovation works of the said two toilets at the same time, even though the actual works might have been done one after another. 484.That being the case, adopting the principle that “items of the same category should be grouped in the same quotation”[82], the plaintiff should have treated the works in those two toilets as one single project. 485.The quotations given by 永生工程 on those two toilets were $25,500 each. The total sum was therefore $51,000. According to the EDB’s Procurement Guidelines, the plaintiff should have followed the tendering process which she had failed to do so. She was therefore in breach of the said guidelines. 486.For the sake of clarity, I first of all set out the plaintiff’s evidence in relation to these toilets as follows:
487.As far as the 1/F Male Toilet is concerned:
488.In my view, the plaintiff’s evidence that the 1/F Male Toilet works were funded by the HKAA sponsorship fee was given in an attempt to distance such works from those done at the 1/F Female Toilet. However, I do not accept that evidence, as the works had commenced well before HKAA approached the plaintiff in August 2011 for renting the 6/F Classrooms. 489.In relation to the 1/F Female Toilet, since the invoices were issued in January 2011, I do not accept that the works were done in May to July 2010 as alleged. It was more likely than not that the works were undertaken by 永生工程 in January 2011 instead. I have not lost sight of the possibility that the contractor, having finished the works in July 2010, had issued the invoices late. However, if that was the case, there was no reason why it did not issue one single invoice covering all works that had been done at the 1/F Female Toilet at one go, but issued 4 different invoices within a period of 3 weeks. In my view, the contractor had issued invoices once a part of the works had been done, and this therefore supports the finding that the works were in progress in the month of January 2011. 490.Therefore, the works at the toilets on 1/F were done very close to each other in time. Both works were funded by the sponsorship fees paid by 希伯崙堂. I can see no reason why they should be looked at separately as two different projects. 491.The contract prices for the works at the Male Toilet and the Female Toilet on 1/F were $23,000 and $30,500 respectively. The total amount thereof ($53,500) exceeded $50,000, and therefore the plaintiff should have gone through the tendering process for those works, which she did not. She had therefore breached the EDB’s Procurement Guidelines. 492.Furthermore, since the contract price for the 1/F Female Toilet exceeded $30,000, two written quotations should have been obtained pursuant to the EDB’s Procurement Guidelines. 493.The plaintiff’s evidence was that apart from 永生工程which eventually was given the job, she had obtained a quotation from 鴻達工程 which had given a written quotation dated 10 May 2009. The IMC argued that since the jobs were eventually undertaken in 2011, the plaintiff was not entitled to rely on a quotation obtained 2 years ago. 494.The plaintiff answered by saying that she in fact had asked 鴻達工程 to give her another quotation in 2011 for the 1/F Female Toilet, however, 鴻達工程replied that they would adopt the quotation which was given to the plaintiff in May 2009. 495.If the plaintiff did in fact ask for another quotation from 鴻達工程as alleged, in my view, that demonstrates that even she accepted that there was a need to ask for an updated quotation given the lapse of time. That must be the right thing to do, because it would be reckless if the plaintiff assumed that 鴻達工程was still willing to do the works for the School at the price which they quoted more than a year ago. 496.However, the problem is that if 鴻達工程answered verbally that they were to adopt the quotation which was issued in 2009, in my view, this “updated quotation” given in 2011 could only be treated as a verbal quotation, because the document issued in 2009 could only be treated as a written quotation obtained in 2009. 497.Hence, since the plaintiff had only obtained one written quotation for the works at 1/F Female Toilet, she was in breach of the EDB’s Procurement Guidelines. 498.The contract prices for the Male Staff Toilet and the Female Staff Toilet on G/F were $30,400 and $30,700 respectively. 499.The prices being more than $30,000, two written quotations should have been obtained for each of those works. However, for reasons which I have explained above in respect of the 1/F Female Toilet, the plaintiff had failed to comply with the said requirement, and therefore she was in breach of the EDB’s Procurement Guidelines. 500.According to the plaintiff’s own evidence in her supplemental witness statement which I have referred to above, she had to obtain endorsement from the IMC in an IMC meeting retrospectively for the renovation works. 501.However, there is no evidence that she had ever done so. 502.I do not agree that the fact that certain cheques had been signed by various managers would be equivalent to getting such endorsement from the IMC. Indeed, if that was enough, the plaintiff would not have said that she was required to seek such endorsement which would have been redundant. 503.For the above reasons, I hold that the IMC was justified in issuing Warning 11 to the plaintiff. E12. Warning 12 – Community Care Fund Scheme 504.A serious warning letter dated 25 May 2013 was issued to the plaintiff for her serious financial mismanagement in failing to comply with the procurement requirements imposed by EDB and the Foundation in relation to the Community Care Fund Scheme. 505.The complaint was pleaded in paragraph 14(1)(e) of the Re-Re-Amended Defence and Counterclaim as follows:
506.The plaintiff received a letter from the EDB dated 7 August 2012 which notified the School that its application to participate in the Community Care Fund Scheme was accepted. 507.Rules governing the usage of the approved fund for the Community Care Fund Scheme and certain “Points to notes” were attached to the said EDB letter as an appendix (“the Community Care Fund Scheme Rules”). Under paragraph 7 thereof (財務安排), it was provided that:
508.Further, under paragraph 10 thereof (採購物品及服務), it was further provided that:
509.It can be seen that the above requirement on the number of quotations to be obtained and when the tendering process should be followed are basically in line with the EDB’s Procurement Guidelines. What is stricter under the CCF Procurement Guidelines is that the School was obliged to choose the contractor who had quoted the lowest price, and it might only depart from this requirement with EDB’s consent. This demonstrates the Community Care Fund Scheme’s emphasis on securing the services at as low a price as possible. It is all the more important that the required number of quotations was obtained in these circumstances. 510.The plaintiff’s defence, as pleaded in paragraph 9(5) of the Re-Re-Amended Reply and Defence to Counterclaim was that:
511.In the plaintiff’s witness statement, she stated that:
512.In a table which was provided by the plaintiff on around 26 April 2013[89], it was stated that the monthly fees payable to each teacher were around $3,500 to $4,500. That means the total sum of money payable to them (if they were engaged for the whole academic year of a total of 10 months) would be ranging between $35,000 to $45,000. Assuming that those teachers were charging an average price in the market (in other words, their prices were not particularly high or particularly low), two written quotations would be required for each of the courses taught by those teachers. 513.The plaintiff did not dispute that she as a matter of fact did not obtain any required number of quotations from the potential service providers. She had on the other hand given a number of reasons for her failure to do so. The reasons include:
514.In my view, these excuses simply cannot explain away the plaintiff’s fault in the whole matter. She could not deny the fact that the CCF Procurement Guidelines had not been complied with. 515.In any event, the plaintiff’s aforesaid excuses must be rejected anyway. 516.Firstly, I do not understand why the plaintiff stated that the School had to start the interest courses no later than 17 September 2012. It can be seen in paragraph 13(a)(i) of the Community Care Fund Scheme Rules that the School was only obliged to start the activities thereunder within 2 months (counting from the date of approval (i.e. 7 August 2012), hence, the deadline should be 7 October 2012). Even in the EDB letter dated 7 August 2012 which had imposed a tighter deadline, the School was only required to start running the scheme within September 2012. 517.Secondly, it is noted that EDB’s letter dated 7 August 2012 had the following to say at the beginning:
518.Paragraph 13(c) and (d) of the Community Care Fund Scheme Rules further provided that:
519.In other words, it is apparent that the School had submitted a proposal for the consideration of the Community Care Fund Scheme. The plaintiff therefore cannot pretend as if she had all of a sudden been required to approach a large number of service providers for quotations. She should have known about the School’s proposal beforehand. She only had herself to blame if she did not ensure that a list of service providers was drawn up in advance so that she could start approaching them for quotations right away upon the approval granted by the Community Care Fund Scheme. It should also be noted that the CCF Procurement Guidelines were basically as same as the EDB’s Procurement Guidelines. Hence, she was not caught by surprise. 520.Thirdly, the plaintiff should have expected that if the School’s proposal was accepted by the Community Care Fund Scheme, the procurement procedures would have to be complied with at the beginning of the academic year. Therefore, she should not blame the heavy workload at the material time. She should have expected that. 521.Fourthly, I do not accept the plaintiff’s evidence that Mr Chu had given his approval to engage temporary teachers. In any event, even if Mr Chu did give such consent, that could not save the plaintiff’s case because:
522.Fifthly, the plaintiff’s attempt to shift the blame to Mr Chu and Ms Iu is totally misconceived. Although she tried to give an impression (by virtue of paragraph 133 of her witness statement) that Mr Chu and Ms Iu had changed their requirements on quotations from time to time since September 2012, the first example which she gave was an incident which happened in December 2012. By then it was already near the end of the first term of the 2012/2013 academic year. No matter what they did, that would not change the fact that the plaintiff had failed to obtain the quotations on a timely basis. For the same reason, I hold the view that what the plaintiff did in 2013 is irrelevant. 523.Furthermore, it would be artificial to the extreme for the plaintiff to argue that there was no need to obtain any quotation because the monthly fees payable to each tutor was less than $5,000. The fact is, there is no evidence which shows that the plaintiff had done anything during the 1st term for the purpose of getting the requisite number of quotations. 524.I therefore hold that the IMC was justified in issuing Warning 12 to the plaintiff. E13. Warning 13 – Principal’s Room 525.On 27 July 2013, a warning letter was issued for the plaintiff’s maladministration in improperly carrying out structural alterations of the Principal’s Room in the School. 526.It is undisputed that modification works had indeed been done to the Principal’s Room. The works involved:
527.When Mr Li SC put to the plaintiff that the newly-created Conference Room could only be entered via the Principal’s Room, the plaintiff disagreed and alleged that the cupboards could be removed without force. This is apparently a misleading answer. From the photographs placed before the court, it is clear that it was not intended that someone would remove the cupboards for the purpose of entering the newly-created Conference Room, because the cupboards, which were placed on a platform, were filled with trophies (on the exterior side facing the corridor) and box files (on the interior side). 528.The IMC’s case was pleaded as follows:
529.The plaintiff’s defence to the above allegations was pleaded in paragraph 9(19) of the Re-Re-Amended Reply and Defence to Counterclaim as follows:
530.As I see it, the issues under this warning are:
531.Insofar as it is alleged that the plaintiff was required to obtain the IMC’s approval before the modification works to the Principal’s Room were done by reason of the stipulation under the Foundation’s Procurement Guidelines, I reject such a submission. As can be seen in my discussions under other warnings above, it is my finding that the IMC had not, at the material time, followed the Foundation’s Procurement Guidelines. There is therefore no basis for the IMC to insist that the plaintiff should have obtained approval from the IMC pursuant to such guidelines. 532.Having said that, I am of the view that it is clear that the plaintiff should have sought the IMC’s approval before the modification works were done because:
533.It is undisputed that the plaintiff had not sought any IMC’s approval as such. 534.In paragraph 43 of the plaintiff’s supplemental witness statement, she alleged that she was only obliged to seek endorsement from the IMC after the modification works had been completed. Even if she was right:
535.The plaintiff alleged in her witness statement that she had informed Mr Chu about the modification works before such works began and Mr Chu had responded positively to what she said. In her own words:
536.I do not accept that the plaintiff had asked Mr Chu for approval as alleged, because when she was confronted in the IMC meeting held on 25 May 2013 by Mr Chu that the modification works had been carried out without approval, all that the plaintiff explained was that it had been the IMC’s practice to show its approval by signing cheques[92]. She did not mention Mr Chu’s approval at all. Neither did she mention about having sought approval from Mr Chu during the IMC meeting held on 20 June 2013[93] nor in her written explanations dated 8 June 2013 and 20 June 2013 respectively. 537.Furthermore, it does not make sense for the plaintiff to say that the IMC or Mr Chu had been giving their approval by signing the relevant cheques, because by then the expenses had already been incurred. 538.It may be recalled that the IMC had pleaded 4 bases upon which it was said that EDB’s approval must be sought before the modification works were done:
539.I will first of all set out the above provisions in full:
540.I am of the view that Section 16.3 of the Code of Aid for Aided Schools is inapplicable because this section concerns “change to room use”. In the present case, there is no change to any room use but a new room had been created. 541.Section 20 of the Education Ordinance is not applicable herein either, because, in my view, it concerns:
542.In the present case, the new Conference Room was situated within the school premises, therefore, none of the above was applicable. 543.I also take the view that regulation 10(b) and (c) of the Education Regulations are inapplicable since we are not concerned with any classroom herein. 544.Hence, only the following provisions are left:
545.Whether regulation 10(a) of the Education Regulations is applicable herein depends on whether the modification works involved any structural alterations. 546.The IMC argued that the modification works involved structural alterations. 547.Firstly, the IMC relied on EDB’s letter to Mr Chu dated 28 June 2013, in which EDB took issue with the School’s failure to obtain the Permanent Secretary’s written approval for structural alterations, including the installation of air conditioning and lighting system in the new Conference Room. This letter reads:
548.Secondly, the IMC relied on the fact that the Permanent Secretary had reiterated the following view in his letter to Mr Chu dated 7 August 2013 which stated, among other things, that:
549.On the other hand, the plaintiff submitted that the works did not involve structural alterations. 550.Firstly, the plaintiff relied on a letter dated 5 March 2012 sent by Good Excel Property Consultants Limited (“Good Excel”) on behalf of the Housing Authority, in which Good Excel indicated that they had no objection to the School’s proposed works. 551.Secondly, the plaintiff relied on EDB’s letter dated 11 May 2012 in which EDB allegedly confirmed that it had been informed of the matters mentioned in the plaintiff’s letter dated 21 March 2012, that it was aware of the new conference room and that no structural alterations were involved. 552.I have some doubts on the effect of Good Excel’s letter dated 5 March 2012. While Good Excel, as Housing Authority’s consultant, indicated in the said letter that they had “no objection” to the proposed works, that does not mean that there were no structural alterations involved in the works. Indeed, the plaintiff was reminded in the said letter that “No structural modification shall be carried out without prior approval”. I therefore accept the IMC’s argument that the Housing Authority did not, by virtue of this letter, indicate that no structural alterations were involved in the works. 553.However, in EDB’s letter dated 11 May 2012, it was stated that:
554.This letter was replying to the plaintiff’s letter dated 7 May 2012, in which the plaintiff wrote:
555.I must admit that when I first read EDB’s letter, I had an impression that it was only reiterating the plaintiff’s representation that there would be no structural alteration involved in the modification works. However, upon perusal of the plaintiff’s letter quoted above, I found that in fact the Plaintiff did not say therein whether the modification works would involve structural alteration or not. Although Good Excel’s letter dated 5 March 2012 was attached to the plaintiff’s letter, but as the IMC pointed out (which I accepted above), Good Excel did not, by virtue of this letter, indicate that no structural alterations were involved in the works. It therefore seems that, by its letter dated 11 May 2012, EDB was really, as submitted by the plaintiff’s counsel, indicating its view on the matter. 556.If that is so, then regulation 10(a) of the Education Regulations would not be applicable because no structural alteration was involved. 557.Even if I were wrong in my view on EDB’s letter dated 11 May 2012 (in other words, even if EDB had not indicated any view on the matter), that would not have any bearing on the above conclusion regarding the applicability of regulation 10(a) of the Education Regulations because:
558.The IMC has therefore failed to prove that the modification works involved structural alterations. Hence, regulation 10(a) of Education Regulation is inapplicable. 559.I now come to the final provision: Clause 8.6.1 of the School Administrative Guide. 560.To recap, the 1st paragraph under this clause provided that:
561.In my view, this clause is wider than regulation 10(a) of the Education Regulations, because “structural alteration work” was only included as one of the covered items. In other words, this clause includes improvement works which do not involve structural alterations. 562.I take the view that the creation of the Conference Room with air-conditioning and lightings installed must fall within the ambit of “improvement works”, and therefore the plaintiff should have sought the approval of the Permanent Secretary. 563.Although the plaintiff did inform EDB about the creation of a new Conference Room by virtue of her letters dated 21 March 2012 and 7 May 2012, I do not think that would be good enough, because the information provided by the plaintiff did not mention about installation of air-conditioning and lighting. In fact, in the “房屋署屋邨非住宅單位進行改裝增建工程申請書” which was attached to her letter to EDB dated 21 March 2012, she had failed to tick the boxes for “更改/加裝冷氣/抽氣裝置” and “更改/加裝電器裝置”. In such circumstances, any view expressed in EDB’s reply letter dated 11 May 2012 was not an informed one. 564.I therefore conclude that the plaintiff had failed to obtain the consent of the IMC and the Permanent Secretary in relation to the modification works done. The IMC was therefore justified in issuing Warning 13 to the plaintiff. 565.On 27 July 2013, a warning letter was issued by the IMC to the plaintiff for maladministration in respect of her delay in distributing book lists to the students. 566.The IMC’s case, as pleaded, was that according to EDB Notice No.42/2013, book lists shall be delivered to the students before the end ofthe 2nd term of an academic year. While the last day of the 2nd term ofthe academic year 2011/2012 of the School was 12th July 2012, book lists were only distributed to the students of the School on 16 July 2012 which had resulted in significant administrative inconvenience to the teachers, students and parents. 567.The plaintiff’s defence was pleaded in paragraph 9(18) of the Re-Re-Amended Reply and Defence to Counterclaim as follows:
568.In her witness statement, the plaintiff elaborated on what happened as follows:
569.For the sake of convenience and completeness, I will deal with the last point raised by the plaintiff first even though, quite rightly, it was not mentioned in her counsel’s written closing submissions again. 570.Although the plaintiff did not dispute that she had an obligation to distribute book lists before the end of the school term, she alleged that such a term did not finish until 31 August 2013, and therefore there was no delay even though the book lists were only distributed on 15 July 2013. 571.This, in my view, is a very desperate argument, and defies common sense. If what she said was indeed a correct interpretation of the requirement, then it would be acceptable even if the book lists were distributed on 31 August 2013, when the school term would start on 2 September 2013 (1 September 2013 was a Sunday). That cannot be right, because parents and students would simply not have enough time to prepare for the new school term. 572.I therefore reject such an argument without hesitation. 573.I now proceed to consider the plaintiff’s explanation that the delay was caused by Mr Chu’s lateness in confirming his/IMC’s choice of book suppliers. 574.It was alleged by the plaintiff that she had no chance to ascertain IMC’s decision on the choice of book suppliers upon her readiness in obtaining the required quotations in June 2013 because:
575.Ms Iu’s email which was heavily relied on by the plaintiff was issued on 28 June 2013. It reads:
576.The said email was issued in reply to the email sent by Mr Chow on 27 June 2013. It reads:
577.Two points should be made here:
578.Hence, if the plaintiff was truthful when she said that the quotations from book suppliers were ready, there was nothing which stopped her from contacting Mr Chu/Ms Iu by phone or email directly, just like what she did on 12 July 2013 when she sent an email to Ms Iu at 11:57am on that day in which she stated:
579.The plaintiff simply did not explain why, if the quotations were ready back in June 2013, she could not have issued this email earlier. Given her acknowledgment that the matter was urgent, it would have been sensible for the plaintiff to contact Mr Chu much earlier, rather than leaving the whole matter to nearly noon on the last day of the school term. 580.The IMC’s counsel submitted that, by relying on what Mr Chow and Mr Wong Kam On explained in the IMC meeting held on 27 July 2013, the quotations from book suppliers were not ready in June 2013 as alleged by the plaintiff. I do not think the court is required to make a finding in that regard: Even if I accept the plaintiff’s evidence that the quotations were ready in June 2013, it would still be her fault in not chasing Mr Chu and other managers for a decision on the choice of book suppliers in early July 2013. This would be so even if Mr Chu had allegedly not given her any reply on 29 June 2013 (which I do not accept, because there was simply no reason why Mr Chu had to ignore the plaintiff in the way the plaintiff alleged). 581.Furthermore, even if the plaintiff had indeed instructed Mr Chow to follow this matter up with Mr Chu, she, as the principal, must still assume prime responsibility in keeping track of the progress, so as to ensure that the book lists could be distributed before the end of the last day of the school term on 12 July 2013. 582.Although the book lists were eventually distributed to the students on 15 July 2013 (i.e. only one working day late), the matter had caused much inconvenience to different stakeholders: the staff of the School had to call up the parents one by one, and the parents had to go back to the School for the purpose of collecting the book lists after the end of the school term. 583.I therefore hold the view that the IMC was justified in issuing Warning 14 to the plaintiff for her failure to procure that the book lists could be distributed to the students no later than the last school day in the 2012/2013 academic year. E15. Warning 15 – Persistent delay in the provision of information 584.A warning letter dated 27 July 2013 was issued by the IMC to the plaintiff for maladministration in respect of her persistent failure and delay in complying with instructions of the IMC and the supervisor of the School. 585.The IMC’s case was that the plaintiff had consistently ignored and delayed in responding to the IMC’s request for information in seven school administrative matters. 586.I will consider these seven areas in turn below first, and will then decide whether the failures (if any), looked at together, would justify the issuance of a warning. 587.Paragraph 14(14)(a) of the Re-Re-Amended Defence and Counterclaim reads:
588.In support of this allegation, Mr Chu only stated in paragraph 186 of his witness statement that:
589.The plaintiff explained in her witness statement that:
590.To understand the IMC’s demand (actually it was mainly Mr Chu’s demand) properly, normally it would be essential to consider the minutes of the IMC meeting held on 20 June 2013. However, having listened to the audio recording and read the transcripts of the said IMC meeting, I take the view that the minutes of the IMC meeting placed before the court were actually quite misleading in that the content thereof did not reflect accurately what had been agreed in the meeting. 591.From what I gathered from the audio recording and the transcripts[96], it appears that:
592.The plaintiff did not submit anything by 5 July 2013. 593.On 5 July 2013, Ms Iu (on behalf of Mr Chu) sent an email to the plaintiff, and chased her for the appraisal reports. The plaintiff was asked to submit those reports no later than 9 July 2013. 594.By referring to a “document receipt record”, the IMC’s counsel submitted that the plaintiff only handed in 20, 3 and 7 self-assessment forms on 10 July, 11 July and 24 July 2013 respectively. The record stated:
595.That was not what was required by Mr Chu in the IMC meeting held on 20 June 2013, in which he had very clearly indicated that he did not need to have self-assessments of the teachers. He wanted to have the comments of the plaintiff and the panel heads of the 4 main subjects only. 596.Indeed, when Mr Li SC cross-examined the plaintiff, he put to her that she had failed to submit any of her assessment of the teachers but had only submitted self-assessments. 597.That being the case, I do not understand why the IMC pleaded that “however, the Plaintiff submitted the report only in (sic) 10th July 2013, 11th July 2013 and 24th July 2013 in batches”, as if the reports which were handed in by the plaintiff on those 3 days included her own comments on the performance of the teachers and staff members concerned. 598.In the light of the instructions of Mr Chu given on 20 June 2013, the explanation given by the plaintiff in her witness statement was also totally beside the point: it was useless for the plaintiff to explain why she submitted the “自評報告” late. 599.I am aware that the plaintiff did mention in her witness statement that : “於2013年6月27日已經提交一部分已經完成的評語給朱校監”, however, I have no idea what those “comments” are, as they have not been included in the trial bundle[97]. Even if they were the comments made by the plaintiff on some of the teachers, it is apparent that those comments did not cover all the teachers as required by Mr Chu. 600.As the IMC is bound by its pleaded case, I would assume that the comments handed in by the plaintiff on 10 July, 11 July and 24 July 2013 respectively were her own comments on the teachers rather than those teachers’ own self-assessments. But even in such a case, she had been late. E15.2 Criteria of provision of redundant teachers 601.The latter part of paragraph 14(14)(a) of the Re-Re-Amended Defence and Counterclaim reads:
602.In paragraph 186 of Mr Chu’s witness statement, he stated that:
603.It can be seen that Mr Chu had mixed his evidence on this complaint with that on the last complaint together. He only mentioned that the plaintiff did not provide him with the criteria by the time when she was summarily dismissed. However, he did not tell the court the circumstances under which the request for information was made. Neither could I find any written communication (such as email) which was dated 17 July 2013. 604.On the other hand, the plaintiff explained in her witness statement that:
605.I have perused the plaintiff’s email which was sent to Mr Chu on 27 October 2010[98]. The document attached to the email had clearly set out a scoring system and criteria for identifying surplus teachers. 606.I also note that there was no evidence produced by the IMC which shows that the plaintiff had been chased after 17 July 2013 for providing the said criteria. 607.Neither did the IMC adduce any evidence to contradict the plaintiff’s evidence that she had been told by Ms Iu that the criteria had been found. 608.I therefore accept the plaintiff’s evidence that she had dealt with Mr Chu’s request for information in this regard. 609.Paragraph 14(14)(b) of the Re-Re-Amended Defence and Counterclaim reads:
610.Although the pleaded allegation was that the request for information on tuning fee was made on 29 June 2013, Mr Chu did not mention such a request in his witness statement. 611.I assume that the IMC was referring to the following letter issued by the supervisor to the plaintiff on 29 June 2013 which reads:
612.In this regard, the plaintiff explained in her witness statement that:
613.I will therefore have to examine the information which was said to have been submitted by the plaintiff on three different occasions and consider whether the details as requested by Mr Chu had been provided. 614.In the tables submitted by the plaintiff on 26 April 2013 (with the title “關愛基金課餘託管計劃 – 活動及費用”, the following pieces of information were provided:
615.It was also mentioned by the plaintiff therein that:
616.On 29 June 2013, a table with basically the same data was presented, save that the status of the cheques included in the table referred to in the preceding paragraphs had been updated (with remarks of either “paid” or “cancelled”). 617.On 5 July 2013, the plaintiff submitted further information which included the quantities of different musical instruments (including brass instruments and Chinese musical instruments) found in the School. 618.On 9 July 2013, the plaintiff faxed the documents which she sent on 5 July 2013 again. 619.In my view, despite the various submissions of information, the plaintiff had not given the full details of the information requested by Mr Chu, in particular, the amount of tuning fees in respect of each item of musical instruments, and the particulars of the tutors in charge of the matter (it was indeed the plaintiff’s evidence in court that it was the tutors who did the tuning). 620.The IMC submitted that the information provided by the plaintiff had given rise to a big question mark on the propriety of the alleged “tuning fees” because:
621.While these are valid points, I do not think I should take them into account under this warning which concerns only the question of whether the plaintiff had persistently ignored or delayed in responding to the IMC’s request for information. E15.4 “Re-construction” of the Principal’s Room 622.Paragraph 14(14)(c) of the Re-Re-Amended Defence and Counterclaim reads:
623.In support of this complaint, Mr Chu stated in his witness statement that:
624.With respect to Mr Chu, his above evidence was quite misleading. 625.Having taking the transcripts of the IMC meeting held on 20 June 2013[99] into consideration, I find that what actually happened was that:
626.It therefore can be seen that the EDB did not demand a reply by 8 July 2013. 627.It turned out that the plaintiff did not put in anything by the said deadline of 8 July 2013. Ms Iu then informed her by email sent on 10 July 2013 that the deadline would be postponed to 12 noon on 11 July 2013:
628.The plaintiff then submitted her written explanations on 11 July 2013. According to the handwritten notes of Ms Iu, the written explanation was handed over to her by Mr Chiu at 4:45pm. 629.On 11 July 2013 (at 5:13pm), the plaintiff sent an email to Ms Iu and explained, among other things, that:
630.Although it is understandable why Mr Chu wanted to have the plaintiff’s written explanation earlier, one should bear in mind that the plaintiff had indicated at the outset that it was difficult for her to comply with the deadline of 5 July 2013 and that her request to have up to 11 July 2013 to provide explanation on the modification works had been approved in the IMC meeting on 20 June 2013. At the end of the day, she did submit her written explanation by the original deadline even though her mother was suddenly hospitalised. 631.Under the above circumstances, I do not think it can be said that the plaintiff had ignored or delayed in responding the IMC’s request for information. This is so even though the plaintiff was around 5 hours late when she submitted her explanation on 11 July 2013. On the other hand, with respect to Mr Chu, I am of the view that it was quite unreasonable for him to threaten the plaintiff in the way he did on 10 July 2013 by means of Ms Iu’s email when the plaintiff could not meet the new deadline of 8 July 2013 which was unilaterally moved forward by him. E15.5 Letting out the School’s facilities 632.Paragraph 14(14)(d) of the Re-Re-Amended Defence and Counterclaim reads:
633.The IMC’s counsel accepted that the request for information here was made against the background of EDB’s letter dated 23 May 2013 pursuant to which EDB required the IMC to provide a response on the lease issue. The requests were:
634.The plaintiff explained in her witness statement that:
635.In the plaintiff’s written explanation dated 14 June 2013, she stated, among other things, that:
636.It seems that Ms Iu then sent a further email to the plaintiff on 15 June 2013 (which was not included in the trial bundle) and asked a number of follow-up questions, which the plaintiff replied on 17 June 2013 as follows:
637.Ms Iu then asked the plaintiff a number of further follow-up questions by virtue of another email dated 4 July 2013 and required her to reply by 12 July 2013. There were altogether 10 questions. For our purpose, only the following ones are relevant:
638.I am aware that as far as the question of whether HKAA had sublet the 6/F Classrooms is concerned, the plaintiff had already answered twice on 14 June 2013 and 17 June 2013 respectively. The IMC apparently was not satisfied with the answers given, and that was why question No.2 was raised on 4 July 2013. While I take the view that the crux of the matter (hanging up of advertisement and storage of photography equipment) should have been raised by the IMC much earlier rather than by way of a follow-up question so that the plaintiff could give her answer at one go, the plaintiff was still obliged to give her full answer to the question raised so that the IMC could give a full response to EDB. 639.In relation to the bank statements of the “002 account”, since “appendix 1” attached to the plaintiff’s written explanation dated 14 June 2013 was not placed before the court, I cannot verify myself whether the bank statements for “002 account” for the period between February 2012 and April 2013 were indeed missing therefrom. However, I would accept that the plaintiff had not provided such bank statements. This is because if she had done so, I suppose it would have been convenient for her simply to send an email to Ms Iu and ask her to refer to her previous reply. However, the plaintiff did not reply further at all. This is unacceptable, because if she were minded to be cooperative, she could simply instruct the responsible officer in the school office to gather the relevant bank statements, and it should not be difficult for such a staff member to retrieve those statements from the School’s record. 640.Paragraph 14(14)(e) of the Re-Re-Amended Defence and Counterclaim pleads that:
641.The plaintiff explained in her witness statement that:
642.There was indeed no evidence that Ms Iu had chased the plaintiff on 9 July 2013 or thereafter for an answer on the “salary increment system”. I therefore accept the plaintiff’s evidence that she had replied to Ms Iu promptly on 5 July 2013 upon her receipt of Ms Iu’s enquiry. E15.7 Cross-border project materials and resources 643.Finally, paragraph 14(14)(f) of the Re-Re-Amended Defence and Counterclaim reads:
644.The plaintiff replied to this allegation in the following way in her witness statement:
645.In the plaintiff’s written explanation dated 8 July 2013, she stated that:
646.On 10 July 2013, Ms Iu, on behalf of the supervisor, chased the plaintiff by email again, and imposed a deadline of 12 July 2013 unilaterally. 647.On 11 July 2013, the plaintiff sent an email to Ms Iu and explained that:
648.The IMC did not allege that the plaintiff was not truthful when she explained that she had to wait for a reply from the responsible person of the SZ Service Centre from the Mainland before she could inform the IMC about the whereabouts of the various materials and resources. 649.In such circumstances, the plaintiff should not be blamed for failing to give a substantive answer to the IMC on the said matter. 650.Indeed, it can be seen that the plaintiff did, even though she could not give any substantive reply to Ms Iu’s enquiry, send her a reply on 11 July 2013. 651.I therefore hold the view that the IMC cannot say that the plaintiff had “ignored or delayed in responding the IMC” as alleged on this matter. 652.I have found that the plaintiff:
653.Out of the above, I would place particular weight on items (2) and (3) because the plaintiff had failed to reply to the IMC altogether. 654.Although I can understand that July is normally a very busy month for a principal, and that July 2013 was particularly hectic for the plaintiff because of the unexpected hospitalisation of her mother and she had been requested by the IMC to provide information and explanation on various matters, I am of the view that she should not have simply ignored the IMC’s request for information in respect of items (2) and (3) above. Her total disregard of those requests would justify the issuance of Warning 15 to her. E16. Conclusion on Reminders and Warnings 655.To conclude, I have found that the IMC was justified in:
656.The next question which the court has to decide is whether the plaintiff had committed a grave breach of duty which justified her being summarily discussed pursuant to section 57(g) of the Code of Aid. 657.I regret to conclude that the plaintiff did commit grave breach of duty and gross misconduct, and therefore the IMC had rightly summarily dismissed her. Out of the above misconducts, some were very serious indeed:
658.Even if the above two matters, considered together, did not amount to grave breach of duty or gross misconduct, I have little doubt that the overall effect of all seven misconducts would be adequate. F. SECTIONS 55 – 57 OF THE EDUCATION ORDINANCE 659.In the Contract, it was stipulated that:
660.The plaintiff had duly accepted the employment accordingly. In the Conditions of Service, it was provided, among other things, that:
661.Sections 55 to 57 of the Education Ordinance provide that:
662.The plaintiff’s argument went like this:
663.I should point out at the outset that the above submissions were factually incorrect in one material aspect. The nature of Mr Wong’s appointment on 16 October 2013 had been clarified by a letter issued on behalf of the Permanent Secretary dated 22 October 2013 as follows:
664.In other words, even if the plaintiff was right that she had remained in office by virtue of section 55 of the Education Ordinance, her tenure as the principal of the School would only last until 15 October 2013, rather than 31 August 2014. 665.As far as breach of statutory duty simpliciter is concerned, a crucial question which the court has to consider is whether the aforesaid statutory provisions confer any private law cause of action on the plaintiff. 666.In the case of Ko Hon Yue v Liu Ching Leung [2008] 1 HKLRD 482, Chu J (as Chu JA then was), had to consider whether the breach of regulation 76 of the Education Regulations would give rise to an action in private law. 667.The said regulation 76 provided that:
668.Her Ladyship held that:
669.Her Ladyship then went on to consider the history of the Education Ordinance and Education Regulations, and dealt with counsel’s argument that the said regulation 76 was a recognition of the special status of teachers in a school and therefore it was intended to give them security of tenure. She continued as follows:
670.In X (Minors) v. Bedfordshire County Council [1995] 2 AC 633 which was cited by Chu J, Lord Browne-Wilkinson held that:
671.It can be seen that, after all, it is the construction of the statute which is of paramount importance. 672.Guidance on interpretation of statute has been given by Fok PJ in T v. Commissioner of Police [2014] 17 HKCFAR 593:
673.In Medical Council of Hong Kong v Chow Siu Shek [2000] 3 HKCFAR 144, Bokhary PJ also had the following to say:
674.Bearing the above principles in mind, I hold the view that the legislature did not intend to confer a private law cause of action by virtue of sections 55 to 57 of the Education Ordinance:
675.The plaintiff’s counsel cited Au-Yeung J’s Decision which was given in the present case at the interlocutory stage while it was still pending in the Court of First Instance[100] in support of their argument that the IMC does not have any independent power to remove the plaintiff from office. The issue before her Ladyship at that time was whether the Labour Tribunal had exclusive jurisdiction over this matter. To understand her Ladyship’s Decision properly, it is necessary to reproduce the whole Section D1 of her Decision as follows:
676.With greatest respect to the plaintiff’s counsel, their reliance on paragraph 28 of the said Decision is totally misconceived. In my view, Au-Yeung J was only setting out the plaintiff’s pleaded case in the said paragraph 28 (which was under section D1 “pleaded causes” of her Decision), rather than holding that “The incorporated management committee of any school simply does not have the independent power to remove a principal from office”. All that it was held (in paragraph 29) was that the arguments set out in paragraph 28 were “plainly open to the plaintiff”. 677.Furthermore, it was not held therein (nor in an earlier Decision given by Chung J in the present case[101] in the plaintiff’s injunction application which was relied on by her counsel) that sections 55 to 57 of the Education Ordinance have created a private law cause of action. 678.The plaintiff’s claim for breach of statutory duty simpliciter must therefore fail. 679.The plaintiff’s alternative argument is that since sections 55 to 57 of the Education Ordinance had been incorporated into the Contract, the IMC’s breach thereof amounted to breach of the Contract. 680.I do not accept this argument. 681.First of all, I do not accept that there was any contractual duty owed by the IMC to the plaintiff to comply with sections 55 to 57 of the Education Ordinance:
682.What I should add is that if the plaintiff is right in that sections 55 to 57 of the Education Ordinance have given her a security of tenure until, for example, the Permanent Secretary has withdrawn her approval pursuant to section 55(c) and 56, that would be inconsistent with other provisions which have also been incorporated into the Contract. For example:
683.The plaintiff’s assertion that a principal cannot be removed until the Permanent Secretary has withdrawn her approval would lead to unjust and undesirable consequences. Say for example, a principal has been convicted of a criminal offence relating to children which undoubtedly would raise serious concern on the safety of the young students in the school if the principal remains in office even for one more day. If the plaintiff is right, then the convicted principal cannot be removed until the Permanent Secretary has officially withdrawn his approval of the principal. This may take time. In the meantime, the well-being of the school children would be at risk. Even if the Permanent Secretary withdraws his approval on the following day, does it mean that the principal should be entitled to be paid for one more day because such a principal has held office until then? In my view, that cannot be right. Section 55 of the Education Ordinance should not be interpreted to mean that the right on the part of the IMC to summarily dismiss a principal is taken away. 684.Furthermore, as the IMC’s counsel pointed out, summary dismissal arises where the employee’s conduct amounts to a repudiation of the contract of employment. It is thus inherent in the nature of summary dismissal that the employer would be able to terminate the employment relationship immediately. The effect of section 55 of the Education Ordinance which the plaintiff advocated would contradict such a basic principle in the employment relationship between her and the IMC. This demonstrates the fallacy of her argument. 685.The plaintiff had relied heavily on the case of Lau Chi Fai & Another v Secretary for Justice & Another [1999] 2 HKLRD 494. In this case, the 1st plaintiff was the principal of an aided secondary school. The terms and conditions on which the school received financial support from the Government were contained in the Code of Aid for Secondary Schools. Section 57 of the said Code provided that a teacher shall retire at the end of the school year in which he reached the age of 60, unless he was permitted to continue by the Director of Education (“the Director”). The 1st plaintiff was due to reach the age of 60 before the 1998/99 school year commenced. However, the school’s council wanted him to remain as principal in the 1998/99 school year. A request was therefore made to the Director, who eventually agreed but made it clear at the same time that the school must appoint a new principal in the 1999/2000 academic year. The 1st plaintiff, together with the 2nd plaintiff who was a member of the management committee suing in a representative capacity, therefore commenced the action and sought declaratory relief that the 1st plaintiff be allowed to continue as principal. The plaintiffs argued that section 57 of the said Code was unenforceable because it was in conflict with section 46(f) of the Education Ordinance which had the effect that unless the circumstances under section 46(a) to (e) and (g) applied (which they did not in that case), the principal of a school who was a registered teacher was entitled to hold office until he reached the age of 70[102]. 686.In his judgment, Keith JA (sitting as an additional judge of the Court of First Instance) first of all held that:
687.It must be emphasized here that when Keith JA talked about “restrictions on the freedom of employers to remove principals from office”, it was said in the context of a case where section 46(a), (b), (c), (d), (e) and (g) did not apply. In other words, the court was not concerned about the scenario where the principal was dismissed by reason of misconduct. 688.The Director argued therein that in the light of section 57 of the said Code, the Director must be regarded as having withdrawn her approval for the principal of an aided secondary school continuing to be the principal of the school once he has reached the age of 60, pursuant to section 56(a) (“no longer a fit and proper person to be the principal”), 56(c) (“ceased to perform the duties of the principal”) and 56(d) (“is no longer acceptable as such to the majority of the management committee”) of the then Education Ordinance[103]. 689.His Lordship considered that the Director was not entitled to rely on section 56(a) or (d):
690.He then proceeded to consider section 56(c):
691.It can therefore be seen that the Lau Chi Fai case is clearly distinguishable from the present case. While section 57 of the said Code could not be enforced against Mr Lau for it had not been incorporated into Mr Lau’s contract of employment, it is the plaintiff’s own pleaded case in this action that the Code of Aid had been incorporated into the Contract. There is no question of enforceability here. 692.Therefore, when the plaintiff was summarily dismissed by the IMC, the Permanent Secretary must be regarded as having withdrawn her approval of the plaintiff being the principal of the School on the bases that the plaintiff was no longer a fit and proper person to be the principal (section 56(1)(a) of the Education Ordinance), that she was not performing the duties of the principal satisfactorily (section 56(1)(b) of the Education Ordinance), that she had ceased to perform the duties of the principal (section 56(1)(c) of the Education Ordinance) and that she was no longer acceptable as such to the majority of the managers of the School (section 56(1)(d) of the Education Ordinance). 693.Furthermore, the employment relationship between the plaintiff and the IMC must also be governed by section 9 of the Employment Ordinance which had been incorporated into the Contract as well. Therefore, the plaintiff’s alleged security of tenure, if any, must be subject to the IMC’s right of summarily dismissing her. 694.The plaintiff’s claim for breach of contract by reason of the alleged breach of sections 55 to 57 of the Education Ordinance on the part of the IMC is therefore rejected. G. CONCLUSION ON THE PLAINTIFF’S CLAIM 695.For the above reasons, I dismiss the plaintiff’s claim against the IMC for:
H. THE PLAINTIFF’S CLAIM – QUANTUM 696.I now proceed to consider the quantum of the plaintiff’s claims. This is necessary despite the conclusion above for the following reasons:
697.To recap, the plaintiff claims herein for the following heads of damages:
H1. Provident fund balance prior to dismissal 698.I would deal with the plaintiff’s claim for provident fund balance prior to her dismissal (under item 3 above) first because this is a claim which the plaintiff alleged that she would be entitled to anyway even if her summary dismissal was justified. 699.It is her pleaded case that:
700.The IMC argued that there is no such thing as “provident fund contributed by the defendant [IMC] for the benefits of the plaintiff”. This court’s attention has been drawn to rules 7 and 9 of the Subsidized Schools Provident Fund Rules (Cap.279D) which govern contributions made by the plaintiff and donation made by the Government respectively. There is no provision stipulating that the IMC would have to contribute towards the provident fund for the benefit of the plaintiff. 701.It has also been provided in the Contract that:
702.Indeed, in paragraph 47 of the plaintiff’s own supplemental witness statement, she stated that
703.It can therefore be seen that even the plaintiff admitted that it was not the IMC which was withholding her provident fund. 704.The reply to the IMC’s aforesaid argument made by the plaintiff’s counsel was that:
705.With respect, this is not a reply to the IMC’s argument at all. 706.The plaintiff’s claim in this regard must therefore be rejected, on the simple ground that the subject matter of the plaintiff’s claim was non-existent. 707.Without disrespect to counsel, for the above reason, I would not deal with parties’ arguments on whether the IMC should be liable to the plaintiff for government donations to the provident fund. 708.For the sake of completeness, I would cover the following two scenarios:
709.In the case where the plaintiff’s summary dismissal was justified, but she had remained in office after 27 July 2013 by reason of sections 55 to 57 of the Education Ordinance, the plaintiff argued that damages should be calculated up to her scheduled retirement date (31 August 2014) because Mr Chow’s principalship was only confirmed in November 2014 pursuant to section 55 of the Education Ordinance. 710.She alleged that she would be entitled to 4 heads of damages, namely:
711.With respect, I do not accept that the plaintiff was in office until her scheduled retirement date, for this has totally disregarded the effect of the letter dated 22 October 2013 which was issued on behalf of the Permanent Secretary. As I pointed out earlier under section F of this Judgment, in this letter, it was already clarified that the approval of Mr Wong’s appointment as acting principal should be regarded as the exercise of the Permanent Secretary’s power pursuant to section 55(d) of the Education Ordinance. In other words, the plaintiff’s tenure as the principal of the School would only last until 15 October 2013, rather than 31 August 2014. 712.Furthermore, I accept the IMC’s argument that in determining when the contract would come to an end in the case of wrongful dismissal, the court would assume that the employer would have brought the contract to an end at the earliest date that he could properly do. In Gunton v London Borough of Richmond upon Thames[1980] 3 All ER 577, Buckley LJ held at 589h – i that:
713.The above quotation was cited with approval by Tang ACJHC (as he then was) in Ko Hon Yue v Liu Ching Leung & Ors[2011] 1 HKLRD 733 at paragraph 48. 714.In my view, even if the plaintiff is right that the appointment of an acting principal cannot be treated as an exercise of power pursuant to section 55(d) of the Education Ordinance, the Permanent Secretary could have withdrawn her approval for the plaintiff to be the principal on 16 October 2013 pursuant to sections 55(c) and 56(1)(d), on the ground that she was no longer acceptable as such to the majority of the managers of the School. Indeed, the appointment of an acting principal in the place of the plaintiff is a clear indicator of the Permanent Secretary’s agreement that the plaintiff should be replaced. 715.Hence, under this scenario, the plaintiff’s entitlement to damages should only be calculated up to 15 October 2013. 716.Out of the 4 heads of claims, I have dismissed the plaintiff’s claim on balance of provident fund allegedly contributed by the IMC in the period between 1 September 1996 and 27 July 2013. 717.The plaintiff’s claim for the balance of provident fund for the period starting from 28 July 2013 should also be dismissed for the same reason. Although in paragraph 414 of the plaintiff’s written closing submissions, she had changed the description of this claim to “damages for loss of government donation to the plaintiff’s MPF”, this cannot salvage the claim because this is not the plaintiff’s pleaded case. 718.The plaintiff claims for loss of income for the period after her summary dismissal. For reasons which I have explained above, her entitlement should only be calculated up to 15 October 2013 in the total sum of $153,573.39. 719.Lastly, the plaintiff claims for loss of 5% guaranteed dividend on the provident fund. In the scenario where the cut-off date is 15 October 2013, the plaintiff suggests that the amount of her loss under this head would be $112.86. The IMC has not argued otherwise. I would have awarded the plaintiff this sum under scenario 1. 720.If the plaintiff’s summary dismissal was not justified, then the IMC could not terminate the principalship of the plaintiff without following the procedures stipulated under Appendix 8[105] of the Code of Aid. The said Appendix 8 provides that:
721.Section 57(c) of the Code of Aid provides that:
722.I do not think the court should assume that the plaintiff would not show any improvement after 27 July 2013 despite the warnings which she had received. Further, the completion of the procedure under Appendix 8 of the Code of Aid would have taken time. Hence, I am of the view that the appropriate approach for assessing the plaintiff’s loss in the event summary dismissal on 27 July 2013 was unjustified was to assume that she would stay on as the principal of the School until her scheduled retirement date (i.e. 31 August 2014). 723.In such circumstances, I would have awarded $789,183.87 and $4,066.64 to the plaintiff as her loss of income and loss of 5% guaranteed dividend on provident fund respectively. 724.However, I would dismiss her claim for loss of government donation to her provident fund as this claim was not properly pleaded. 725.In their written closing submissions, the IMC’s counsel argued the IMC’s counterclaim in the following way:
726.The IMC therefore asks that the plaintiff be held liable for damages to the IMC, or to indemnify the IMC, for the sum of $1,067,801.50 and/or $382,599.97. The IMC no longer asks for any declarations as pleaded in the Re-Re-Amended Defence and Counterclaim. I1. The claim for deficit of $1,067,801.50 727.According to paragraph 205 of Mr Chu’s witness statement, the sum of $1,067,801.50 was the amount of deficit in the School’s General Funds Account by the end of the financial year 2013/2014. It was alleged by the IMC that because of the plaintiff’s misconduct, the School’s General Funds Account had been turned into a deficit in respect of which the School had been required by EDB to cover by using its own funding from the Foundation. The plaintiff should therefore be liable to indemnify the IMC for the same. 728.Before I further discuss this claim, it is necessary to refer to the authority of Bank of New Zealand v New Zealand Guardian Trust Co Ltd [1999] 1 NZLR 664 which the IMC’s counsel had relied on. It was held by Tipping J therein that:
729.The Bank of New Zealand case was cited by our Court of Final Appeal with approval in the case of Libertarian Investments Ltd v Hall [2013] 16 HKCFAR 681. 730.In my view, the present case is clearly the third kind of case as described by Topping J. She had, as found in the earlier parts of this Judgment, failed to seek the IMC’s or EDB’s approval (as the case may be) before she undertook certain actions, and had failed to comply with the relevant procurement guidelines in some other cases. These only amount to failure to exercise appropriate skill. This is not a case in which the plaintiff had committed breaches leading directly to damage or loss of trust property. Neither could it be said that there was any conflict of interest on her part. 731.That being so, as conceded by the IMC’s counsel (see paragraph 413.3 of their written closing submissions as quoted above), the IMC simply cannot satisfy the common law test of foreseeability and remoteness in respect of the alleged losses. 732.As a matter of fact, as can be seen from the figures pleaded in the Re-Re-Amended Defence and Counterclaim, the School’s General Funds Account had been in deficit since the financial year ended 31 August 2008. At that time, there was no allegation of misconduct made against the plaintiff. This shows that a deficit balance does not necessarily relate to any misconduct. 733.I therefore conclude that this claim is clearly unsustainable and must be rejected. 734.It can be seen from paragraphs 412.1 to 412.6 of the IMC’s written closing submissions quoted above that the sum of $382,599.97 was made up of expenses incurred for:
735.As pointed out by the plaintiff’s counsel, the amounts claimed are special damages which should have been specifically pleaded by the IMC in its pleadings, which it did not do. On this ground alone, this claim should be rejected. 736.In any event, since I have rejected the IMC’s case on each of the above 5 matters[107], the IMC’s claim must fail. 737.By reasons of the aforesaid, I dismiss the plaintiff’s claim and the IMC’s counterclaim. 738.I make a costs order nisi that the plaintiff shall bear 70% of the IMC’s costs of the action (including all costs reserved), with certificate for two counsel, to be taxed if not agreed. 739.When I reached the above preliminary view on costs order, I have taken the following matters into account:
740.If any party wishes to vary the costs order nisi:
741.The above order nisi shall become absolute in the absence of application to vary within the first 14-day period mentioned above.
Ms Debora Poon, Ms Bonnie Tam and Ms Yvonne Leung, instructed by Ho, Tse, Wai & Partners, for the plaintiff Mr Laurence Li, SC and Mr Harrison Miao, instructed by Zhong Lun Law Firm LLP, for the defendant [1] The background is largely adopted from the summary contained in the defendant’s written closing submissions. [2] The plaintiff confirmed in her written closing submissions that she would no longer rely on Appendices 7 and 8 of the Code of Aid in her claim of breach of contract. There is a confusion on the numbering of the Appendices of the Code of Aid – see footnote 105 below. [3] The plaintiff confirmed in the course of the trial that she would not pursue her claim under common law duty of care in this action. [4] The figures are adopted from the plaintiff’s written closing submissions because the plaintiff’s counsel admitted that the quantum had been overstated inadvertently in the Re-Re-Amended Statement of Claim. [5] Yeung Chee-kiu v Lam Chee[1966] HKDCLR 65, at 69; Boston Deep Sea Fishing and Ice Co v Ansell(1888) 39 Ch D 339, at 356-357 [6] Lee Hung Chiu Philip v Becton Dickinson Asia Ltd (HCA 2830/2000, unreported, 26 March 2009), at paragraph 11 – 12 [7] At paragraph 9(2)(b) of the Re-Re-Amended Reply and Defence to Counterclaim [8] Paragraph 48 of the plaintiff’s written reply submissions [9] Page 11 of the minutes of the IMC meeting held on 25 May 2013 at page 450 of trial bundle B [10] Transcripts of the meeting at page 3054 of trial bundle B [11] See, for example, paragraph 145.3 of the IMC’s written closing submissions [12] The warning reads: “校長沒有依照教育局通告第15/2007 號－「資助學校招標及採購程序」(詳情可參閱教育局網頁)及沒有依照本會規定超過5,000元或以上必須最少有3 份報價並提交會議通過(附件4) 。” (emphasis added) [13] Paragraph 49 of the EDB’s Procurement Guidelines [14] The plaintiff corrected during his examination in chief that there was a typing mistake here and she was minded to refer to “朱校監” [15] Page 636 of trial bundle B [16] Page 2933 of trial bundle B [17] I will discuss further on whether the IMC did tell the plaintiff clearly on 20 August 2012 that she should not proceed further with cross-border recruitment. [18] Mr Law Siu Kit, a manager of the IMC [19] Page 66 of the transcripts at page 2965 of trial bundle B [20] One of the managers of the School [21] At page 1245 of trial bundle B [22] Paragraph 80 of Mr Chu’s witness statement [23] Pages 1295 – 1296 of trial bundle B [24] See Memorandum of the meeting held on 3 September 2012 at page 387 of trial bundle B [25] Paragraph 6 of the IMC’s written closing submissions [26] Paragraph 10 of Ms Iu’s witness statement [27] See transcripts of the meeting on 14 September 2012 at page 1295 of trial bundle B [28] At 44:00 in the meeting on 14 September 2012 (at page 1295 of trial bundle B) [29] Page 1529 of trial bundle B [30] Mr Li SC and Mr Miao have referred to paragraph 14(8) of the Re-Re-Amended Defence and Counterclaim as well under Warning 4. However, the allegations therein have already been dealt with under Warning 3 [31] Paragraph 55.3 of the IMC’s “Responses to P’s Closing” [32] Article 23.1 of the Articles of Association of the IMC [33] The figures of entries in different months may be different, but the Chinese descriptions were the same [34] Mr Lee Tung Sing, a manager of the School [35] 04:12:37 – 04:19:34 of the audio recording [36] 04:16:58 – 04:17:02 of the audio recording [37] 04:17:41 – 04:17:46 of the audio recording [38] 04:17:46 – 04:18:32 of the audio recording [39] 04:18:52 – 04:19:02 of the audio recording [40] 04:19:18 – 04:19:34 of the audio recording [41] The first time when this was brought up for discussion was on 14 September 2012, but Mr Chu was not there on that occasion as he was hospitalized at the time [42] Paragraph 63 of the IMC’s “Responses to P’s Closing” [43] Paragraph 258 of the plaintiff’s written closing submissions [44] BEA Account. [45] Paragraph 9(17) of the Re-Re-Amended Reply and Defence to Counterclaim [46] Page 1398 of trial bundle B. See also paragraph 30 of the plaintiff’s supplemental witness statement [47] Page 27 of the transcript, at page 2974 of trial bundle B [48] Page 2784 of trial bundle B [49] Pages 1433 – 1434 of trial bundle B [50] Page 1411 of trial bundle B [51] Mr Yung Kang Lim, a participant of the Board of Directors meeting [52] Chairman Chu [53] Page 28 of the transcripts of the meeting at page 2975 of trial bundle B [54] Also known as “supply teachers” [55] Section 31(a) of the Code of Aid provides that: “The School Head may, on behalf of the School Management Committee, employ supply teachers on a daily basis to substitute for teachers who are absent on approved leave for three consecutive calendar days or more and claim reimbursement of salaries.[…]” [56] According to the record of the meeting prepared by Ms Iu (see paragraph 29 of her witness statement) [57] Paragraph 14 of the Re-Re-Amended Defence and Counterclaim [58] Page 22 of the transcripts at page 2942 of trial bundle B [59] Page 32 of the transcripts at page 3008 of trial bundle B [60] Pages 57 – 58 of the transcripts (page 2960 of trial bundle B) [61] Page 58 of the transcripts (page 2960 of trial bundle B) [62] See the end of Section E6 [63] This is a form of the EDB with the heading “資助小學學校聘任教學人員” which, according to the plaintiff’s case, was signed by Mr Chu on 1 August 2012 [64] Transcripts of a meeting held on 24 September 2012 in which Mr Lee, Mr Mak, Mr Ho and the plaintiff were present [65] The plaintiff also stated that 4 other employment contracts were signed in July and August 2012 [66] Paragraph 22(a) of the plaintiff’s supplemental witness statement [67] Article 24.1 of the Articles of Association of the IMC at page 1196 of trial bundle B [68] Paragraph 6 of the IMC’s written closing submissions [69] Page 25 of the transcripts at page 2943 of trial bundle B [70] See paragraph 22(a) of the plaintiff’s supplemental witness statement [71] Page 11 of the transcripts at page 2921 of trial bundle B [72] Paragraph 412.6 of the IMC’s written closing submissions reads: “As a result of P’s failure to seek the IMC’s proper approval before employing Chan, the School was required to pay Chan $50,251.11 (i.e., 3 sums of $9,100.98, $1,516.83 and $39,633.30) for his salaries.” [73] Paragraph 117(a) [74] It is unclear whether this was a typo and whether she meant “December 2009”. However, this would not affect the analysis herein. [75] Under cross-examination, when the plaintiff was referred to the various documents issued by 永生工程 (at pages 813 – 816 of trial bundle B), she denied that they were quotations but invoices. This court therefore treats similar documents as invoices. [76] Although this invoice only referred to “Male Toilet”, it can be inferred that it must be referring to the one on G/F, because the works at other male toilets had not been started yet at the time [77] Page 807 of trial bundle B [78] Although this invoice only referred to “Male Toilet”, it can be inferred that it must be referring to the one on G/F, because the works at other male toilets had not been started yet at the time [79] Page 808 of trial bundle B [80] Page 806 of trial bundle B [81] Page 809 of trial bundle B [82] Paragraph 45 of the EDB’s Procurement Guidelines [83] Paragraph 117(e) of the plaintiff’s witness statement [84] Paragraph 117(d) of the plaintiff’s witness statement [85] While 希伯崙堂 instead of 希伯倫堂 was used in this part of the P’s witness statement, there is no evidence that the plaintiff was referring to a different church here. [86] Pages 820 – 824 of trial bundle B [87] Pages 813 – 816 of trial bundle B [88] The plaintiff had gone on to explain what happened as far as quotations were concerned from February 2013 onwards in the latter part of her witness statement. However, those paragraphs are irrelevant to the conclusion to be reached below [89] Page 736 of trial bundle B [90] Paragraph 14(13) of the Re-Re-Amended Defence and Counterclaim [91] Paragraph 140 [92] Transcripts pages 3073 – 3078 of trial bundle B [93] Transcripts pages 3093 – 3096 of trial bundle B [94] Release 1.7, September 2011 [95] 2012/2013 [96] At pages 26 – 32 of the transcripts (pages 3089 – 3092 of trial bundle B) [97] The only email dated 27 June 2013 which was placed before the court is an email about questionnaire on “overtime work” – see section E14 of this Judgment [98] Pages 623-624 of trial bundle B. This email was forwarded to another email account on 5 November 2010. [99] At pages 38 – 39 of the transcripts (pages 3095 – 3096 of trial bundle B) [100] [2020] HKLRD 717 [101] [2013] 5 HKLRD 264 [102] The then section 46 of the Education Ordinance provided that:
[103] The provisions relied on are identical to section 56(1)(a), 56(1)(c) and 56(1)(d) of the current Education Ordinance, save that the words “management committee” under the old section 56(d) have been replaced by “managers of the school” in the new section 56(1)(d) [104] Paragraph 211 of the plaintiff’s written reply submissions [105] Although the Code of Aid included in the trial bundle and the Code of Aid on the EDB webpage are both stated to be the “September 1994 Version”, the appendix with the title “Procedure to be followed in case of Dismissal or Termination of Appointment of a Teacher” appeared as “Appendix 8” in the Code of Aid in the trial bundle but as “Appendix 7” in the Code of Aid found on the EDB webpage. Be that as it may, the contents of the said appendix are the same. The appendix numbering used in the version in the trial bundle will be adopted in this Judgment. [106] At 687 (line 17) – 688 (line 24) [107] See sections E3, E4.3, E7 and E10 of this Judgment | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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