B.P., Suing By His Father and Next Friend, Dr. Poon v. Graham Silverthorne and Another

HCPI 660/2017

[2022] HKCFI 1252

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 660 OF 2017

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Before:  Hon Wilson Chan J in Court

Dates of Hearing:  11-14, 17-20 January; 7-10 February and 21 March 2022

Date of Judgment:  28 April 2022

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J U D G M E N T

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A.    INTRODUCTION

1.The plaintiff, BP, is a former pupil of South Island School in Hong Kong (the “School”).  The 2^nd defendant is the foundation which runs the School and the 1^st defendant was the headmaster of the School at all material times.

2.As pointed out by the plaintiff in paragraph 2 of his Opening Submissions, in this action the plaintiff claims damages for continuing psychiatric injury suffered by him as a result of two incidents of bullying at the School.

3.The first incident was on 28 February 2014.  It involved the plaintiff being photographed without his knowledge in a school changing room by a boy who had allegedly been bullying him for some time previously.

4.The second incident was on 7 May 2014.  It involved the same perpetrator as the first incident, who on this occasion attempted to kick the plaintiff outside a classroom.

5.By way of procedural background, the present case has a chequered history:

(1)  The various alleged incidents occurred more than 9 years before the trial, starting from some time in 2012/13 in a well-known school consisting of more than 1,400 students;

(2)  The plaintiff commenced proceedings on 22 June 2017;

(3)  By the Order dated 12 December 2018, instead of splitting the trial into the usual trial of liability followed by quantum in any personal injury case, Bharwaney J split the trial into:

(a)  The 1^st trial on (i) Duty of care; (ii) Breach of duty; followed by

(b)  The 2^nd trial on (iii) Causation in liability; (iv) Quantum.

(4)  In other words, the conclusion of and the decision on this 1^st trial will not determine the issue of liability unless the plaintiff succeeds on the issue of causation in the 2^nd trial.  Be that as it may, the 1^st trial was originally fixed to commence on 2 March 2020 followed by a refix to 1 June 2020.  Thereafter, it was finally refixed before this court commencing on 11 January 2022.

B.    BACKGROUND

6.The plaintiff was born on 14 June 2000.  He is now aged 21.  From September 2005 to July 2011, the plaintiff received primary education at the Quarry Bay School, which was also one of the schools owned and managed by the English Schools Foundation.  Since March 2005 the plaintiff had speech therapy privately and from March 2006 the plaintiff undertook weekly speech therapy at school.

7.At the time of commencing primary education at Quarry Bay School, the plaintiff was assessed as a student with Special Education Needs (“SEN”).  Students with SEN were placed under Levels of Adjustment ranging from 1 to 6.  According to the Individual Needs (SEN) Policy adopted by the 2^nd defendant in June 2009, students with Level of Adjustment 1 and 2 are described as follows:

(1)  Level of Adjustment 1 concerned students who make little progress due to underachievement, behaviour, sensory/physical or communication/interaction difficulties;

(2)  Level of Adjustment 2 concerned students who were unable to make appropriate progress, and this involved experts advising on Student Support Plan (“SSP”) targets, specialist assessment, advice on new strategies, additional support.

8.From August 2011, the plaintiff commenced his secondary education in Year 7 at South Island School until he withdrew therefrom after completing Year 9 in August 2014.  The Level of Adjustment for the plaintiff throughout his primary education in Quarry Bay School and secondary education in South Island School was as follows:

(1)  In Year 5 at Quarry Bay School when the plaintiff was 9 years old, he was assessed at Level of Adjustment 2 as recorded in the “Referral to Psychologist” form;

(2)  After completing Year 6 and during the transfer to secondary education at South Island School, he was assessed at Level of Adjustment 1 as recorded in the Primary/Secondary Transfer Form;

(3)  During the course of Year 7 at South Island School in May 2012, his Level of Adjustment was reviewed and remained at Level 1 as recorded in his Gateway, which was the pathway to information and communication between all staff of the 2^nd defendant, students and parents.

B1.    The defendants

9.The 2^nd defendant is a co-educational, non-academically selective, English language medium, international school in Hong Kong, with approximately 1,400 students between the ages of 10 to 19 on roll (Years 7 to 13) during the material time.  It is one of the 5 secondary schools under the English School Foundation umbrella.

10.The student population is divided into the following Families:

(1)  Bauhinia for students in Years 7 to 8 consisting of approximately 400 students;

(2)  Bamboo for students in Years 9 to 13 consisting of approximately 500 students subdivided into the following Houses: (a) Kuca; (b) Maison; and (c) Namas;

(3)  Banyan also for students in Years 9 to 13 consisting of approximately 500 students subdivided into the following Houses: (a) Casa; (b) Bahay; and (c) Shtepi.

11.The plaintiff studied at the South Island School during the following term dates for each academic year:

(1)  Year 7: August 2011 to June 2012;

(2)  Year 8: 21 August 2012 to 28 June 2013;

(3)  Year 9: 19 August 2013 to 27 June 2014.

12.By the Student Withdrawal Notice dated 21 August 2014, the plaintiff withdrew from South Island School.  At the time of the alleged incidents in Year 7 (2011/12) to 8 (2012/13), the plaintiff belonged to the Bauhinia Family managed by the following personnel:

(1)  Ms Carolyn Andrews as the Director of the Bauhinia Family (and also the Vice Principal of the School);

(2)  Ms Clare Anderson and Ms Victoria Butcher as Joint Heads of the Family.

13.At the time of the alleged incidents in Year 9 (2013/14), the plaintiff belonged to the Bamboo Family managed by the following personnel:

(1)  Ms Annette Chapman as the Director of the Bamboo Family;

(2)  Ms Fran Couch as the Head of the Namas House.

14.The plaintiff also belonged to the tutor group under the following personnel:

(1)  Ms Helen Philp from year 7 to the first term of year 9;

(2)  Ms Laura McKenzie from first term of year 9.

15.At all material times, the 1^st defendant was the Principal of the 2^nd defendant, who was described by the Council of International Schools (“CIS”) as “an outstanding Principal” in the following terms:

“This report contains many recommendations which refer to the exceptional practices of the school. The success of the school has been achieved through visionary leadership provided by an outstanding Principal.”

B2.    Plaintiff’s case based on hearsay

16.According to the Re-Re-Amended Statement of Claim dated 11 October 2021, the plaintiff relies on the following incidents of alleged bullying by the same person:

(1)  In 2012/2013, a student named Andy Cho pulled the plaintiff’s pants as a result of which an oral complaint was made by the parents of the plaintiff to the teachers of the 2^nd defendant (“Pants-Pulling Incident”);

(2)  In June 2013 (Year 8), Andy Cho pulled away the plaintiff’s chair while the plaintiff was sitting down in class (“Chair-Pulling Incident”);

(3)  In January 2014 (Year 9), two students tried to pick up the plaintiff at the waist during the Design Technology Class.  The plaintiff purportedly informed his father Dr Poon that Andy Cho was apparently behind this incident (“DT Incident”);

(4)  On 28 February 2014 (Year 9), Andy Cho took photographs of the plaintiff while he was changing and naked in the male changing room, after a Physical Education (“PE”) lesson.  These photographs were then shown to at least 3 other fellow students (“Photo-Taking Incident”);

(5)  On 7 May 2014 (Year 9), Andy Cho tried to kick the plaintiff at his hip outside the Food Technology classroom (“Attempted-Kicking Incident”).

17.Despite pleading all of the above incidents, the plaintiff specifically pleaded that only the Photo-Taking Incident on 28 February 2014 and the Attempted-Kicking Incident on 7 May 2014 were wholly caused by the alleged negligence of the defendants.

18.Furthermore, according to the Amended Statement of Damages dated 16 October 2017, the plaintiff repeatedly pleaded that only the Photo-Taking Incident and the Attempted-Kicking Incident were causative of all the heads of damages claimed thereunder:

“1. After the Photo-taking incident on 28 February 2014, the plaintiff was diagnosed by Dr Amy S M Fung, a clinical psychologist of Clinical Health Psychology Centre, to have suffered from Obsessive Compulsive Disorder with obsessive thoughts and compulsive rituals triggered by the Photo-taking Incident…

2.  The Attempted-kicking Incident on 7 May 2014 further aggravated the plaintiff’s distress and unstable psychological condition…”

19.In the premises, the court is tasked to examine the foreseeability and/or causation of these two specific incidents.

20.According to paragraph 15 of the plaintiff’s Opening Submissions dated 21 December 2021, “to avoid these risks [ie risks of deterioration of his conditions] the plaintiff will not be giving evidence personally.  Instead evidence will be given on his behalf by his father and next friend.”

C.    ISSUES AT TRIAL

21.As submitted by the plaintiff in paragraph 23 of his Closing Submissions, whether the defendants breached their duty of care to the plaintiff depends on two crucial issues: (a) whether BP was bullied at South Island School from 2011 to 2014 culminating in the Photo-Taking Incident and the Attempted-Kicking Incident; and (b) whether reasonable steps were taken to protect BP from bullying, bearing in mind that BP was a vulnerable child with SEN having social and communication skills deficits assessed at Level of Adjustment 1.  The findings of fact on these issues necessarily depend on the adoption of a correct definition of bullying.

22.By way of an overview, the principal contentions of the defendants are:

(1)  The court should exclude or give no weight to all hearsay evidence, the court further is invited to draw adverse inference for the plaintiff’s deliberate choice of not giving evidence;

(2)  In view of the lack of relevance of the alleged incidents before the Photo-Taking Incident and the complete absence of proof of the Attempted-Kicking Incident, the Photo-Taking Incident was an unforeseeable isolated incident.  The plaintiff has simply failed to establish that he was bullied as properly defined;

(3)  The Anti-Bullying system of the School at the material time has complied with the principles and/or guidelines issued by the Education Bureau (“EDB”), which represent the reasonable standard expected of schools in Hong Kong and the defendants were not in breach of any duty of care owed to the plaintiff.

D.    HEARSAY EVIDENCE

23.The plaintiff’s case in establishing the facts of all the alleged incidents is premised on the hearsay evidence given by his Next Friend.

24.The defendants strenuously challenge the evidence of the Next Friend in the following ways, insofar as any of it relates to details surrounding the occurrence and/or circumstances of each alleged incident:

(1)  Admissibility of hearsay evidence under section 47(1)(a) of the Evidence Ordinance, Cap 8 (“EO”), especially the Witness Statement of BP dated 25 May 2017;

(2)  Weight of the hearsay evidence under section 49 of the EO, especially any oral evidence which is inconsistent with the contemporaneous documents;

(3)  Invitation to the court to draw adverse inferences against the plaintiff’s case for his failure to give evidence in the absence of any proper explanation.

25.Section 47 of the EO governs the admissibility of hearsay evidence:

“(1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay unless-

(a) a party against whom the evidence is to be adduced objects to the admission of the evidence; and

(b)the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice.” (Emphasis supplied).

26.Hearsay evidence is only excluded if, among other things, the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice.  Section 49 of the EO sets out the factors to be considered in the deliberating process (see: Ever-Long Securities Co Ltd v Wong Sio Po [2004] 2 HKLRD 143 (CA), §46).

27.Section 49 of the EO provides for the considerations relevant to the evaluation of hearsay evidence:

“(1) In estimating the weight, if any, to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) For the purposes of subsection (1), regard may be had, in particular, to the following-

(a)whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b)whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c)whether the evidence involves multiple hearsay;

(d)whether any person involved had any motive to conceal or misrepresent matters;

(e)whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight;

(g)whether or not the evidence adduced by the party is consistent with any evidence previously adduced by the party.” (Emphasis supplied)

28.Section 49 of the EO is framed in mandatory terms, ie “the court shall have regard…” to, inter alia, the circumstances set out in sub-section (2) if any inference can reasonably be drawn from them as to the reliability or otherwise of the evidence (Aqua-Leisure Industries Inc v Aqua Splash Ltd [2003] 1 HKLRD 142 (CA), §33). Part of the assessment under section 49 of the EO naturally includes the mental conditions of the plaintiff.

29.The plaintiff appears to be relying on the 8^th medical report of Dr Kathy Chan dated 30 May 2018 to justify his absence in court as he “is a mentally incapacitated person as defined under the Mental Health Ordinance.  He is unfit to manage court proceedings. He is not fit to give instructions.”  Along the same vein, the plaintiff applied to be represented by his father Dr Poon under Order 80 of the Rules of the High Court, Cap 4A (“RHC”), which was granted by Master Roy Yu on 26 June 2018.

30.Quite apart from the fact that the plaintiff obtained the representation order barely 12 days after he became an adult on 14 June 2018, I agree there is a world of difference between a representation order obtained under Order 80 RHC and Part II of the Mental Health Ordinance, Cap 136 (“MHO”).  As submitted by the defendants, the court is entitled to examine and question the underlying basis behind the application.

D1.    Person under disability (Order 80 of the RHC)

31.Order 80, rule 2 of the RHC provides that any person under disability must sue by a next friend or guardian ad litem.

32.It is well established on the authorities that there is no need for a judicial inquiry before the appointment of a protective guardian ad litem.  A person under disability is entitled to appear by his guardian ad litem if specific documents have been filed in court.  A summons seeking an order for the appointment is not needed.  The requirement that the person is incapable of managing and administering his property and affairs, under Order 80, rule 1 RHC, does not require an inquiry by the court, provided that the solicitor instructed by the proposed guardian certifies that he or she knew or believed the person to be so incapable.  Upon filing such documents in the registry, under Order 80, rule 3(6)(c) RHC, the proposed guardian would be entitled to appear as the person’s guardian ad litem without any application to the court (see: Moral Luck Finance Ltd v Law Kin Leung (2015) 18 HKCFAR 343, §§18-20).

33.Significantly, under Order 80 RHC, for the purposes of the appointment of a guardian ad litem, the test of mental incapacity is “issue-specific”.  The test to be applied is “whether the party to legal proceedings was capable of understanding, with the assistance of such proper explanation from legal advisers, the issues on which his consent or decision was likely to be necessary in the course of the proceedings” (emphasis supplied).  The focus of the inquiry is on the litigation under consideration rather than the whole of that person’s property and affairs.  Complete incapacity is not required to be established (see: Ng Hong Ki v Leung Fong Kiu [2012] 1 HKLRD 435 (CA), §34). Order 80 RHC by its terms does not deal with the capacity of a person under disability to be a witness.

D2.    Medical conditions of the plaintiff

34.The reliance by the plaintiff on the case of Cox v State of New South Wales [2007] NSWSC 471 is unhelpful and misplaced.  That case is clearly distinguishable from the present case:

(1)  Although the plaintiff there suffered from psychiatric conditions identified as Depression and Anxiety Disorder, Separation Anxiety Disorder, and Post-Traumatic Stress Disorder, he was nevertheless called as a witness and when asked about the events the subject of the claim, he responded that he had no recollection;

(2)  On the basis of his evidence in court, the court considered that he was not capable of giving a rational reply to questions about facts going to the proof of physical assaults as a child.  It was held that the plaintiff was relevantly “unavailable” to give evidence under Part 2 clause 4 of the Dictionary to the Evidence Act 1995;

(3)  The plaintiff’s mother came into the category of a person who saw, heard or otherwise perceived the representations being made, with the result that her evidence was therefore admissible.  She was able to relate what the plaintiff told her in sufficient details and/or particulars including:

(a)  “18....He told me that there had been a boy pinching things off him, schoolbooks, pencils, and he was shoving him into the walls at school, and he was scaring him.”;

(b)  “32....that [TH] was scaring him, pushing him into the walls of the school as he walked past him, jumping out from behind buildings, including the school toilets, and scaring him so much that he couldn’t even use the toilets at the time”;

(c)  “38....He lifted his shirt and lowered his pants and she saw red welts across the back of his body.  He told her that this had been done by TH.  He also said that TH threatened that if he reported the matter to a teacher, he would be hurt again”;

(d)  “40....she went to the school to find the plaintiff in the office, crying, his mouth bleeding.  A lower tooth was missing and his lip was swollen and cut and bleeding.  Mrs Cox said that, when asked what had happened, the plaintiff told her: ‘…[TH] had tried to shove his jumper down his throat - like into his mouth’”;

(e)  “42....when the plaintiff had returned to school, TH accosted him, saying: ‘It was funny how the police came to my house.  And if they come again, I’ll threaten to kill you’”.

35.Most importantly, Simpson J accepted the evidence of the plaintiff’s mother as the defendant did not seriously dispute the occurrence of the incidents:

“67. Despite the sustained attack upon Mrs Cox’s credibility and reliability, no submission was made that I should not accept that the plaintiff had been the subject of conduct and assaults of the type of which she gave evidence. It is of some significance that no witness was called on behalf of the defendant relevant either to the question of whether the conduct had occurred, or, perhaps more importantly, as to the reports Mrs Cox maintained she had made to the school.”

36.Whereas in the present case, the defendants strenuously deny inter alia the Attempted-Kicking Incident allegedly occurred on 7 May 2014 (Year 9).  More importantly, in the case of Cox, the plaintiff offered himself to the court and the defendant to examine him before the court allowed the admission of hearsay evidence.  In contrast in the present case, the plaintiff made no attempt to undergo examination by the court but instead dictated the approach of these proceedings by relying on medical evidence, which the Court of Appeal in Hong Kong had warned against.

37.In Law Yin Pok Bosco v Dr Chan Yee Shing [2012] HKCA 644, the appellant plaintiffs sought leave to appeal against the refusal of the trial judge to adjourn the trial as they were apparently in a situation of crisis and were suffering severe emotional turmoil such that they were in no fit state to prepare for or attend at the trial.  The psychiatrist opined that both the mother and father were reacting to an acute stress, each with a diagnosis of an adjustment disorder, with a mixed anxiety and depressive reaction for which antidepressants had been prescribed.

38.She was of the view that if the court hearing was to proceed as scheduled, the stress of pre-trial preparations and the pressure associated with the court hearing would be detrimental to their mental health, leading possibly in the case of the mother to the development of a depressive episode which might require longer term treatment with an antidepressant.  She therefore supported a deferment of the court hearing for at least three months.

39.In dismissing the appeal, Fok JA (as he then was) warned that litigation proceedings should not be dictated by the parties and/or their medical witnesses:

“15. First, it would be all too easy for plaintiffs in general to dictate the pace of personal injury litigation simply by claiming mental anxiety over the proceedings and so the court must look critically at the evidence adduced in support of an application to vacate the trial dates on this ground...Judges hearing trials of personal injury actions are well used to dealing with parties and witnesses under disabilities, whether physical or mental, and to making appropriate allowances for those disabilities. It is also not uncommon for parties or witnesses to give evidence whilst on medication and, again, this is a matter which the trial judge can take into account and for which he can make such allowance as may be necessary and appropriate.

…

19. Against this background and bearing in mind what we have said above, we would make the observation that it would in future be more helpful if medical experts were made aware of the court’s concerns about varying a milestone date and, when preparing reports in support of an application for an adjournment, the relevant experts should be asked to consider what ameliorative measures could be put in place if the party or witness were to have to give evidence and to explain, if this were the case, why such ameliorative measures might not be sufficient to address the perceived difficulties. This would assist the court in making an assessment on an informed basis as to whether an adjournment was warranted at that particular stage. An unexplained recommendation for an adjournment, even if accompanied by a diagnosis of the condition of the patient and the proposed course of treatment, does not serve the same purpose. Needless to say, such experts must also be prepared to come to court to give evidence to support his or her opinion if necessary, although as we observe below, it is not intended that applications of this nature become mini-trials in themselves.

…

22.…However, as we have already noted, it is important that trial judges retain a full discretion to case-manage litigation before them. The decision as to whether a trial should proceed due to the delicate state of a party’s or witness’ state of mind is one for the trial judge and not solely for a medical expert. If this were not the case, there would be a real danger of the pace of litigation being dictated by a party and his medical witnesses and this would be contrary to the spirit of the Civil Justice Reform and its underlying objectives. Furthermore, it is not right that an adjournment application should be expanded into a full-blown mini-trial at which the parties’ medical experts are required to testify and be cross-examined on the likely effect of a trial on a plaintiff…” (Emphasis supplied)

40.With the above caution and guidance in mind, it is important to examine all 8 medical reports produced by Dr Kathy Chan.  Out of the 8 reports, only from the 5^th report dated 16 October 2017 to the 8^th report dated 30 May 2018 does Dr Kathy Chan comment on the plaintiff’s ability to handle legal proceedings.

41.According to the 5^th report dated 16 October 2017, Dr Kathy Chan stated:

“3. In this connection, it is likely that [BP] will suffer from a significant worsening of his mental condition and a relapse of his symptoms if he has to withstand the stress of legal proceedings.” (Emphasis supplied)

42.According to the 6^th report dated 26 January 2018, Dr Kathy Chan gave details in relation to the plaintiff’s Activities of Daily Living (ADL):

“2.…For example, he remained motionless for 3 hours when he ruminated on his thoughts.  He had to stop at certain “spots” at home and refused to move.  He had to count a certain duration before he would put on his clothes or spectacles.  As a result, it took him more than 2 hours to put on his clothes.  It took him one hour to get off a car.  He was very slow in response and movement.  He also had sudden outbursts of yelling and crying.  His symptoms severely incapacitated his activities of daily living.  He hardly ate anything when I first saw him.  His activities of daily living, such as taking meals and showers, were dependent on his father.

3.…He avoided reminders of the incidents eg refused to leave his home when he was back in Hong Kong for fear of coming across people from his old school.

…

6.  Although [BP]’s symptoms have shown improvement, some of his self care is still dependent on his father.  As an example, [BP] still needs his father’s assistance in taking shower.  In addition, his school has to give him a lot of allowance on homework and examinations because of his slowness.

7.…Last year, his mental condition fluctuated when he learnt of the progress of the legal proceedings.  It is envisaged that he will not be able to manage the legal proceedings on his own and that his condition is very likely to deteriorate should the burden be thrust upon him.

…

9.  Given his treatment history, and that [BP] was very sensitive to reminders of the traumatic incident it is very likely that [BP] will suffer from a serious worsening of his mental condition and a relapse of his symptoms if he has to withstand the stress of Joint Medical Examination, and direct involvement of the legal proceedings.  Hence, it will be in his best interest for his father to continue to act on behalf of him to handle the conduct of these proceedings. (Emphasis supplied)

43.According to the 7^th report dated 9 April 2018, Dr Kathy Chan wrote that the stress of the trial will cause the plaintiff’s conditions to deteriorate such that he will not be able to manage and administer his own affairs, which purports to echo the definition of “mentally incapacitated person” under the MHO:

“2.…[BP]’s mental condition is very volatile and extremely sensitive to stress. It is highly likely that his mental condition will deteriorate if he has to withstand the stress of going through a trial, which will render him not being able to manage and administer his own affairs…”

44.Pausing here, even in the 7^th report dated 9 April 2018, Dr Kathy Chan never unequivocally confirmed that the plaintiff was incapable to manage his own affairs so as to tantamount to being a mentally incapacitated person.  Her opinion had always been a qualified opinion on the premise that the plaintiff would be unable to withstand the stress of the trial, which is similar to that given in Law Yin Pok Bosco(Ibid) and firmly rejected by the Court of Appeal.

45.However, just over one month thereafter, Dr Kathy Chan confirmed in her 8^th report dated 30 May 2018 that “[BP] is a mentally incapacitated person as defined under the Mental Health Ordinance…not fit to give instructions”.

46.Against the above contents of the medical reports, the defendants correctly submitted that the court should critically examine the following circumstances surrounding each report:

(1)  The 5^th report of Dr Kathy Chan dated 16 October 2017 was produced at the request of the plaintiff and/or his father as opposed to any medical examination:

(a)  According to the progress note dated 6 September 2017, “Margaret Poon & Co Ms Ko called 想請 Dr Chan寫一份關於 [BP] 的Mental Health Ordinance application。另想Dr Chan有那另一位Dr可以能寫到法庭報告。”;

(b)  Translation: “Margaret Poon & Co Ms Ko called and invited Dr Chan to write one Mental Health Ordinance application in relation to [BP] and also hope Dr Chan can introduce another doctor who can write a court report” - In other words, the plaintiff was clearly intending to obtain the two requisite medical certificates for the purpose of a Part II MHO application;

(2)  According to the progress note dated 21 September 2017 the plaintiff’s father (F⁰) informed Dr Kathy Chan that:

(a)  “Ppt [ie Precipitating Factor]: 2. Told have to handle legal procedures by 18 years > unjust”;

(b)  “F⁰ concerned ↓M/S [ie Decreased Mental State] = legal proceed[ings] exp[ressed] whatever means to rep [ie represent] him”;

(3)  Despite his intention to obtain two medical certificates for Part II MHO, the plaintiff failed to obtain the same from any doctor.  At most, he was only able to obtain the 5^th report of Dr Kathy Chan dated 16 October 2017 stating the possibility of deterioration as a result of the stress arising from legal proceedings;

(4)  Even in the light of the 5^th report, the plaintiff confirmed by the Questionnaire for PI Action dated 27 November 2017 that he would be one of the two witnesses at trial.  However, at the same time, the solicitors for the plaintiff indicated that he would not take part in any joint psychiatric expert examination:

“In view of the plaintiff’s yet healed and vulnerable condition, we consider that it would not be suitable for the plaintiff to participate in any joint psychiatric/psychological examination at this stage.” (Emphasis supplied)

(5)  Unsurprisingly and notably, just less than one month after the filing of the above Questionnaire, the plaintiff issued a letter dated 21 December 2017 requesting the 6^th report dated 26 January 2018, in which Dr Kathy Chan opined that the plaintiff would not be able to handle the stress of the “Joint Medical Examination”;

(6)  In respect of the 6^th report dated 26 January 2018 setting out various problems in the plaintiff’s Activities of Daily Living (ADL), quite apart from the fact that the plaintiff had relocated to Canada since 2014/15, it is very telling that none of the problems identified in the report was ever recorded in such details in Dr Kathy Chan’s records:

(a)  The progress note dated 27 August 2014 recorded “ADL ~ 70%”.  Similarly, the progress note dated 13 March 2017 recorded “daily rituals not interfere in ADL”;

(b)  After the plaintiff’s father expressed “whatever means to rep[resent] him”, the progress note dated 21 September 2017 only recorded for the very first time “ADL incl[uding] bath dep[endent] since os [ie onset]”.

(7)  By the Summons dated 15 May 2018, the plaintiff applied for a split trial of the present proceedings supported by the Affidavit of his mother dated 10 May 2018, which exhibited the 6^th report and 7^th report (dated 9 April 2018) of Dr Kathy Chan.  In the absence of any supporting medical evidence, the plaintiff’s mother confirmed it is possible for the plaintiff to undergo expert examination on the condition that he succeeds in liability:

“7.…(b) The plaintiff has always been obsessed about having justice and if the issue of liability is resolved that would enable those having his care to chart a clear way forward. Hence if he succeeds it is likely that it will speed up his recovery and make the Joint Medical Examination possible.”

(8)  By the Affidavit of Chan Yui-Ming dated 7 August 2018, the plaintiff responded to the opposing affirmation of the defendants and exhibited the 8^th report of Dr Kathy Chan dated 30 May 2018 in order to re-enforce the submission that the plaintiff “should not be subjected to any Joint Medical Examination…”;

(9)  Extraordinarily, Dr Kathy Chan changed from her qualified opinion to a confirmatory opinion of “mentally incapacitated person” in the 8^th report when there was no consultation whatsoever recording any substantial change of mental conditions in just over one month between the 7^th report dated 9 April 2018 and 8^th report dated 30 May 2018, having regard to the fact that the next consultation did not take place until 25 June 2018;

(10)  As there was no consultation between the 7^th and 8^th reports, it is highly questionable whether Dr Kathy Chan could even begin to provide an opinion that the plaintiff had suddenly become a “mentally incapacitated person as defined under the Mental Health Ordinance”.  In any event, the plaintiff had clearly failed to obtain any medical certificate answering the requisite questions under Annex C of Practice Direction 30.1;

(11)  Relying on the 8^th report dated 30 May 2018 and in the absence of any representations and/or submissions by the defendants, the plaintiff applied for and the court granted the ex parte representation order under Order 80 RHC on 26 June 2018, which was only 12 days after he became an adult on 14 June 2018. This would appear to clearly be a tactical manoeuvre to avoid giving evidence in court;

(12)  However, one day before the ex parte representation order was granted, Dr Kathy Chan recorded in her progress note dated 25 June 2018 that the plaintiff was “Stable.  Grad[uated] from high school pending uni M[ood] 8/10 Got 2 awards for school.  Pleased↑confident psy⁰ …F⁰ felt him 80% bk to N[ormal]”.

47.In contradistinction to the plaintiff in Cox (Supra), the plaintiff in the present case has been described as “obsessed about having justice” without any complaint of memory loss.  Irrespective of the medical reports of Dr Kathy Chan, the court is“well used to dealing with parties and witnesses under disabilities” (Law Yin Pok Bosco (Supra) §15), especially when the plaintiff is receiving tertiary education at university (as opposed to the usual “mentally incapacitated person” in a “disaster” category case).  In the premises, common sense raises serious questions about whether the plaintiff is truly incapable of giving instructions for the conduct of these proceedings.  In any event, whether the plaintiff is able to give instructions is clearly separate from the issue of the capacity of a person under disability to be a witness.

48.In all the circumstances, the court would exclude any hearsay evidence adduced by Dr Poon including but not limited to the Witness Statement of the plaintiff dated 25 May 2017 and/or any representations allegedly made by the plaintiff to his father in relation to the occurrence and/or circumstances of each alleged incident.  In my view, the exclusion of this hearsay evidence is not prejudicial to the interests of justice, particularly in the absence of any opportunity of subjecting the plaintiff’s evidence to test.  If I am wrong in that conclusion, then for the foregoing reasons I am unable to place any weight at all on such hearsay evidence.

49.In the absence of any direct, relevant, reliable and credible evidence being adduced as to the exact circumstances of each alleged incident, the plaintiff’s claim should be dismissed on this ground alone.

E.     PLAINTIFF HAS FAILED TO ESTABLISH THAT HE WAS BULLIED

E1.    Definition of bullying

50.The plaintiff’s expert, Professor Chad Allen Rose stated in his examination-in-chief that he agrees with the following definition set out in the “Co-creating a Harmonious School guidelines” issued by the Hong Kong Education Bureau in 2004:

“Different academics have slightly different views over the definition of bullying, but most of them agree that it has three components in common, namely:

Repetition - bullying repeats over time. It is not a single incident.

Malicious intent - bullies oppress and hurt others deliberately.

Imbalance of power - bullies are apparently more powerful and bullying occurs when the victims are unable to defend themselves.

(Beane, 1999; DFES, 2002; Newman, Horne & Bartolomucci, 2000; Olweus, 1993)

A behaviour is defined as bullying only when it has these three components.  Overall speaking, bullying is a repeated and intended act of harm or oppression by a person or a group of persons who is more powerful or in the majority.”

51.In paragraph 1.2(b) of the Joint Expert Statement, Professor Rose states that he is of the view that it is the building up of a “pervasive behaviour pattern” that should trigger alarm bells for bullying.

52.The defendants’ expert, Ms Coosje Griffiths gives the following definition of bullying in her solo expert report:

“Although there is no universally accepted definition of bullying behaviour, most definitions agree that the behaviour is repeated, involves intent and a misuse of power, resulting in a negative impact on the targeted individual.”

53.She expanded on this in cross-examination, stating that:

“I believe that we were talking about repeated bullying by the same person, involving intent and misuse of power. So it’s a one-off event of misbehaviour, that is not bullying; and if there’s a different one-off event with another person, if it’s not connected, it’s not defined as bullying.”

54.Ms Griffiths later extended this definition further:

“Q. So if over a period of time, 4, 5, 6 different children mock the victim because of some personal characteristic, you’re saying that is not bullying?

A.  If it’s repeated and they are intending to harm that child or it’s malicious intent and a misuse of power and it has a negative impact, yes, it would be considered bullying.”

55.In her solo report Ms Griffiths incorporates a time frame for incidents to be considered bullying:

“Most research studies agree that bullying is repeated or persistent with the frequency by which this behaviour occurs for it to constitute bullying being every few weeks or more often. Problem behaviours between students that occur less frequently are not considered to constitute bullying.”

56.In the joint statement Ms Griffiths adds a controversial extra element to the definition of bullying.  She states that for action to be considered bullying it has to be “2-3 times a month or more”.

57.Ms Griffiths was presented with the definition of bullying in an article “Remedial and Special Education” which defines bullying as follows:

Citation	Definition
Dawkins (1996) p 603	Bullying is the intentional, unprovoked abuse of power by one or more children in order to inflict pain or cause distress to another child on repeated occasions.
Olweus (1993 p 9)	A student is being bullied or victimized when he or she is exposed, repeatedly and over time, to negative actions on the part of one or more other students.
Nansel et al (2001 p 2095)	A student is being bullied when another student, or a group of students, say or do nasty and unpleasant things to him or her.  It is also bullying when a student is teased repeatedly in a way he or she doesn’t like.  Any form of verbal or physical hurtful behavior, such as name-calling, punching, repeated teasing, kicking, hitting, spreading malicious rumors, pestering, socially isolating can be considered bullying if the peer persists with it after it is apparent that the victim is traumatized by what is being said or done.
O’ Moore and Hillery (1989 p 431)	Bullying is longstanding violence, mental or physical, conducted by an individual or a group and directed against an individual who is not able to defend himself/herself, in the actual situation.

58.In cross-examination Ms Griffiths accepted that there are differing definitions amongst researchers which make it hard for them to come up with studies which are compatible with each other.  However, she still insisted that: “as long as it is repeated - repeated within a time frame such as two or three times a month, yes.  So if it’s repeated under that definition.”

59.There was disagreement between the experts on the time frame and in cross-examination Professor Rose did not accept that “repeated” behaviour has to be within 30 days to be bullying.  He explained: “The truth is my perception of ‘repeated or likely to be repeated’ doesn’t have to be pigeonholed into a 30-day window.  …And so looking at this static window of time, so if it happened twice in 31 days, then it’s not considered bullying?  32 days?”

60.He went on to say that: “… both experts agreed that the school’s definition was in line with literature at the time.  I mean, that should be clear enough.  To pigeonhole everything in 30 days is not accurate to students’ actual experience.”

61.The School’s own Anti-Bullying policy states:

“…We define bullying as wilful and persistent behaviour which results in someone being physically or emotionally hurt, threatened or humiliated.

…All reported cases of bullying are taken seriously and dealt with in an appropriate manner. In certain circumstances, action taken against bullying will include suspension or expulsion in cases of serious or persistent bullying.

…Parents and students are asked to inform a member of staff as soon as they are aware of such behaviour, so that it can be dealt with at an early stage.”

62.When it was pointed out to Ms Griffiths in cross- examination that the School’s stated policy does not say “at least once a month” which she adopted to be the definition in the joint statement she retreated and the following exchange occurred:

“Q.  Yes.  But…indeed, it may well be in that context you’ve put in this reference to “at least once a month”, but that reference isn’t there in the school’s policy.

A.  So “persistent” is the part of the definition.

Q.  You are interpreting “persistent” to mean at least once a month, but it’s not written in the policy.  That’s right, isn’t it?

A.  That’s the commonly held term.”

63.As to how bullying is to be prevented Ms Griffiths fairly agrees that:

“Q. To have an effective system, you have to have a system that is going to stop the bullying starting, don’t you? It’s no good just to…

A.  Yes.  Yes, I would agree.”

64.From the totality of the material before the court, including the expert views expressed in cross-examination, the consensus is that:

(1)  bullying consists of 3 elements: repetition; intention to harm and imbalance of power;

(2)  there is no generally accepted rule as to how frequently incidents have to occur for them to constitute bullying.  Professor Rose added the description of “the building up of a pervasive behaviour pattern”.

E2.    The circumstances of the principal alleged incidents

65.Pants-Pulling Incident in 2012/13 (Year 8): It is clear that throughout the trial the plaintiff had struggled to adduce sufficient primary evidence as grounding for the court to draw the proper inference that Andy Cho committed the act:

(1)  It must be remembered that the first time the plaintiff recorded the allegation of pants-pulling against Andy Cho was in his handwritten note which was made on 4 March 2014 (Year 9) after the Photo-Taking Incident.  Similarly, the plaintiff’s parents only recorded the same allegation for the first time in the e-mail sent on 2 March 2014 at 22:58;

(2)  In the absence of any oral evidence given by the plaintiff, the purported contemporaneous records do not assist in showing Andy Cho committed the act or the act was committed in 2012/13 (Year 8):

(a)  The plaintiff’s note written on 4 March 2014 recorded “Pulling my pants - Middle of Term 2/3 Year 8”;

(b)  The beige folder of Andy Cho contained a document with a remark “9N1” (ie Year 9 Namas House) which recorded:“Things that I did bad during this year - Pulling someone’s pants down”;

(c)  By the plaintiff’s own e-mail sent on 5 February 2015: “GRADE 7 (Translated) - Nobody likes me Part 2 - Pulling down my pants”;

(3)  Out of desperation to try and establish the year in which the incident occurred, the plaintiff purported to have recourse to the reverse chronological order of the documents as presented in the beige folder of Andy Cho.  However, the attempt utterly failed as Ms Fran Crouch clarified under re-examination that the documents in the beige folders were not kept in any specific order;

(4)  Dr Poon alleged that he had made an oral complaint to Ms Clare Anderson and Ms Helen Philp at the material time.  The allegation is no more than a blatant afterthought on realisation that there is not a shred of documentary evidence showing that the plaintiff’s parents had made such complaint in 2012/2013 (Year 8), contrary to their usual practice of sending e-mails late at night;

(5)  As Ms Fran Crouch explained in her Witness Statement dated 26 June 2018, “young boys fooling around and tugging at each other’s clothes, or pants, is generally nothing of concern and rather common when running around in the school playground”.  When confronted with the document within the beige folder of Andy Cho, Ms Crouch fairly pointed out “Andy never names whose pants he pulled down” and “Andy might have tugged at other students' pants as well quite easily”;

(6)  Even assuming that Andy Cho did commit the Pants-Pulling Incident against the plaintiff, there is no evidence as to the exact circumstances of this incident.  In any event, the School would have been reasonably and justifiably entitled to regard the incident as “horseplay” rather than bullying.

66.Chair-Pulling Incident on 19 June 2013 (Year 8): Whilst the Chair-Pulling Incident might have occurred, there is no evidence whatsoever of the exact circumstances in order for the court to determine whether the incident constituted bullying or an accident or an isolated incident of inappropriate behaviour:

(1)  The starting point is that both experts agree that if the Chair-Pulling Incident was an isolated incident, the School’s response would have been appropriate.  Therefore, it is imperative for the plaintiff to adduce “precise” evidence of the circumstances in order for the court to determine whether the incident was an accident or an isolated or bullying incident within its proper definition;

(2)  In the absence of any oral evidence given by the plaintiff, the only purported contemporaneous records that show the circumstances of the Incident are:

(a)  By the email dated 19 June 2013, the plaintiff’s father informed Ms Helen Philp: “…During today’s Humanities class, before the “Cover teacher” arrived, Andy pulled away [BP]’s chair while [BP] was sitting down…”;

(b)  According to the Medical Record for the consultation on 20 June 2013, Dr Tony Lee Chun-Kit recorded: “Diagnosis left buttock due to accident…Complaint: sat on invisible chair yesterday…school mischief”;

(3)  Given there is no eye-witness before the court (whether called by the plaintiff or the defendant) who actually saw the incident, Ms Clare Anderson readily admitted in her Witness Statement dated 27 June 2018 that she was “unable to verify whether and how the Chair Pulling Incident happened, whether it was intentional or whether just a silly act or an unfortunate accident where Andy had simply tripped and moved the chair as the plaintiff was trying to sit down”;

(4)  Even in the absence of evidence of the circumstances, I agree the Chair-Pulling Incident is similar to the example of “misuse of equipment/environment”, which was and can reasonably be classified as low level under STINT 1.  Applying the guideline for sanctions under STINT 1, Ms Clare Anderson warned Andy Cho and informed his parents accordingly;

(5)  In any event, Professor Rose agreed that if it could not be established whether the Chair-Pulling Incident was intentional, accidental or just a “silly prank”, the verbal warning given by Ms Clare Anderson was appropriate.

67.DT Incident on 16 January 2014 (Year 9): It is noteworthy that the evidence of the only eye-witness to this Incident Mr James Sandford was never challenged under cross-examination.  Accordingly, there is simply no reason why his evidence should not be accepted:

(1)  At the time of the incident, Mr James Sandford only saw the involvement of James Francis and Jack Abbott and regarded the incident as “horseplay”, deciding that subject detention was warranted and an appropriate sanction.  In respect of his explanation in his Witness Statement dated 25 June 2018 as to why he used the word “bullying” in his email sent on 17 January 2014 at 11:30 am, again this was never challenged under cross-examination;

(2)  By the email dated 19 January 2014, Dr Poon identified Andy Cho as one of the culprits and exonerated Jack Abbott.  If the allegation by the plaintiff and/or his father that Jack Abbott was not involved is true, it is difficult to understand why Jack Abbott would apologise to the plaintiff and undertake the subject detention without protest;

(3)  Andy Cho merely received a warning from Ms Carolyn Andrews (Vice Principal).  The difference in sanctions suggests that there was simply a lack of evidence indicating his involvement.  As explained by Ms Fran Crouch, the warning was likely to be given as an “anticipatory caution” in response to an unverified allegation from a parent;

(4)  When asked whether Andy Cho was anywhere near where the DT Incident was happening, Mr Sandford gave a resounding “no” to the question.  In other words, it is irrefutable that Andy Cho was not involved in the DT Incident and his non-involvement would fundamentally break the accumulated chain of bullying incidents (if any) towards the Photo-Taking Incident;

(5)  Even Dr Poon acknowledged that “I believe we should adopt or rely on the observation of the teacher because he saw it with his naked eye as to what happened.  As to whether there was such a possibility of my son’s speculation or guess as to the participation of Andy who was behind, would instruct others to do this, well, I thought that was his personal feeling, but I'm not sure.”

68.More importantly and fundamentally, Professor Rose frankly conceded under cross-examination on Day 10 of the trial that there was no “pervasive” pattern (by his own definition of bullying) or “imbalance of power” from the alleged inappropriate comment by the substitute teacher on 30 November 2011 (Year 7) to the DT Incident on 16 January 2014 (Year 9):

“Q. We’ll come to that in a moment. But you would agree with me by no stretch of the imagination would you say that that presents a pervasive behavioural pattern of bullying or inappropriate behaviour, what we’ve looked at?

A. Up to this point - up to this point I would agree with you, yes.

…

Q. But nothing between Andy Cho and the plaintiff, there’s no evidence that you have seen that shows an imbalance of power between the two of them. Do you agree?

A. Between Andy Cho and the plaintiff?

Q. That's right. The boy.

A. I have not seen evidence to suggest that there is an imbalance of power up to this point.” (Emphasis added)

69.The frank admission of Professor Rose clearly supports the defendants’ contention that the incidents leading up to the Photo-Taking Incident bears no relevance.  The plaintiff has clearly failed to establish that he had been bullied (as defined, see paragraph 64 above) down to the DT Incident: there was a lack of a “pervasive behavioural pattern” as well as the absence of an “imbalance of power” between Andy Cho and the plaintiff.  It follows that the subsequent Photo-Taking Incident could not have been bullying conduct, at worst it was an isolated incident.

70.Senior Counsel for the plaintiff, in his oral Closing Submissions, tried to salvage his position by stating that Professor Rose when giving evidence had not been taken to the email form Ms Fran Crouch to the school social worker, Kamy Yeung, dated 18 March 2014 which states that Andy Cho “Year 9 - has social issues with [BP].  Has picked on him off and on I think probably from Y7”.  Mr Harris submits that this so-called “picking on” email is the “critical piece of evidence” and Professor Rose’s attention was not drawn to the same.  I do not agree with the plaintiff’s submission.

71.In my view, the plaintiff cannot rely on this email as evidence of further instances of conduct amounting to bullying of the plaintiff.  First of all, the “picking on” referred to in the email has not been particularised or pleaded in the plaintiff’s pleadings. Further, at paragraph 90 of the plaintiff’s Closing Submissions, the plaintiff himself pointed out that the main importance of this email relates “not directly to BP’s claim but to the strength or otherwise of the defendants’ defence that there was in place at the school an effective system for preventing bullying”.  In the circumstances, it would be wholly improper for the plaintiff to rely on such “picking on” as further unpleaded conduct amounting to bullying of the plaintiff.

72.In addition to the absence of the plaintiff giving evidence in court, this is yet another reason why his claim should be dismissed on this ground alone.

73.Photo-Taking Incident on 28 February 2014 (Year 9): in the light of the above evidence and analysis, the Photo-Taking Incident is clearly an isolated incident of inappropriate behaviour as opposed to bullying within its proper definition.  Furthermore, the incident clearly demonstrates that the plaintiff’s parents were over-protective parents who consistently did not necessarily act in the best interests of their son, knowingly or unwittingly:

(1)  In the absence of any direct oral evidence from the plaintiff, there is no evidence indicating the number and/or nature of the photograph(s) taken to enable the court to properly evaluate and decide whether the incident constituted “horseplay”/inappropriate behaviour or bullying;

(2)  In any event, Dr Poon agreed when questioned by the court that he only “conjectured that as a possibility that Andy may have sent the photo away by electronic means before he deleted them” contrary to the following evidence:

(a)  According to his statement written on 5 March 2014, Andy Cho says that he “took a photo of [BP] without his top on” and “deleted it straight away”;

(b)  With reference to the email sent on 2 March 2014 at 22:58, and in answering the question of the court as to why he underlined the words “showed [BP] his phone”, Dr Poon confirmed that the plaintiff had informed him the photo had been deleted;

(c)  Dr Poon admitted that he was unaware of any photograph of the plaintiff floating in cyberspace, nor did he make any effort to deliberately look for it;

(3)  Both his own handwritten statement produced on 5 March 2014 and the email from his father Mr Jay Kim to Ms Fran Crouch dated 6 March 2014 demonstrate that Andy Cho was regretful, remorseful and depressed by the Photo-Taking Incident.  By the letter dated 21 March 2014, Andy Cho’s parents even wrote a letter apologising on their son’s behalf.  Despite this:

(a)  “F⁰ wanted sch to expel Andy” as recorded by psychologist Dr Amy Fung on 24 March 2014;

(b)  In fact, Dr Poon was not afraid to admit in cross-examination that expelling Andy Cho “would be the best if that could be done”;

(4)  When asked about the restorative meeting, Dr Poon became “emotional” and went so far to say that the plaintiff “begged” him not to have the meeting, which is clearly contradicted by the contemporaneous records:

(a)  By the e-mail dated 5 March 2014, Ms Fran Crouch recorded that the plaintiff “agreed that an apology would be a good start, and was willing to take the extra step of considering a restorative meeting”;

(b)  By the e-mail dated 6 March 2014, Dr Poon alleged that the plaintiff “asked me if he could cancel the meeting”;

(c)  However, the Progress Sheet for the psychological consultation with Dr Amy Fung on 24 March 2014 only recorded “Pt agreed.  However parents objected ∵ they wanted more than the meeting & apology…Parents: not a good idea”.

74.The medical records are equally reflective of the character of the plaintiff’s parents.  By the email dated 17 March 2014, the parents warned Ms Fran Crouch that “please be advised that, [BP] will be seeing a well-known Psychologist.  Dr WONG Chung Kwong on Friday, March 21, 2014.  His charges for [BP] will be $9,000 for 90 minutes”.

75.As will be demonstrated below, Dr Poon has a tendency to use medical records to intimidate and/or overstate the situation in the hope that the recipient would give in to his demands.  By way of example:

(1)  Dr Poon unreservedly emailed a medical receipt to Ms Clare Anderson after the Chair-Pulling Incident on 20 June 2013 and threatened “attached please find the Official Receipt from the doctor.  As well as SIS, we deem Andy’s parents are also responsible.  Please handle.”;

(2)  During the course of her evidence in relation to Dr Poon’s letter dated 15 May 2014 Ms Fran Crouch described Dr Poon had “use the receipts of the medical expenses for [BP].  But he never, ever shared any information about [BP].  I found Dr Poon's tone quite intimidating”.

76.On 21 March 2014, the plaintiff and his parents consulted psychiatrist Dr Wong Chung-Kwong.  However, as much as Dr Poon considered that Dr Wong’s “fame is over-blown”, the reality was that Dr Wong’s Clinical Records did not specifically record the Photo-Taking Incident.  If the reason why they consulted Dr Wong was because of the Photo-Taking Incident, the failure to mention it to him is glaring and highly significant:

(1)  When the plaintiff was “seen together with parents”, there was a complaint of “bullied by peers” (but not specifically the Photo-Taking Incident);

(2)  When “Pt seen alone” the plaintiff made no mention of any bullying incident but mentioned “currently under pressure because needs to finish 8 assignments (7 individuals, 1 group), needs to hand in next week, most done about half” (Emphasis added);

(3)  As a matter of fact, the plaintiff was overwhelmed with homework or assignments from 17 March to 11 April 2014 and one can find he had repeatedly written in the 2013/14 School Planner phrases such as “Must Tomorrow”, “ASAP” or “Submit Now”.

77.Quite apart from the absurdity that Dr Wong Chung-Kwong saw the plaintiff for “1.5 hours” who “had taken the time to say a lot of things about his own self, his personal fans - things, before he asked my son to go inside”, the conduct of Dr Poon soon after the consultation unequivocally confirms that he was “shopping” for supporting medical records that could link to the Photo-Taking Incident.

78.By the e-mail sent on 17 March 2014 at 00:11, the plaintiff’s parents asked Ms Fran Crouch 15 questions in relation to the Photo-Taking Incident with the following descriptions (“Questioning E-mail”):

“[BP] said, he spent 3 months last year to get it over with what Andy had done on him. He does not know how long this matter will leave his mind. [BP] also said, he is feeling very “strange”. He does cry for many hours whenever he thinks of this. We as parents, know he is very sad and unhappy and we will never know when the photo(s) of [BP], or such humiliation will come up again…

…

Section A

1)      On February 28, 2014, after [BP] had his Water Safety Lesson and when he was inside the 3rd Floor Boys’ Changing Room in the South Island School, 3 students approached him and told him that, Andy just took photos of [BP] while he was changing…

…

Section B

8)   With reference to [BP], there were at least 4 incidents that Andy had done on him at school, namely i) pulling his pants, ii) pulling his chair away while [BP] was sitting down (and caused bruises on [BP]’s hips), iii) told James to pick [BP] up on [BP]’s armpit and iv) taking photos of [BP]’s while he was changing.  All these actions did not have [BP]’s consent nor agreement(s).  These actions were repeated incidents and continued by Andy.”

79.Clearly dismayed with the Clinical Records of Dr Wong Chung-Kwong, the plaintiff and his parents consulted psychologist Dr Amy Fung on 24 March 2014.  During the course of the consultation, Dr Poon “gave a list of such behaviours (as in letter brought by F⁰)”.  The letter refers to the document entitled “Background of [BP]”, which is found as part of the Progress Sheet.  It contains extracts of the Questioning E-mail identical to those written above, albeit re-arranged in a different order.

80.In the premises, the first time that the Photo-Taking Incident was recorded in the treatment records was when Dr Poon volunteered to provide the “Background of [BP]” to the treating psychologist, instead of Dr Amy Fung eliciting such information directly from the plaintiff.  Be that as it may, Dr Fung nevertheless recorded “interim: a no of projects - 8 at a time & deadline: This Friday”, which echoed the record made by Dr Wong Chung-Kwong.

81.Unsurprisingly, by the e-mail sent on 31 March 2014 at 01:18, Dr Poon deployed the medical receipts, “name-dropped” Dr Wong Chung-Kwong and Dr Amy Fung and made the following “threats” to Ms Fran Crouch:

“Please note that [BP] had been with Dr Wong Chung Kwong, JP on March 21, 2014 (Friday), who is a well-known Psychiatrist. Dr Wong suggested medication is required with follow-up sessions with [BP]. A receipt is hereby attached.

We then took [BP] to see Dr FUNG, Shuk Man Amy, PhD, Deputy Director of the Clinical Health Psychology Centre, Clinical Psychologist & Health Psychologist from the Hong Kong Sanatorium & Hospital on Monday March 24, 2014 on an urgent basis. Dr FUNG also suggested follow-up sessions with [BP]. Another receipt is hereby attached.

…

Please note that we will not accept any apology from Andy nor his family. We will return the letter to you. Let’s bless [BP]’s condition can be improved. If it gets out of hand, I will report the matter to the police and Andy will face criminal prosecution.

Lastly, [BP] is extremely sensitive. He said his life at school is “fake” and “unnatural”. Anyone approaching him will make him feel “being pressed” and “receiving a lot of pressure”. Please do not approach him at all to make it worse!”

82.Finally, the Photo-Taking Incident was laid to rest for a short while only after the plaintiff’s mother Mrs Margaret Poon had received the news that Andy Cho might be expelled for any breach of the “Commitment to Good Conduct Contract”:

“M⁰ seen first to give info.

…

The incident on 28.2.2014: resolved

School sanctioned the child (Andy) + he has to see sch[ool] counsellor also warned of chance of being expelled if he does the same thing again.

…

Completed the sch[ool] projects & yet was given as many again!

…

Assignments keep coming

…

A machine needs to stop & needs lubricant & ∴ he should try to think more about having good sleep & adding fuel/lubricant (fun + pleasure)

The way he handles his sch[ool] project = doing a doctrinal project - not suited to sch[ool] curriculum!”

83.In all the circumstances, from objecting to the restorative meeting to shopping for medical records, I agree the plaintiff’s parents were clearly determined and more concerned for the removal of Andy Cho from school than helping the plaintiff to rebuild peer relationship.  Furthermore, they warned the School not to approach the plaintiff and thereby impeded the School’s efforts in trying to offer help to the plaintiff.

84.Extraordinarily, the plaintiff attempted to shift the blame back to Ms Fran Crouch by suggesting to her that she ought to have counter-questioned Dr Poon despite his warning not to approach the plaintiff.  As a responsible teacher, Ms Crouch gave the following honest and forthright answer: “Dr Poon was pretty categorical and pretty angry; so no, I didn't.  I did my best to work around that”.

85.Attempted-Kicking Incident on 7 May 2014 (Year 9): in the absence of any oral evidence given by the plaintiff, there is no direct evidence to contradict the evidence of the review of the CCTV footage by Ms Fran Crouch from the beginning to the end of the trial.

86.If anything, the cross-examination of Ms Crouch by the plaintiff’s counsel (supplemented by re-examination) in fact re-enforced the weight of her CCTV review as follows:

(1)  Classroom Setting: The food technology classroom had two classrooms along a narrow corridor.  It would have been in a very contained area when the incident supposedly took place;

(2)  CCTV: The camera looked along the corridor.  Ms Crouch could zoom in with the camera so she could see movements quite clearly.  The camera was running all the time.  Both the plaintiff and Andy Cho were in the field of vision.  The camera was still on as the students walked through the door into the classroom;

(3)  Position of Students: When students were waiting to go into food technology class or any other practical subject, they lined up in a fairly orderly manner.  It was very easy to see movement along that corridor.  Ms Crouch also knew where to look because she had spoken to the students in that class;

(4)  The plaintiff: Ms Crouch knew the part of the corridor to focus in on where the plaintiff was standing.  She could see where the plaintiff was standing and movements around him.  She had a clear view of any legs being raised and she did not see a leg being raised.  Ms Crouch was confident that she saw no kick or attempted kick.  The picture was of good quality;

(5)  Re-Examination: Ms Crouch was looking for movements of arms, legs, backs, anything that could be construed that matched with the description that Dr Poon had given in his letter.  The plaintiff always wore his fleece even when it was 30 degrees and there were not very many students wearing their fleeces at the time.  This is consistent with the email dated 20 June 2014 recording that the plaintiff scarcely removed his fleece in the summer.

87.As to the explanation why the plaintiff had alleged the Attempted-Kicking Incident, the medical records may shed some light in this regard.  According to the complaint letter of Dr Poon dated 15 May 2014, the plaintiff did not reveal the Attempted-Kicking Incident on 7 May 2014 until the evening on “May 10, 2014 at 7pm”. Contrary to the evidence of Dr Poon, this was after the plaintiff “had been with Dr Fung again for 2.5 hours.”

88.However, according to the Progress Sheet for the consultation on 10 May 2014, psychologist Dr Amy Fung recorded that the plaintiff had been unhappy since 4 May 2014 and made no mention of the Attempted-Kicking Incident on 7 May 2014:

“Didn’t sleep well last night ∵ stg [ie something] happened

Both at sch[ool] & at home & are related → further harassment (repeated too)

…

“Second breach” - parents’ misunderstanding

Anger! Scared (next year)

F⁰’s report Sleeping machine: used continuously, so sleep Q[uality] should be better

…

Talked to parents. M⁰ report: (To come after p 2)

4/5

I’m scared

I want to finish

I want it back

5/5

School: Stg [ie something] happened

28/2, 5/3, 2/4, 5/5

It’s hard for a sensitive & superstitious person to convey messages

…

5/5 Learning futures movie - generates own -ve thoughts”

89.Dr Amy Fung also recorded the reaction of Dr Poon and her own opinion of the plaintiff as follows:

“Asked F⁰ if she could be allowed to listen to pt more (to ask pt to tell her more) as F⁰ tends to think that it’s not good for pt to think & talk too much about it.

(F⁰ is still holding “superstitious” beliefs - has sought someone to check on family’s Feng-Shui in the past week)

…

Highly plausible that the pt is having rounds & rounds of thoughts which have actually become more complicated too.

& the reason for him keeping his thoughts to himself is most probably related to some “superstitious” beliefs (that harmful consequences may follow)” (Emphasis added).

90.The above Progress Sheet is consistent with the consultation on 3 May 2014 when “his parents reported that he could almost complete most of his Chinese assignments yesterday ∵ looked happy.  Could even allow himself a break (45 mins game)” and the plaintiff “found himself really focusing well on his assignments & the -ve thoughts have not occurred as often”.

91.Similar to the Photo-Taking Incident, after Dr Poon had issued the complaint letter alleging the circumstances of the Attempted-Kicking Incident, he promptly made sure that similar description found its way into the Progress Sheet of psychologist Dr Amy Fung during the consultation on 16 May 2014.

92.However, the plaintiff himself made no specific mention of the Attempted-Kicking Incident but referred to two incidents that respectively occurred on 5 March 2014 and 7 April 2014 without any details when he saw Dr Amy Fung alone during the same consultation:

“Related that

Something happened on 5.3.2014 (after lunch) which led to the first negative thought. Didn’t really want to talk about it but said he’s been thinking of it daily.

Then another thing happened on 7.4.2014, and the entire year group talked about it…That brought up the second negative thought.

…He’s also written on a paper (quite a long one), and his mother has read it. But the paper was lost now (thrown away). His mother did respond to that piece of paper and said it was not true (something stupid etc) and he doesn’t have to think about it etc.

Preferred to talk about the 2^nd one but yet no clear details were told.

…

Also, he responded that he has anger. Claimed that he can be angry with things and people, but he has not told Andy of his anger - because (a pile of incidents) past experiences told him that telling people of his feelings only made things worse (towards the end of the session, he also exclaimed that telling Dad of his feelings in the past had resulted similarly in worsened condition. Whereas for his mother, he would say things middle of the way, and both did not really understand him (not knowing him as his true self).” (Emphasis added)

93.Finally, according to the Progress Sheet for the consultation on 23 May 2014, Dr Amy Fung recorded the following matters relating to the Attempted-Kicking Incident:

“F⁰ brought him here. Arrived at 3pm for the polysomnography re sleep apnoea study.

…

Superstitious

…

Can’t really talk about things ∵ of the superstition/formula & the curse etc.

…

& there are strange occurrences that happened to him.

Examples: On 21 May he was talking to a friend in classroom about a project. Without his awareness, he found that his voice changed to that of another person in the room who he doesn’t like & he thinks it’s the perpetrator who has substituted his voice.

…

His friend asked him about stg [ie something] he heard of which happened on 7.5.2014

The perpetrator tried to kick him at a direction but didn’t actually succeed. He heard the voice & turned round but saw nothing.

…

The change of voice had happened many times ∵ he attributed it to the perpetrator”

94.The recording that the plaintiff “turned around but saw nothing” is consistent with what Dr Poon wrote to the School on 15 May 2014: “whilst [BP] was outside the classroom and was about to enter, Andy was behind him…”.  Logically, if the plaintiff was allegedly in front facing the direction of the classroom with his back against Andy Cho, it would be impossible for him to see, let alone for Dr Poon to provide a detailed and graphic description as to how Andy Cho attempted to kick him including but not limited to “3/4 of a meter (towards [BP]’s hip)”. At any rate, the plaintiff has deliberately chosen not to give evidence and the court should guard against findings of fact based on pure guesswork.

95.For the sake of completeness, according to the progress note for the consultation on 30 May 2014, psychologist Dr Amy Fung recorded the following:

“In Technology class, he was sitting on his chair with a friend next to him (at one side of a rectangular table). The [perpetrator] and 2 of his group were at his back near a round table. While he could not see clearly, he sensed that the [perpetrator] stood on the bottom of his chair, and might be doing something. Teachers were unaware of this. However, throughout the class, he was never touched at all.

…

Messages given to the patient:

That he might have been overly sensitive and vigilant of what the [perpetrator] may do

…

Seems that while he brings up things that he said has affected him, in reality, nothing has actually happened (as in the first scenario he brought up). This also implied that he failed to draw a conclusion that nothing really has happened, and so he should not be too vigilant! In fact, more often problems did not occur at school (than it has occurred).” (Emphasis added)

96.In short, the entire medical records relating to the Attempted-Kicking Incident are consistent with the plaintiff’s family “hx[ie history]of someone having 撞鬼 experiences” as recorded in the first consultation with psychologist Dr Amy Fung.

97.On the combined strength of the CCTV review by Ms Fran Crouch and the examination of the medical records, the only plausible explanation for the plaintiff’s complaint of the Attempted-Kicking Incident appears to be that it was his imagination and/or hallucination which has given rise to the complaint.

98.As to the conduct of Dr Poon in relation to the Attempted-Kicking Incident, focused with a mindset demanding the expulsion of Andy Cho, he inquired the same with Carolyn Andrews (Vice Principal) by his email dated 26 May 2014.  In doing so, Dr Poon also alleged:

“On May 23, 2014, we had to take [BP] to hospital as “in-patent” to perform more test, and see Dr Fung for 2 hours again. That night in the hospital, I had to pat him, sitting beside him, holding his hand for 3 hours before I was able to take him to sleep. That night, like most other nights at home, I slept beside him but still woke up and screamed.

Above are facts that can be produced by medical receipts to any related parties.

…

Andy has already put the school in jeopardy.  I am now waiting for the school’s decision whether Andy will be expelled or not.  We want Andy to be expelled from the school, immediately without delay, before the end of this school year!!!”

99.To put it bluntly, the above email is misleading and a distortion of the truth when the plaintiff was in fact scheduled to undertake “the polysomnography re sleep apnoea study” in the same hospital as the consultation with Dr Amy Fung (ie HK Sanatorium).  The test was scheduled by reason of the fact that Dr Tony Li had previously made a diagnosis of “sleep apnoea” for “snoring+” on 9 May 2014.

100.Ultimately, the Overnight Polysomnography Report for the study on 23 May 2014 confirmed that “arousals were normal for age [ie 13 years old]”.  However, the deliberate omission to mention the sleep test and/or its result is yet another glaring example of exaggeration in an attempt to cause intimidation to the School, to which Dr Poon failed to provide any proper explanation.

101.By reason of the foregoing analysis, including the lack of relevance of the incidents before the Photo-Taking Incident and the complete absence of proof of the Attempted-Kicking Incident, the court accepts the following expert opinion of Ms Coosje Griffiths, which succinctly describes the nature of the Photo-Taking Incident:

“12.17A In response to paragraph 12.2 above, and as stated at paragraph 10.12A above, the opinion of both experts is limited without understanding the full circumstances of the Photo-taking incident. Whilst Andy Cho was involved in the chair-pulling incident, there is no evidence to confirm that he had inflicted any hurtful behaviour against the plaintiff for 8 months from the chair-pulling incident on 19 June 2013 to the Photo-taking incident on 28 February 2014.

12.17B Under the circumstances, CG is of the view that the Photo-taking incident involved unacceptable behaviour and misconduct, requiring disciplinary actions, rather than wilful or persistent or bullying behaviour (see paragraph 1.7A in relation to frequency of bullying). Despite the Commitment Contract imposed on Andy Cho as a sanction under STINT 4, coupled with the abovementioned analysis that the Photo-taking incident did not fall within the definition of “bullying”, the incident is similar to an “STINT 1 jumped” incident for serious mis-“use of…mobile” (as set out in the Sanctions Policy of the SIS School Planner 2012-2013).”

F.     EVALUATION OF THE ANTI-BULLYING SYSTEM

F1.    Relevance of Government guidelines

102.Both experts in their respective expert report referred to numerous literature and differing standards to evaluate the Anti-Bullying system of the School.  In Bradford-Smart v West Sussex County Council [2000] 11 WLUK 232 at pages 16-17 (upheld in Bradford-Smart [2002] LGR 489 (CA)), Garland J commented on the approach to expert evidence with reference to government policy:

“…I did not find the expert evidence of very great assistance in unravelling what is perhaps the greatest difficulty in the case, a difficulty compounded by the inconsistencies of Mr Harvey’s evidence to which I shall turn in due course. I shall, therefore, have to reach conclusions both as to the scope of the duty and whether or not there were breaches, by looking at the objectives which the school set itself and which were in accordance with good practice and government policy, and such assistance as I am able to derive from the expert evidence.”

103.According to the Re-Re-Amended Statement of Claim, it is the plaintiff’s case that the School should comply with the guidelines in the “Co-creating a Harmonious School Resource Package” issued by the Education Bureau.  Furthermore, Professor Rose agreed that the Education Bureau gave “basic guidelines to all schools in Hong Kong”.

104.As a proper framework of analysis, the Anti-Bullying system of the School should be measured against the guidelines issued by the Education Bureau.  In this regard, the starting position is the School Administrative Guide (2013/14 school year), section 3.7.6 entitled “Bullying”, which references the following documents:

(1)  The resource package on “Co-creating a Harmonious School” (2003) (“2003 Package”);

(2)  The resource package on “Co-creating a Harmonious School - Stop Bullying” (2010);

(3)  “Flowchart for Handling School Bullying” (under Appendix 4 of the “Stop Bullying” package).

105.According to the “Stop Bullying” package, the “Preface” explained that the differences between the 2003 Package and the “Stop Bullying” package as follows:

(1)  The 2003 Package provides “secondary and primary schools with suggestions and teaching materials to prevent and handle school bullying”;

(2)  The “Stop Bullying” package provides “suggestions on establishing an anti-bullying policy and implementation strategies with a Whole School Approach”.

106.More importantly, the “Stop Bullying” package specified that the schools were entitled to select which relevant parts of both packages in developing their anti-bullying work: “Based on students’ needs, schools can select relevant parts of “Co-creating a Harmonious School” and “Co-creating a Harmonious School: Stop Bullying” to develop their anti-bullying work.”

F2.    Restorative Approach

107.According to Chapter 2 (Intervention) of the 2003 Package, the Education Bureau advocated the Improvement through Taking Responsibility (ITR) Approach.  The “objectives” of the approach are stated to be:

“1.  To stop bullying behaviour immediately, and to engage all students involved in the incident to go through the five steps of “recalling”, “reflecting”, “taking responsibility”, “effecting improvements”, and “co-creating harmony” to prevent recurrence of bullying and rebuild peer relationship.

2.  To educate every student involved in the incident (including the bullies, the victims, the reinforcers and the bystanders) and make them understand that the school will not tolerate bullying, and to impose on them the responsibility of tackling the problem and making self-initiated improvements.”

108.The suggested approach emphasised on positive attitudes in problem-solving and was clearly designed based on local circumstances and needs and comprises the following “three methods, principles and skills in counselling and managing bullying”: (1) Solution-Focused Therapy; (2) The No Blame Approach; (3) The Pikas Method of Shared Concern.

109.According to the expert report of Ms Coosje Griffiths dated 8 August 2019, the Pikas Method “was incorporated into the School’s Staged Intervention (STINT) process”.  It is beyond dispute that the principles and approach advocated by the Education Bureau are restorative in nature, which is precisely the practice and approach adopted by the School.

110.However, against the undisputed fact that the parents objected to the plaintiff taking part in the restorative meeting with Andy Cho as proposed on 5 March 2014, Professor Rose repeatedly expressed pessimism towards the restorative approach in an apparent attempt to justify the unreasonable decision of the parents.

111.Professor Rose’s only reason would appear to be his favourite fallback position that he has not seen the research that it works in a case of bullying.  This, with respect, is putting the cart before the horse, because the incident should first be evaluated to see whether it is in fact a bullying incident or an instance of inappropriate behaviour.  Professor Chad Rose appears to jump to the conclusion that it is bullying and then disparages the restorative approach.

112.Although Professor Rose purportedly continued to cast doubt on the approach, he reluctantly accepted the findings in Wong, “Program Effectiveness of a Restorative Whole-School Approach for Tackling School Bullying in Hong Kong” (September 2011), International Journal of Offender Therapy and Comparative Criminology 55(6):846-62:

“The current study may help to shed light on the question of whether restorative practices may be compatible with the Chinese culture in Hong Kong, which appears plausible as they emphasize collective values, and the restoration of interpersonal harmony. Based on our direct observation, in running the restorative conference at the intervention schools, the child is surrounded by a community of care, the issue of accountability and responsibility for wrongdoing becomes the focus for discussion and restoration. It really helps the bullies and victims to recover. Our results are in line with similar findings (Hopkins, 2004; Morrison, 2007; Wong, 2000, 2004b) that restorative practices are effective for resolving bullying because the practices are based on values such as respect, openness, empowerment, inclusion, tolerance, integrity, and congruence. The skills that develop from these values include remaining impartial and nonjudgmental, respecting the perspective of all involved, actively and empathically listening, developing rapport among participants, and empowering participants to come up with solutions. The skills were noted while we were observing the restorative practices in the intervention school.” (Emphasis supplied)

F3.    Relevant Elements of the Anti-Bullying System

113.The 2003 Package suggested that “implementation of the whole-school policy on anti-bullying can be divided into three stages”, which are largely consistent with the “Stop Bullying” package: (1) “Preparation Stage”; (2) “Implementation Stage”; (3) “Evaluation Stage”.

114.The “Preparation Stage” includes the following procedures: (1) “Defining Bullying”; (2) “Conducting data collection/research, opinion survey and discussion” or “Self-review” (under the “Stop Bullying” package); (3) “Forming a working group”; (4) “Training teachers”.

115.Self-review: According to the 2003 Package, the purpose of the “self-review” during the “preparation stage” is to:

(1)  “Understand the bullying situation in school and raise awareness”;

(2)  “Examine the bullying situation in depth in school”;

(3)  “Review present preventive measures and contingency plans”;

(4)  “Lay down the direction and focus of the anti-bullying policy”.

116.In the present case, there is unchallenged and overwhelming evidence that the School had a very low level incidence of inappropriate behaviour, let alone bullying:

(1)  1^st defendant: “104. In all my years at SIS, I would say that there were, on average, one or possibly two suspensions per year for inappropriate behaviour.  In some years there were none at all.  Whenever there were suspensions, they were always for significant incidents.”;

(2)  Ms Fran Crouch: “41. In all my years at SIS, I do not recall SIS having a problem about bullying or inappropriate behaviour.  Of course, there are occasional incidents of misbehaviour in a school as large and diverse at SIS, which is perfectly normal and to be expected.  However I would say that SIS did not have a lot of bullying incidents to deal with.  From my recollection, incidents of bullying were very rare and I would say probably not more than two or three a year, if any.”;

(3)  Ms Coosje Griffiths: “…And then coming out of all of that would be how many suspensions in a school.  Well, I actually don't know one single school in Western Australia - there may be one, but none of the schools I'm aware of had suspension rates of only about two per year.  So in my estimation, that is an outcome of a system which is working extremely well with the suspension rates so low that most schools would not be achieving that level of low suspension.  That means that it's - the school is running well, that they're managing behaviour and safety at the school at a level that I have not experienced in the schools I’ve worked at.” (Emphasis added).

117.Forming a working group: According to the 2003 Package, the aim of the working group is to “draw up an anti-bullying policy and collaborate with different parties in implementing the policy”.  As explained by the 1^st defendant:

(1)  He was one of the people who created the value statements and others created the specific policies underneath the high-level guidance;

(2)  The Anti-Bullying Policy would have gone through the pastoral teams, school leadership teams and signed off by the other senior leadership team;

(3)  The authors of the Anti-Bullying Policy highly likely would have looked at the “Immediate Intervention Strategies” under the 2003 Package.

118.Training teachers: the “Stop Bullying” package provides: “Schools should schedule regular meetings to help teachers understand the anti-bullying policy and the handling procedures”.  In the present case:

(1)  According to the Special Education Needs Policy dated November 2012: “A comprehensive CPD programme is provided, ranging from international opportunities to see best practice, central CPD led by experienced ESF practitioners, individual school training or online training accessible to all teachers, education assistants and where applicable to parents,”;

(2)  The “SIS Collaboration and Meeting Schedule 2013-14” in the SIS Staff Handbook (2013.14) showed that the staff had to attend Continuing Practice Development (CPD) and/or relevant staff meetings on the following dates which effectively covered the whole academic year: (a) 2 September 2013 (“New Staff induction”); (b) 30 September 2013; (c) 21 October 2013 (“SEN CPD (All Staff)”); (d) 4 November 2013; (e) 24 February 2014 (“Dept Sessions with IN Staff”); (f) 3 March 2014; (g) 19 May 2014 (“ESF CPD (all schools)”).

119.The “Implementation Stage” includes the following procedures: (1) “Announcing the policy”; (2) “Implementing the policy”; (3) “Implementing support programmes”.

120.Implementing support programmes: The 2003 Package provided the following examples of support programmes: (1) “Integration into academic subjects”; (2) “Class programmes”; (3) “Parent education”.

121.According to the Anti-Bullying policy, the School “address the issue of bullying in tutor groups and in our Learning Futures curriculum and the message is reinforced whenever such behaviour becomes apparent…”.  With reference to the “My Friends Youth Resilience Program: Activity Book for Youth” (2012), Ms Clare Anderson confirmed that the Anti-Bullying policy and Code were “the underlying principles upon which bullying was discussed in learning futures”.

122.According to the Activity Book, the method of teaching is as follows:

(1)  “Steps for managing bullying”;

(2)  Discussion on bullying (see “Discuss”);

(3)  Examples of bullying (see Part A and Part B);

(4)  “Cyber Bullying”.

123.According to the 2003 Package, an example of “parent education” would simply be “Prepare brochures and pamphlets on anti-bullying policy and distribute them to parents”.  It is beyond dispute that all students and parents must sign acknowledgment of reading and supporting all school polices including the Anti-Bullying Policy before the commencement of the school year.  As Ms Coosje Griffiths observed:

“A. I think it's a very reasonable thing for the school to have done. In fact, I don't know that many schools that make - it wasn't common practice, during those years anyway, for schools to have that in place. So I think it's an insurance that parents and students are aware of the policy, have read the policy, or if in the future they hadn't read it at the time, that they would make sure that they would. But the signing means that they are expected to have read that policy.” (Emphasis added)

124.In response to the proposition advanced by the plaintiff and his expert Professor Rose that the Anti-Bullying system could only be effective if the policy was distributed through hardcopy School Planners, this lies ill in the expert’s mouth when his own cited meta-analysis by Farrington, D P and Ttofi, M M highlighted that one of the key elements in some of the anti-bullying programs included:

“Elements 19 and 20 (videos and virtual reality computer games): Some programs utilized technology in their anti-bullying materials such as use of anti-bullying videos or virtual reality games to raise students’ awareness regarding bullying.”

F4.    Whole School Approach

125.The School Administrative Guide (2013/14 school year) also specifically stated that the schools should adopt a “Whole School Approach” in its principles of an anti-bullying policy:

“2.  Schools should adopt a “Whole School Approach” to formulate and implement anti-bullying strategies.  Principles of an anti-bullying policy should include:

Clear standpoint of “Zero Tolerance”;

Reporting mechanism and handling procedures;

Monitoring with high transparency;

Handling each bullying incident with proactive and serious attitudes.”

126.The Guide further stated the “support for students with special education needs” under section 3.8.4 as follows: “1. Schools are encouraged to adopt a Whole School Approach (WSA) to providing systematic and comprehensive support for students with special educational needs (SEN) to develop their potential through inclusive policy, culture and practices.  Ordinary schools adopting the WSA are provided with additional resources, teacher training and professional support from the EDB.”

127.According to the Individual Needs (SEN) Policy dated June 2009: “The Individual Needs department will match students’ academic, social, emotional, physical and language needs to the mainstream curriculum. Inclusion with mainstream subjects facilitates development of independence and self-management, grown in life and social skills, self-esteem and confidence.”

128.During the course of re-examination of Professor Chad Rose, the plaintiff had the benefit of deploying and advancing his case with reference to the Operation Guide on the Whole School Approach to Integrated Education (August 2014 (3^rd Edition)).  However, the mileage (or lack thereof) was simply to confirm the existence of the 3-Tier Support Model for the Whole School Approach.

129.Ms Coosje Griffiths helpfully identified the plaintiff as falling under “Tier-1: Early identification and quality teaching in the regular classroom for students with transient or mild learning difficulties” for the following reasons:

“A. Academically, he was doing quite well. He was assessed at a level 1 adjustment needs. He was able to participate in class, so it was an inclusive level 1/tier 1-type of intervention where there are adjustments being made but at a tier 1 rather than persistent learning difficulties or intensive severe learning difficulties.”

130.At trial, the plaintiff opened his case by alleging for the very first time that he required an Individual Needs Teacher and reproduced extract of the Individual Needs (SEN) Policy dated June 2009: “Individual Needs Teachers to support mainstream students and to act as keyworkers and co-ordinate Individual Education Plans and Student Support plans and to liaise with parents and teachers and monitor progress”.

131.Given it is his own pleaded case that the plaintiff was at Level of Adjustment 1, had the plaintiff read on in the Policy, he would have discovered that Individual Needs Teachers as keyworkers were generally only available for students at Level of Adjustment 2 to 4 where Student Support Plans (SSPs) and Individual Education Plans (IEPs) were indicated.

132.Quite apart from “barking up the wrong tree” by questioning the 1^st defendant for not finding out who the plaintiff’s key worker was after the Photo-Taking Incident, Ms Carol Chapman provided useful assistance by unequivocally confirming that key workers would come into consideration “when a student has an SSP or an IEP” from Level of Adjustment 2 upwards.

F5.    Response to the Photo-Taking Incident

133.As for the “Flowchart for Handling School Bullying” (under Appendix 4 of the “Stop Bullying” package) specifically referred by the School Administrative Guide (2013/14 school year), the relevant parts of the flowchart provide:

(1)  “When a teacher discovers or is informed of bullying, he/she must stay calm and go to stop the bullying.”

(2)  “Under safe conditions, the teacher should separate the students involved and have an initial understanding and follow-up immediately.  He/She should also check if anybody is injured and consider if assistance is needed.”

(3)  If “not injured or emotionally unstable”: “Initial mediation by teachers”.

(4)  If mediation “not effective”: “Teachers concerned or the guidance and discipline team follow up and handle the incident in depth, including using “Improvement through Taking Responsibility” Approach under “Co-creating a Harmonious School” (Highlights) to handle students involved in the bullying incident, draw up improvement plans, interview parents or refer to the guidance and discipline team/social workers/student guidance personnel/educational psychologists for follow-up.  If necessary, the school should consult the Police School Liaison Officers.”

134.Without prejudice to the finding above that the Photo-Taking Incident was not bullying within its proper definition, I agree that the way the Incident was handled had complied with the Flowchart:

(1)  “Initial understanding”: After being informed by the plaintiff’s parents of the incident in their email dated 2 March 2014, investigation commenced on the very next day from 3 March 2014 as recorded in the notes within the plaintiff’s handwritten note written by Ms Fran Crouch who met with “Keshav + Twain”, Andy Cho and the plaintiff;

(2)  “Initial mediation”: Mediation by teachers was attempted by obtaining agreement of both Andy Cho and the plaintiff to take part in a restorative meeting, although it was ultimately objected to and rejected by the plaintiff’s parents;

(3)  Procedure if mediation “not effective”:

(a)  Ms Fran Crouch promptly informed Andy Cho’s parents of the Photo-Taking Incident by her email sent on 6 March 2014 at 21:03, after having completed her initial inquiries;

(b)  As part of the “improvement plans”, Andy Cho agreed to attend regular meetings with the School Counsellor, Ms Fran Crouch (Head of Namas House) and Ms Carolyn Andrews (Vice Principal) commencing from 21 March 2014 until his case was closed in June 2015 when he left the School;

(c)  Applying Staged Intervention (STINT) as part of the Improvement through Taking Responsibility (ITR) Approach, a Commitment to Good Conduct Contract was imposed on Andy Cho as a sanction as a “STINT 1 jumped” incident on 28 March 2014.

F6.    Evaluation by Council of International Schools (CIS)

135.Given Professor Rose agreed that the Council of International Schools (CIS) is a “well-reputed independent body”, due weight is placed on their review of the School including but not limited to:

(1)  “STINT (Staged Intervention) has been created, developed and reinforced every year through CPD staff meetings.  Some departments employ a STINT tracking sheet.  Conversations regarding student issues now widely refer to STINT levels of intervention when deciding on what action to take in relation to a given issue. (C) [ie Completed]”;

(2)  “We have also had a T&L session this year on digital literacy and our Head of Media Literacy, Iain Williamson has compiled a checklist of skills for staff on digital literacy, with the aim being that CPD can then be tailored to meet staff needs.  Other T&L sessions have also taken place, for instance Head of Maths, Daniela Vasile, led a session on using data with classes.  There have also been sessions on CAS and the Pastoral Learning Curriculum, which have included outside speakers.

(3)  “Over the past number of years we have had a CPD focus on differentiation within subjects offering support to departments via Inclusion Guardians.  Any member of staff in any subject area can approach the IN Department or the Inclusion Guardian, for their curriculum area, to help”;

(4)  “Through the evidence presented and discussions with staff and the school's leadership, it was clear that the ESF guidelines regarding staffing, class sizes and workloads are followed closely and that all Hong Kong Education Bureau requirements are met.  Teachers are assigned to duties by the school with the appropriate consideration of their expertise and qualifications.  ESF requirements regarding non-contact time are followed.  A number of teachers expressed concern about heavy workloads but most of these teachers indicated that much of their additional workloads were self-generated in a desire to support students and satisfy their own professional desires”;

(5)  “ESF and SIS set high expectations for teachers and support staff to foster respectful interactions among and with students and their peers.  Staff commented on the collegiality, professionalism and friendly relationships between staff members, and the accessibility of the school leadership.  Students also noted the mutual respect between teachers and students, and are proud to highlight that they are valued by staff”;

(6)  “There is a sense of diversity and inclusion on the SIS campus.  One student described SIS has “Diversity with Unity”.  Students from diverse backgrounds, students with diverse interests and students with diverse learning needs are welcomed and included in classes and activities.

SIS procedures for identifying the learning needs of students begins with centralised testing at ESF of students new to the ESF system.  Members of the IN and EAL team are included in the interview with parent and student.  Testing and interviews ensure that the school can support the students’ learning needs. There is a referral process if a learning need is suspected after enrolment”;

(7)  “The curriculum within the school has moved towards providing a programme to address wellbeing of students.  In Year 9 ‘My Friends Youth Skills for Life’ programme has been introduced to provide students with the Life Skills and a Mindfulness Skills.  In PE the Years 12 and 13 Sport and Leisure activities have centred on a wellbeing programme.  The laptop induction programme in Year 7 specifically addresses areas of cyber bullying and a healthy approach to the use of ICT (which is reinforced with parents).

The new Pastoral Leaming Curriculum is being planned this year and one of the challenges will be to ensure all aspects of a good Pastoral Programme are included and that there is a continuity and progression of learning”;

(8)  “In general, parents report satisfaction with school-to-home communication.  Parents have expressed concern about an “overload of information” that must be scrolled or read through for specifics and notices sent “at the last moment”.  Leadership groups might investigate and seek ways to address these concerns.

The website provides an excellent overview of the culture and partnerships at SIS.  The Learning Blog and the Twitter link give up-to date and visual evidence of the focus on learning at SIS”;

(9)  “…The school’s VLE provides students and their parents with access to the curriculum and lesson planning and enables continuity in case of absence or in the event of an unexpected school closure ie cyclone.  Extensive use is made of the media facilities.  The school's professional film and video-making capabilities are extensively used to enhance learning”;

(10)  “The SIS Philosophy of ‘Making a Difference’, is absolutely in the forefront of the school’s development of programmes, services and activities.  All stakeholder groups with whom the Visitors spoke, ie leadership, staff, teachers, students, School Council members and parents, understand and appreciate the Philosophy and understand the implications of teaching learning and development of global citizenship” (Ms Coosje Griffiths stated in her evidence that this was an “innovative practice and highly accepted and admired, …, by educationists”).

G.    CONCLUSION AND DISPOSITION

136.On the materials before the court, and for the reasons stated above, there is plainly insufficient evidence to prove that the Photo-Taking Incident and/or the Attempted-Kicking Incident was bullying within its proper definition.  Dr Poon (with the assistance of the plaintiff’s solicitor) has brought this action against the defendants for the purpose of “venting” his anger because the School did not comply with his demands for the expulsion of Andy Cho but leaving the problems of the plaintiff to be “exacerbated by over-protective parents” (McLaughlin, “Responding to Bullying Among Children with Special Educational Needs and/or Disabilities” (2010) University of Cambridge Faculty of Education for the Anti-Bullying Alliance cited by the plaintiff’s expert, at page 29).

137.As His Honour Judge Jeremy Richardson QC stated in T v Hall Schools of Wimbledon LLP [2013] EWHC 2728 (QB), which involved dismissal of a claim by the parents for breach of contract against a school:

“75. The focus of any school should be upon the education and welfare of the children who attend. Of course, parents need to play a full role and take a keen interest in their children. All of that is right and proper. But equally parents must, and most do, appreciate a school is a community that needs to be permitted to get on with its principle task of educating children collectively. No school should be bombarded with unwarrantable demands by parents. Teaching and other staff bear a heavy responsibility in what they do. Looking over their shoulder for fear of litigious parents is an aspect of their professional lives they could all do without.” (Emphasis supplied)

138.The answer to the two questions posed at paragraph 21 above must be “No” and “Yes” respectively.

139.Accordingly, I order that the claim of the plaintiff in this action be dismissed.

140.The costs of these proceedings (including all costs reserved, if any) be paid by the plaintiff to the defendants, such costs are to be taxed if not agreed (with a certificate for 2 counsel).  The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

141.The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same.

142.Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.

Mr Paul Harris, SC, leading Ms Christina Lee, instructed by Messrs Margaret Poon & Co (assigned by DLA), for the plaintiff

Mr Kumar Ramanathan, SC, leading Mr Eric Tsoi, instructed by Messrs Kennedys, for the defendants