Woo Kwok Ping v. The Incorporated Management Committee of Tsuen Wan Trade Association Primary School

DCCJ 3296/2020

[2022] HKDC 1120

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3296 OF 2020

--------------------------

--------------------------

Before:  His Honour Judge H. Au-Yeung (Paper Disposal)

Dates of Submissions:  27 July and 17 & 24 August 2022

Date of Decision:  10 October 2022

--------------------------

DECISION

--------------------------

INTRODUCTION

1.By a Judgment handed down on 12 April 2022 (“the Judgment”), this Court dismissed the plaintiff’s claim and the defendant’s counterclaim, and made a costs order nisi (which was subsequently made absolute upon the expiry of 14 days) that the plaintiff shall bear 70% of the IMC’s costs of the action (including all costs reserved), with certificate for two counsel, to be taxed if not agreed.

2.By a summons filed on 17 June 2022 (“the Leave Summons”)[1], the plaintiff sought leave to appeal against the Judgment.

3.I will adopt herein the abbreviations used in the Judgment.

THE APPLICABLE LEGAL PRINCIPLES

4.The requirement for granting leave to appeal is set out in section 63A(2) of the District Court Ordinance (Cap 336, Laws of Hong Kong). It is trite that leave to appeal shall not be granted unless the Court is satisfied that the intended appeal has a reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard.

5.It is also well established that a reasonable prospect of success means an appeal with prospects that are more than fanciful without having to be probable (SMSE v KL [2009] 4 HKLRD 129 at paragraph 17).

THE DRAFT GROUNDS OF APPEAL

6.The plaintiff’s draft grounds of appeal may be summarised as follows[2]:

(1)  This Court erred in coming to the conclusion that sections 55 to 57 of the Education Ordinance did not intend to confer any private law cause of action[3];

(2)  This Court was wrong in its ruling that sections 55 to 57 of the Education Ordinance are inconsistent with section 9 of the Employment Ordinance[4];

(3)  This Court erred in finding that Warnings 8 and 13 were justified. Further or alternatively, it was wrong to conclude that Warning 8 and Warning 12 and/or the 7 warnings cumulatively amounted to a grave breach of duty or gross misconduct[5].

DISCUSSION

Ground 1 – Breach of statutory duty

7.At the trial, it was submitted for and on behalf of the plaintiff that, even if the plaintiff’s summary dismissal was justified, the IMC was in breach of sections 55 to 57 of the Education Ordinance, because the IMC did not follow the procedures laid down in the said statutory provisions when it dismissed the plaintiff.

8.It is not disputed that, as far as breach of statutory duty simpliciter is concerned, a crucial question which the Court has to consider is whether the aforesaid statutory provisions confer any private law cause of action on the plaintiff.

9.In the Judgment, it had been held that no private law cause of action had been created by the said statutory provisions.

10.In the present application, the plaintiff argued that this Court erred in holding such a view. It was submitted that:

(1)  The present case is distinguishable from Ko Hon Yue v Liu Ching Leung [2008] 1 HKLRD 482, because the Education Ordinance affords specific protections to principals in that, unlike teachers, they cannot be dismissed with only a majority vote of the IMC;

(2)  The Education Ordinance also provides specific limitations on the circumstances in which the Permanent Secretary may withdraw his approval of a principal. No such limitations are placed on the dismissal of teachers;

(3)  Sections 55 to 56 of the Education Ordinance are therefore a recognition of the special status of principals in schools and of the need to protect their position by ensuring that they are treated with due fairness and free from abuses;

(4)  In the circumstances, it is clear that sections 55 to 57 of the Education Ordinance are intended to protect a limited class of the public, i.e. the principals.

11.As I explained in the Judgment, it is the construction of the statute which is of paramount importance.

12.In Medical Council of Hong Kong v Chow Siu Shek [2000] 3 HKCFAR 144, Bokhary PJ reminded that:

“[…] When the true position under a statute is to be ascertained by interpretation, it is necessary to read all of the relevant provision together and in the context of the whole statute as a purposive unity in its appropriate legal and social setting. Furthermore it is necessary to identify the interpretative considerations involved and then, if they conflict, to weigh and balance them.” (at 154B – C)

13.When interpreting the Education Ordinance, it is important to bear in mind that this Ordinance (together with the Education Regulations) prescribe a regulatory system for the promotion of education, which is for the benefit and protection of the public at large. In particular, the purpose of the Education Ordinance is “to promote education in Hong Kong, and to consolidate and amend the law relating to the supervision and control of schools and the teaching therein, and for purposes connected therewith”[6]. It is not a piece of legislation enacted for the protection of school principals or teachers. Viewed in such light, I am of the view that what Chu J (as Chu JA then was) said in Ko Hon Yue (supra) should be applicable herein with equal force.

14.Ms Poon for the plaintiff submitted that this Court erred in understanding what Au-Yeung J said in Woo Kwok Ping v The Incorporated Management Committee of Tsuen Wan Trade Association Primary School (No.2) [2020] HKLRD 717 in that her Ladyship had in fact made a ruling at paragraph 28 rather than setting out the plaintiff’s argument made therein. I have already dealt with this argument in paragraphs 675 – 676 of the Judgment. Suffices for me to say that I am not persuaded by Ms Poon’s argument at all, nor do I think that there is any reasonable prospect for her to argue this point successfully on appeal.

15.Furthermore, Ms Poon’s reliance on what Chung J said in Woo Kwok Ping v The Incorporated Management Committee of Tsuen Wan Trade Association Primary School [2013] 5 HKLRD 264 is also misconceived, as Chung J was considering the matter in the context of an application for interlocutory injunction, when all his Lordship was concerned with was whether there was any serious question to be tried. Moreover, it must be borne in mind that it was not held therein that sections 55 to 57 of the Education Ordinance have created a private law cause of action.

16.Ms Poon’s complaint that this Court had failed to consider or consider sufficiently the case of Lau Chi Fai & Another v Secretary for Justice & Another [1999] 2 HKLRD 494 is also not made out: see paragraphs 685 to 691 of the Judgment.

17.Lastly, Ms Poon submitted that since there is no case law regarding whether the Education Ordinance gives rise to a private law cause of action for principals, it would be in the interest of justice for the Court of Appeal to give a decision on the matter.

18.With respect, I do not agree. I am not persuaded that it is necessary for the Court of Appeal to clarify the matter for the sake of principals generally, not to mention the society at large, for it must be rare (Ms Poon did not suggest otherwise) that principals would be dismissed summarily as in the present case.

19.I therefore hold the view that Ground 1 has no reasonable prospect of success, and that there is no reason in the interest of justice why the appeal on the basis of Ground 1 should be heard.

Ground 2 – sections 55 – 57 of the Education Ordinance vs summary dismissal

20.In the Judgment, it was held that if the plaintiff is right in that sections 55 to 57 of the Education Ordinance have given her a security of tenure until, for example, the Permanent Secretary has withdrawn her approval pursuant to section 55(c) and 56, that would be inconsistent with other provisions which have also been incorporated into the Contract. For example, the IMC’s power to terminate the principal’s employment right away would be taken away with such an interpretation.

21.Ms Poon submitted that such a view was wrongly held. She quoted the case of Cheung Chi Keung v The Hospital Authority [2006] 2 HKLRD 46 and stated that the statutory right of termination without notice or payment in lieu may be subject to modification by contract, and that the correct view is that the IMC’s statutory right to terminate the plaintiff’s employment for cause may only be exercised upon compliance with sections 55 to 57 of the Education Ordinance.

22.The problem with this argument is that, as it had been held in paragraph 681 of the Judgment, the IMC simply did not owe any contractual duty to the plaintiff to comply with sections 55 to 57 of the Education Ordinance.

23.Further, Ms Poon’s reliance on the case of Cheung Chi Keung (supra), with greatest respect, is totally misconceived. As Ms Poon recognised, in that case, the “modification” in the employer’s right to terminate an employment for cause was that the stipulated disciplinary procedures had to be followed before dismissal. However, sections 55 to 57 of the Education Ordinance are not about disciplinary procedures. If the plaintiff is right in her submission, then those statutory provisions would only delay the termination of the plaintiff’s employment which was otherwise totally justified. That cannot be right.

24.Viewed in such light, I do not think that there is any reasonable prospect of success in the plaintiff’s argument.

25.Ms Poon also criticised the example which this Court gave in paragraph 683 of the Judgment in which I stated:

“The plaintiff’s assertion that a principal cannot be removed until the Permanent Secretary has withdrawn her approval would lead to unjust and undesirable consequences. Say for example, a principal has been convicted of a criminal offence relating to children which undoubtedly would raise serious concern on the safety of the young students in the school if the principal remains in office even for one more day. If the plaintiff is right, then the convicted principal cannot be removed until the Permanent Secretary has officially withdrawn his approval of the principal. This may take time. In the meantime, the well-being of the school children would be at risk. Even if the Permanent Secretary withdraws his approval on the following day, does it mean that the principal should be entitled to be paid for one more day because such a principal has held office until then? In my view, that cannot be right. Section 55 of the Education Ordinance should not be interpreted to mean that the right on the part of the IMC to summarily dismiss a principal is taken away.”

26.Ms Poon submitted that this example was misconceived because such a convicted principal would undoubtedly be suspended pursuant to section 11(1)(c) of the Education Ordinance as soon as such allegations arose and there would be no issue regarding the safety of the students.

27.Section 11(1)(c) of the Education Ordinance provides that:

“(1) Notwithstanding any other provision of this Ordinance or of any other law, an employer may without notice or payment in lieu suspend from employment any employee for a period not exceeding 14 days—

(a) …

(b) …

(c) pending the outcome of any criminal proceedings against the employee arising out of or connected with his employment:

Provided that where such criminal proceedings are not concluded within the period of 14 days such suspension may be extended till the conclusion of the criminal proceedings.

28.This provision simply does not provide any answer as alleged, because it is only applicable to the situation where the outcome of any criminal proceedings is still pending. That does not deal with the situation in the above example.

29.Ms Poon then sought to rely on the following findings in Lau Chi Fai (supra) that:

“(1) The effect of the [Education Ordinance] is to underpin the position of school principals by imposing restrictions on the freedom of their employers, the management committees of their schools, to remove them from office (at 500F – G).

(2) The Defendant has a contractual obligation to honour the provisions relating to security of tenure for principals in the Education Ordinance (at 502B – C).”[7]

30.It was further submitted that the said findings are not dependent on whether or not the Code of Aid was incorporated into the employment contract or enforceability, and that it is unclear on what basis and how this Court distinguished the Lau Chi Fai case.

31.In the Judgment, this Court had already highlighted the following important feature of the Lau Chi Fai case:

“686. In his judgment, Keith JA (sitting as an additional judge of the Court of First Instance) first of all held that:

‘Thus, in circumstances to which [section 46](a), (b), (c), (d), (e) and (g) do not apply, the principal of a school who is a registered teacher is entitled to hold office until he reaches the age of 70. Accordingly, the effect of the Ordinance is to underpin the position of school principals by imposing restrictions on the freedom of their employers, the management committees of their schools, to remove them from office.’ (at 500F – G)

687. It must be emphasized here that when Keith JA talked about “restrictions on the freedom of employers to remove principals from office”, it was said in the context of a case where section 46(a), (b), (c), (d), (e) and (g) did not apply. In other words, the court was not concerned about the scenario where the principal was dismissed by reason of misconduct.”

32.It was continued at paragraph 691 of the Judgment:

“It can therefore be seen that the Lau Chi Fai case is clearly distinguishable from the present case. While section 57 of the said Code could not be enforced against Mr Lau for it had not been incorporated into Mr Lau’s contract of employment, it is the plaintiff’s own pleaded case in this action that the Code of Aid had been incorporated into the Contract. There is no question of enforceability here.”

33.I therefore do not understand why the plaintiff would say that it is “unclear” on what basis and how this Court distinguished the Lau Chi Fai case.

34.By reason of the above, I hold the view that Ground 2 has no reasonable prospect of success, nor do I consider that there is any other reason in the interest of justice that the appeal on this ground should be heard.

Ground 3 – Findings on summary dismissal

35.In the Judgment, it was found that the IMC was justified in issuing warning letters in relation to the following matters:

(1)  Warning 5 (Retirement age);

(2)  Warning 8 (Renting out 6/F Classrooms);

(3)  Warning 11 (Renovation of toilets);

(4)  Warning 12 (Community Care Fund Scheme);

(5)  Warning 13 (Principal’s Room);

(6)  Warning 14 (Book lists);

(7)  Warning 15 (Persistent delay in the provision of information).[8]

36.It was further held that, out of the above, the plaintiff’s misconducts in relation to Warning 8 (Renting out 6/F Classrooms) and Warning 12 (Community Care Fund Scheme) were very serious[9], and that even if the above two matters, considered together, did not amount to grave breach of duty or gross misconduct, the overall effect of all seven misconducts would be adequate[10].

37.It was stated in the draft Grounds of Appeal that:

(1)  This Court erred in finding that the above 7 warnings were justified;

(2)  Further or alternatively, it was contended that it was wrong for the Court to conclude that Warning 8 and Warning 12 and/or the 7 warnings cumulatively amounted to a grave breach of duty or gross misconduct.

38.Despite what was stated in the draft Grounds of Appeal, it appears from Ms Poon’s written submissions lodged in support of this application that the plaintiff is now only challenging the justification of Warnings 8 and 13. I will therefore consider her submissions in relation to these warnings first, before discussing her submissions on the cumulative effect of the 7 warnings.

39.This Ground is directed at the Court’s findings of facts. It is now well established that the appellate court would only intervene when it is satisfied that the findings by the trial judge is plainly wrong: Ting Kwok Keung v Tam Dick Yuen [2002] 5 HKCFAR 336. I would also bear in mind what Lam VP (as he then was) stated in China Gold Finance Limited v CIL Holdings Limited (CACV 11/2015, unreported, 27 November 2015) as follows:

“14. […] In our judicial system, the appellate process is not designed to give a litigant (or his counsel) a platform for regurgitating his closing submissions on the evidence and factual aspects of the case again with the hope that the appellate judges may come to a different view to that of the primary judge. It is thus, as we said above, a misuse of the appellate process to place before this court submissions which, in substance, are (or should be) submissions advanced by way of closing submissions at the trial after the judge has heard all the evidence.

15. In an appeal, the court of appeal should focus on the question whether the primary judge has fallen in palpable errors which could give rise to grounds for intervention by the appellate court. As explained in the cases, it is not germane that judges in this court may reach a different conclusion from that of the judge. There are many areas, particularly those in relation to findings of fact, where judges can reasonably reach different conclusions from each other. That would not be a ground for intervention.

16. Thus, in an appeal, it is not helpful if counsel and litigant (acted in person) only repeat submissions already advanced and considered by the primary judge at the trial. The starting point should be the judgment of the primary judge and the identification of palpable errors (which must be errors of such nature which warrants intervention from this court) in the judgment. The mere assertion that the finding of the judge is against the weight of the evidence or that the judge should have reached another conclusion because of points advanced in the closing submissions below are not errors coming within that category.

[…]

19. The kinds of mistake which could engage an appellate court’s power of intervention were recently explained by Lord Neuberger in In re B (A Child) [2013] 1 WLR 1911, at paragraph 53:

‘…where a trial judge has reached a conclusion on the primary facts, it is only in a rare case, such as where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached, that an appellate tribunal will interfere with it.’ ”

Warning 8

40.The IMC’s complaint under Warning 8 which this Court considered in the Judgment was confined to the allegation that the plaintiff had entered into the HKAA Contract without the knowledge and/or consent of the IMC[11].

41.Briefly, it was found that:

(1)  The HKAA Contract was in effect a tenancy agreement[12];

(2)  When she entered into the HKAA Contract, the plaintiff knew that it was improper to rent the 6/F Classrooms out by a tenancy agreement[13];

(3)  There was no uncertainty in the mind of the plaintiff at the material time that she must seek the IMC’s approval before she entered into the HKAA Contract[14];

(4)  Even according to her own evidence, the plaintiff had failed to inform the IMC about the HKAA Contract in good time[15];

(5)  While the plaintiff might have informed Mr Chu that she had found a sponsor who agreed to pay sponsorship fee to the School on a monthly basis, she did not ask for his approval to rent the 6/F Classrooms out as alleged[16];

(6)  The plaintiff had never provided Mr Chu/the Foundation with a copy of the HKAA Contract because she did not want to disclose the HKAA Contract to others[17].

42.Ms Poon submitted that this Court erred in finding that the plaintiff did not want to disclose the HKAA Contract to others. She reiterated that the date of the HKAA Contract, the “lease period”, the deposit and the monthly income received had been clearly inputted into the Expense Summary for the month of December 2011 (“the Expense Summary”) of the School, and that Mr Chu also accepted in cross-examination that the same could be seen from the said document.

43.This is a regurgitation of the plaintiff’s written closing submissions[18].

44.The relevant entries of the Expense Summary contained the following information:

“香港藝術聯會 – 借場地贊助津貼(按金)”

“香港藝術聯會 – 借場地贊助津貼 (2/2012) (簽約日期: 30/12/2011) (第一個月贊助)”

45.This line of submissions had been dealt with in paragraphs 346 and 350 of the Judgment:

“346. I hold the view that the plaintiff did not do that because she did not want to disclose the HKAA Contract to others. As a matter of fact, according to the minutes of the Foundation’s Board of Directors meeting held on 17 December 2012, the plaintiff had explained in the Foundation’s Board meeting on 15 May 2012 that the sponsorship fee of $23,000 to be received from a private institution was for the hiring of the use of the school hall. That reinforces my belief that the plaintiff had all along not revealed the full details of the HKAA Contract to Mr Chu.” (emphasis added)

“350. […] the plaintiff relied on the Expense Summary to support her case that Mr Chu knew about the HKAA Contract. I do not accept that argument. It is simply not apparent from the entries that the plaintiff had entered into an agreement to rent the 6/F Classrooms out to others for 3 years.” (emphasis added)

46.Ms Poon’s next point was that this Court erred in finding that the plaintiff knew that it was improper to rent the 6/F Classrooms out by a tenancy agreement. She submitted that:

(1)  this Court did not make any finding on the plaintiff’s motive in doing so;

(2)  the EDB Circular No.5/2011 did not limit the term of the hire of accommodation in schools and there was nothing which stipulated that it was improper to rent out classrooms by way of a tenancy agreement;

(3)  there was no evidence that the lease to HKAA had interfered with the normal operation of the School;

(4)  there was nothing improper for the School to charge HKAA at a concessionary rate;

(5)  the Schedule of Recommended Charges was for reference only.

47.This argument is a red herring. Since there is no challenge against the findings that:

(1)  There was no uncertainty in the mind of the plaintiff at the material time that she must seek the IMC’s approval before she entered into the HKAA Contract;

(2)  Even according to the plaintiff’s own evidence, she had failed to inform the IMC about the HKAA Contract in good time; and

(3)  The plaintiff did not ask for Mr Chu’s approval to rent the 6/F Classrooms out as alleged,

this argument cannot assist the plaintiff even if she really did not know it was improper to rent the 6/F Classrooms out by a tenancy agreement.

48.In any event, there is no reasonable prospect of success in this argument:

(1)  If it was proper for the plaintiff to rent out the 6/F Classrooms by way of a tenancy agreement, she did not have to frame the HKAA Contract in the way she did, and in which she had avoided using terms such as “tenancy agreement” or “rental”[19];

(2)  In fact, the plaintiff recognised that she could not rent out the 6/F Classrooms[20];

(3)  The plaintiff’s motive is irrelevant, especially in the light of the clear evidence against her;

(4)  The plaintiff’s assertion that there is no guideline which stated that it was improper to rent out classrooms by tenancy agreement is very bold indeed. As it was pointed out in paragraph 335 of the Judgment, according to the Schedule of Charges for Hire of Accommodation, the recommended charges for the hiring of classrooms were expressed on hourly basis. It is not difficult to understand that, in the normal circumstances, classrooms would only be hired for hours rather than days, not to mention for weeks, months or even years as in the present case.

49.Lastly, Ms Poon drew this Court’s attention to the fact that EDB had also blamed the IMC by letter dated 23 May 2013:

“雖然貴法團校董會稱未獲校長知會，但作為學校管理的問責單位，對此宗管理上的疏忽事件實屬責無旁貸。...”

50.Ms Poon did not elaborate on how this view of the EDB could be relevant to the issue before this Court, apart from saying that the IMC had shifted all the blame onto the plaintiff by issuing Warning 8. With greatest respect, it is difficult to understand how this could be relevant to the issues before this Court. It is not open to the plaintiff to argue that if the IMC had supervised or monitored her more closely, she would not have been able to commit those wrongs.

51.Hence, there is no reasonable prospect of success in the plaintiff’s challenge against the justification of Warning 8.

Warning 13

52.This warning concerned the plaintiff’s maladministration in improperly carrying out structural alterations of the Principal’s Room in the School. It was held that:

(1)  The plaintiff should have sought the IMC’s approval before the modification works were done[21];

(2)  The plaintiff had not sought any IMC’s approval[22];

(3)  While the plaintiff alleged that she was only obliged to seek endorsement from the IMC after the modification works had been completed, she did not plead that she had ever done so accordingly, and it was not recorded in the IMC meeting minutes for the meeting held on 20 August 2012 (the first IMC meeting held after such works) that he had reported to the IMC about the works[23];

(4)  The plaintiff did not ask Mr Chu for approval as alleged[24];

(5)  Pursuant to Clause 8.6.1 of the School Administrative Guide, the plaintiff should have sought the approval of the Permanent Secretary before doing the modification works to the Principal’s Room[25];

(6)  The plaintiff had failed to obtain consent from the Permanent Secretary accordingly[26];

(7)  It was not enough for the plaintiff to inform EDB about the creation of a new Conference Room by virtue of her letters dated 21 March 2012 and 7 May 2012 because the information she provided therein was incomplete[27].

53.First of all, Ms Poon submitted that, on the IMC’s pleading, there was no basis for the Court to come to the conclusion that the plaintiff should have sought the IMC’s approval before the modification works were done.

54.In this regard, it must be borne in mind that:

(1)  The plaintiff, in her written closing submissions, did not argue that there was no need to obtain the IMC’s approval[28];

(2)  In the IMC’s written closing submissions, IMC’s counsel summarised the plaintiff’s case in relation to Warning 13 as follows: (i) the modification works did not involve structural alterations; (ii) EDB had acknowledged that there were no structural alterations involved and the Housing Authority also raised no objection; (iii) Mr Chu had indicated his verbal approval[29]. Not only did Ms Poon make no comment on such a summary in her written closing submissions[30], she had also expressly confirmed to this Court during her oral closing submissions that the IMC’s counsel had summarised the plaintiff’s case correctly;

(3)  In fact, it was the plaintiff’s own evidence that she was only obliged to seek endorsement from the IMC after the modification works had been completed[31];

(4)  It was also her own evidence that she had asked for Mr Chu’s approval before the modification works were done[32].

55.With respect, in such circumstances, it is not open to the plaintiff to suggest that the Court had not paid regard to her pleaded case.

56.Ms Poon then challenged the reasoning of this Court in its ruling that the plaintiff should have sought the IMC’s approval before the modification works were done. To recap, the reasons relied on by this Court were that[33]:

(1)  The works were by no means a small scale modification in that another room was created, and part of the corridor was occupied by such a newly created room;

(2)  The works would necessarily involve the spending of modification costs which were not of a regular nature, and therefore the IMC’s approval should be obtained before such expenses were incurred.

57.When Ms Poon elaborated her argument in her written submissions, she focused on the failure on the part of the IMC to produce evidence to show that the convening of IMC meeting and the passing of a resolution was necessary under any statutes, codes or guidelines.

58.With greatest respect, her argument simply cannot advance the plaintiff’s case at all, because even if she were right in that there was no need for the IMC to pass any resolution in an IMC meeting as such, the plaintiff’s evidence that she had obtained oral approval from Mr Chu had been rejected[34].

59.Ms Poon further argued that since Mr Chu stated in cross-examination that it was for the plaintiff as principal to decide herself what was important enough for her to seek approval from the IMC, she could not be blamed for failing to seek such approval by exercising her own discretion or judgement. The short answer to this argument is that, as mentioned above, it was simply not her case that she did not need to ask for approval.

60.In any event, given the fact that the plaintiff did not challenge the Court’s findings that the plaintiff should have sought the approval of the Permanent Secretary before doing the modification works to the Principal’s Room, that she had failed to obtain such consent and that it was not enough for her to inform EDB about the creation of a new Conference Room by virtue of her letters dated 21 March 2012 and 7 May 2012, her arguments above, even if accepted by the Court of Appeal to be correct, cannot assist her at all. Warning 13 would still be justified.

61.There is therefore no reasonable prospect of success in the plaintiff’s challenge against the justification of Warning 13.

Cumulative effect of the 7 substantiated warnings

62.When considering whether the plaintiff’s misconduct was serious enough to justify summary dismissal, this Court had taken into account the provisions of section 9(1) of the Employment Ordinance and Allidem Mae G v Kwong Si Lin [2006] 1 HKC 252. It appears that the plaintiff is not asserting that this Court was wrong in law, but only that the Court had not assessed the seriousness of the misconduct properly.

63.It was said that the following errors and/or findings significantly and fundamentally lessened the seriousness of the incidents:

“(1) Warning 5 – the learned Judge had erred in coming to the conclusion that the IMC was justified to issue Warning 5 to the Plaintiff.

(2) Warning 8 – the learned Judge had erred in coming to the conclusion that the Plaintiff did not want to disclose the HKAA Contract to others, and that when the Plaintiff entered into the HKAA Contract, she ‘knew’ that it was improper to rent the classrooms out by a tenancy agreement. The learned Judge also failed to take any or sufficient account EDB’s letter to the Defendant dated 23 May 2013, which stated that regarding the HKAA incident, the Defendant’s lack of supervision itself was serious: -

‘雖然貴法團校董會稱未獲校長知會，但作為學校管理的問責單位，對此宗管理上的疏忽事件實屬責無旁貸。...’

(3) Warning 11 – the learned Judge fairly held that the Court is unable to say confidently whether the Defendant was right when it was submitted that all the renovation works of the different toilets should be treated under one single project. Warning 11 was therefore not as serious as the Defendant claims.

(4) Warning 12 – the learned Judge had erred in coming to the conclusion that the IMC was justified to issue Warning 12 to the Plaintiff.

(5) Warning 13 – the learned Judge erred in coming to the conclusion that the Plaintiff should have sought the Defendant’s approval before the modification works to the Principal’s Room were done.

(6) Warning 14 – the learned Judge erred in coming to the conclusion that the Plaintiff should have sought the Defendant’s approval before the modification works to the Principal’s Room were done.

(7) Warning 15 – of the 7 alleged areas of delay under Warning 15, only 3 were found by the learned Judge to be justified. Warning 15 was therefore not as serious as the Defendant claims.”

64.With greatest respect to Ms Poon, these arguments are totally without merit:

(1)  The arguments against Warnings 8 and 13 had already been dealt with above;

(2)  The plaintiff’s challenges against Warnings 5 and 12 were not supported by any reason;

(3)  While the misconducts under Warnings 11 and 15 were not as serious as what the IMC claimed, the plaintiff did not put forward any argument in support of her contention (if any) that this Court had failed to consider their seriousness to the extent that they were substantiated;

(4)  The plaintiff’s argument in relation to Warning 14 is a duplication of her argument under Warning 13. Warning 14 was about the plaintiff’s failure to distribute book lists to the students but not about the Principal’s Room.

65.Ms Poon then argued that the 7 substantiated warnings by themselves or cumulatively were insufficiently grave to amount to repudiation of the contract because the Court had failed to take any or sufficient account of numerous matters.

66.Firstly, Ms Poon argued that the 7 warnings “could have been the result of mistake or misunderstanding” or “could be the result of ignorance, carelessness or even recklessness”, which does not amount to a grave breach of duty or gross misconduct justifying summary dismissal.

67.Ms Poon adopted the phrases in quotations above from the case of Tsang Tak Chi v China Wall Limited (HCLA 33/1998, unreported, 21 December 1998). In that case, the employee was summarily dismissed, on the basis that he had sold two machines owed by his employer at an exceptionally low price without the employer’s consent. He brought a claim at the Labour Tribunal and the Presiding Officer found that he had been unfairly dismissed without notice, because the employee had the authority to sell those machines. On the employer’s appeal, Yeung J (as he then was) held that, on the evidence, the Presiding Officer was entitled to make the factual findings as he did. His Lordship further had the following to say, after referring to section 9 of the Employment Ordinance:

“The appellant, through Mr. Lam indicated that the only ground to justify the summary dismissal was the ‘misconduct’ of the respondent in selling the machines in question at a low price without the consent of the appellant.

Even if it was right that the respondent had sold the machines without the expressed authority of the appellant and that the sale price was an exceptionally low one, that per se did not mean that the summary dismissal against the respondent was justified.

There was not enough evidence to show that the respondent was guilty of the misconduct stipulated under section 9 of the Employment Ordinance to deserve summary dismissal.

The selling of the machines without authority at a low price could be the result of mistake or misunderstanding. It could be the result of ignorance, carelessness or even recklessness.

But summary dismissal is a very serious step to take against any employer. It is the “capital punishment” in that if the dismissal is justified, the employee will be deprived of all the protection provided by the Employment Ordinance. There will be no wages in lieu of notice, no annual leave pay, no severance payments, no end of year payment, no long service payment no matter how long the employee has been in employment.

Immediate dismissal of an employee by reason of one single act of misconduct, in my view can only be justified in very exceptional circumstances. It may also be necessary to balance the impact of the summary dismissal on the employee with the effect of the employee’s ‘misconduct’ on the employer to decide if summary dismissal is justified.” (pages 9 – 10)

68.Properly understood, I do not think Yeung J was laying down any general principles as such. It does not serve any useful purpose for the plaintiff to pick one or two phrases and then treat it as if they have general applications to all cases. In any event, given the factual findings of the Labour Tribunal which was supported by Yeung J, what his Lordship said was only obiter.

69.More importantly, it is pointless for the plaintiff to allege that it “could have been the result of mistake or misunderstanding” or “could be the result of ignorance, carelessness or even recklessness”. That is not good enough, because the focus should not be “what could be”, but “what her case was”.

70.In Tsang Tak Chi (supra), his Lordship also referred to the case of Jupiter General Insce. Co. v. Shroff [1937] All E.R. 67 at page 73, in which Lord Maugham held that “the test to be applied must vary with the nature of the business and the nature of the position held by the employee, and that decisions in other cases are of little value”. In my view, this is the principle which we have to bear in mind.

71.These arguments are therefore rejected.

72.Secondly, Ms Poon also stated repeatedly that this Court did not find any fraud or dishonesty on the part of the plaintiff.

73.“Guilty of fraud or dishonesty” is only one of the bases upon which an employer may summarily dismiss an employee pursuant to section 9 of the Employment Ordinance, but this is not the only basis. Hence, this argument cannot assist the plaintiff at all. Reference should also be made to section 57(g) of the Code of Aid which stipulated that summary dismissal is possible in circumstances where there is a grave breach of duty.

74.Thirdly, the plaintiff contended that this Court did not point to any ulterior motive on her part when she gave inadequate information to the EDB when she sought EDB’s consent for the modification works of the Principal’s Room (Warning 13) or when she entered into the HKAA Contract (Warning 8).

75.The plaintiff’s misconduct would of course have been more serious if she had any ulterior motive (for example, for her own financial benefit) when she committed her wrongdoings. However, that does not mean that the finding of such motive is a must before the Court may uphold the IMC’s decision on summary dismissal. In fact, it was not the IMC’s case that the plaintiff had any ulterior motive as such. Further, it had never been the plaintiff’s argument that such a motive must be proved before she could be lawfully dismissed.

76.Fourthly, Ms Poon submitted that it is necessary to balance the impact of the summary dismissal on the plaintiff with the effect of her misconduct on the IMC to decide if summary dismissal was justified, especially when:

(1)  the plaintiff had served the School for 27 years;

(2)  she had never been alleged of any misconduct before August 2012;

(3)  she was only a year away from retirement when she was summarily dismissed.

77.I believe Ms Poon had adopted this line of submission from what Yeung J said in Tsang Tak Chi (supra). Insofar as it is Ms Poon’s argument that the standard required of the plaintiff should be lowered by reason of her having served the School for a long time and the fact that she was only one year away from retirement when she was summarily dismissed, this argument must be rejected.

78.It is also meaningless to say that the plaintiff had never been alleged of any misconduct before August 2012. The fact is that the IMC had been able to substantiate 7 allegations of misconduct which were committed within a short time against her.

79.Fifthly, it was submitted that the IMC had issued 15 verbal reminders/warnings/severe warnings within one year, of which 8 were not substantiated at the trial.

80.This Court was of course well aware of this when the ultimate question on justification of summary dismissal was considered. However, I did not (and still do not) think that the 7 substantiated misconducts would be made less serious by the fact that there were 8 other unsubstantiated complaints.

81.Sixthly, it was said that it was necessary for the Court to make a finding on why the plaintiff had committed the wrong in question, and that without which it was difficult, if not impossible, to ascertain objectively whether she has manifested an intention not to be bound by her employment contract.

82.I do not accept this argument.

83.First of all, as aforesaid, it is not a must for the IMC to prove “ulterior motive”.

84.Further, the plaintiff’s reliance on the case of Cheung Chi Wah Patrick v Hong Kong Cement Co. Ltd. [2017] 5 HKC 515 in support of her submission that it was necessary for the Court to make a finding on why the plaintiff had committed the wrongs in question is misplaced, because what was stated therein by L Chan J was said in the context of that particular case. To demonstrate the point, I only have to quote the followings:

“56. [Employer]’s submission is that in considering whether it is justifiable to dismiss an employee under s. 9(1)(a)(ii) of the Employment Ordinance, it is only necessary to consider whether the employee’s misconduct is inconsistent with the due and faithful discharge of his duties and that the employee’s explanation on why he has committed the misconduct is irrelevant for the consideration of this question.

57. I disagree with this submission. I consider that it is necessary to make a finding as to why the employee has committed the conduct in question. Without such consideration, it is difficult, if not impossible, to ascertain objectively whether the employee has manifested an intention not to be bound by the employment contract. It is only when it is clear that the employee has by his conduct manifested such an intention that he can be dismissed summarily under s. 9 of the ordinance. On this point, I am in agreement with Deputy Judge Lam in Chung Man Chiu.

58. In this case, not only did the respondent not manifest any intention not to be bound by the essential terms of his employment contract, he had in fact acted faithfully in the discharge of his duties. He took legal advice as instructed and then acted in accordance with the advice. The unfortunate thing is that he misunderstood a poorly given legal advice and thus conducted himself wrongly. He was also not acting in a neglectful manner. He did not neglect anything in seeking the legal advice and acting pursuant to it. I do not think the miscomprehension of a poorly given legal advice is a serious neglect of duty. It is perhaps an ill-advised conduct or omission to act, as a result of an error of judgment per Gillard J. The respondent was also not disobeying any order either. He in fact carried out what he was ordered to do.” (emphasis added)

85.It can therefore be seen that the reason behind the employee’s action in Cheung Chi Wah Patrick (supra) is relevant to the question of whether he had acted in a neglectful manner.

86.In the present case, the plaintiff had put forward her full case in respect of all the warnings and her explanations on all the actions which she had taken, and this Court had dealt with all of them in the Judgment. I do not think there is any room for the plaintiff to allege that this Court had erred in failing to make any findings on why she had committed the wrongs in question.

87.Seventhly, it was emphasised that all that the plaintiff had done was for the good of the School rather than for her own benefit. Be that as it may, it does not mean that the plaintiff could do whatever she wanted in disregard of rules and regulations.

88.Eighthly, Ms Poon stated that the IMC had all along adopted a lax and flexible approach in the management of the School, and the plaintiff should not take all the blame. I do not think this argument may assist the plaintiff, because when this Court considered the IMC’s allegations against the plaintiff, this factor had been duly taken into account.

Conclusion on Ground 3

89.All in all, I am not persuaded that the plaintiff has a reasonable prospect of success on Ground 3.

ORDER

90.By reasons of the aforesaid, the plaintiff’s application for leave to appeal is dismissed.

COSTS

91.There is no reason why costs should not follow the event. I make a costs order nisi that the plaintiff shall bear the defendant’s costs of the Leave Summons, with certificate for counsel, to be taxed if not agreed.

92.The plaintiff’s own costs shall be taxed in accordance with Legal Aid Regulations.

93.The above order nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on paper) within 14 days hereof.

Ms Debora Poon, instructed by Ho, Tse, Wai & Partners, for the plaintiff

Mr Harrison Miao, instructed by Zhong Lun Law Firm, for the defendant