A v. B

CAMP 178/2025, [2025] HKCA 965

On Appeal from [2025] HKCFI 3755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 178 OF 2025

(ON AN INTENDED APPEAL FROM HCA NO 746 OF 2025)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon G Lam JA (giving the Reasons for Judgment of the Court):

Introduction

1.The defendant is a company running a school in Hong Kong. We shall refer to it simply as “the school”. The plaintiff is the father of a minor, to whom we shall refer as “X”, who was a student at the school until her expulsion in March 2025. The plaintiff brought an action in the Court of First Instance to impugn the school’s decision to expel her daughter. He also applied on an urgent basis for an injunction, pending the final determination of the action, to restrain the school from acting on the expulsion decision and to require the school to reinstate X as a pupil in the meantime. In April 2025, Deputy High Court Judge Gary C C Lam granted an interim injunction pending the substantive hearing of the interlocutory application, thus allowing X to complete the academic year at the school. On 17 July 2025, after a hearing, he dismissed the plaintiff’s application. On 22 August 2025 the judge issued a written decision refusing leave to appeal.

2.The plaintiff now asks this court for leave to appeal and, if leave is given, for an order allowing the appeal and granting the interlocutory injunction sought. Directions have been given for an expedited rolled-up hearing and, in order to protect the children involved, for anonymizing the parties. At the conclusion of the hearing we refused to grant leave to appeal. These are the reasons for our decision.

The factual background

3.X had enrolled in the school since the age of 6 and had been there for over 9 years. But for the expulsion she would now have been in the penultimate year of secondary school there.

4.The incident that led to her expulsion took place during a study tour in a European country organised by the school earlier this year, attended by X together with over 30 other pupils and 3 accompanying teachers (originally 4 but one was unexpectedly unable to go).

5.According to the report of the accompanying teachers, on day 3 of the trip, a student, whom we shall call “Y”, informed the teachers that she had been feeling “strange” and, on enquiry, told them she had eaten a candy given to her by X. When asked in private by the teachers, X told them she had given Y a normal, commercially produced sweet received from her host family. Y continued to feel unwell and was eventually admitted into a hospital on the evening of the next day. A urine test there revealed she was suffering from cannabis intoxication. In the brief statement Y wrote at the hospital, she said on day 3 she had taken a sweet from X which she was told was made by X’s host family, and had since felt weird until day 4 afternoon.

6.The plaintiff, who happened to be in the same country, was informed of the incident and went to collect X on day 5 morning. When a teacher invited X to give a statement of her version of events, the plaintiff said that X would not write anything without first consulting a lawyer. After X left the group, the teachers inspected the belongings of all the other students but did not find anything unusual.

7.Later that day, after talking with X, the plaintiff emailed the school, explaining that during the tour X had purchased many sweets from several grocery stores in 2 cities including the candy she shared with Y and that, if this candy was the cause of the traces found in Y’s tests, X had never imagined that candies sold in grocery stores could contain prohibited or dangerous substances. Later that night, the plaintiff took X back to her host family and she rejoined the tour.

8.The principal of the school decided to join the group and flew there. She interviewed all the students except X because she, on the plaintiff’s instruction, asked for the interview to be recorded, which was not acceptable to the principal. Instructed by the principal, the teachers visited the kind of stores indicated by X and were informed that it was not possible to purchase sweets containing cannabis or THC compounds (as found in Y’s tests) and that only CBD products were legally available and then only to adults over the age of 18.

9.According to Y, subsequently, during a museum visit in the tour, X approached her saying she wanted to clear things up and said “think about what you’re gonna say because I could be kicked out of school.”

10.A week after the tour ended, the principal emailed the parents of all students who took part in the tour, referring to the intoxication incident and stating “to date, the responsibilities or lack thereof of certain students have not been clearly established”. She requested that they arrange a meeting with her. She interviewed the students again in those meetings.

11.Another week later, the principal decided to convene a meeting of the disciplinary council of the school and gave notice of the meeting to X and her parents and members of the disciplinary council. The disciplinary council is a body that hears and gives recommendations on serious student transgressions. It is made up of students, teachers and management personnel, and parents (respectively chosen by their representing group). The notice stated that the facts that prompted the meeting were “Serious act against another student with aggravating factors. Suspicion of cannabis intoxication of another student.”

12.The disciplinary meeting was held on 21 March 2025, 2 weeks after the notice. It was attended by the principal (as chairperson), the school’s education counsellor (as secretary), a vice-principal, 3 teacher representatives, 2 student representatives and 2 parent representatives (all as members of the council). X and her parents attended. In addition the meeting heard evidence from 2 classmates of X and Y who testified that the two barely interacted with each other at school, X’s Form teacher regarding her academic performance, behaviour and absences from school, the 3 teachers who went on the tour, and Y’s parents (Y did not attend).

13.During the meeting, X and her parents were given an opportunity to and did present their submissions. The council members then asked questions including questions over the inconsistencies about the origin of the candy and what happened during the museum visit. X and her parents were given the opportunity to comment after each witness’ testimony, and were invited to make a final statement at the conclusion of the meeting. X disputed the testimonies of the tour teachers. Her parents said some witnesses lied.

14.In their private deliberations, the Council considered a range of disciplinary sanctions and in the end, by a majority of 9 to 1, decided that X should be expelled. X and her parents were brought back into the room to hear the decision. The principal declared that they had decided to permanently expel X given that she was suspected of cannabis intoxication of Y. The decision was also notified to the head of school. The head of school agreed with it and decided to expel X.

15.On 24 March, a formal notice of expulsion, signed by the head of school, was issued to X’s parents, stating that X was disciplined by “definitive exclusion of the establishment from 21/03/2025” and that “a permanent exclusion was decided for a serious act towards another pupil with aggravating factors and suspicion of cannabis intoxication of another pupil.”

The plaintiff’s case

16.The plaintiff’s case is that the school has breached the contract with him for the education of X at the school. In particular, he says there was a breach of express terms including the clause in the terms and conditions of the school that provided that the head of school had the power in his discretion to suspend, or in serious cases, expel a student from the school. The plaintiff says that this clause was breached because the school did not have sufficient evidence to make any finding that X was involved in the cannabis intoxication of Y. The school at most only had suspicion, and this was not enough for such a draconian sanction as permanent expulsion.

17.The plaintiff also says there were breaches of implied terms that in exercising his discretion to expel a pupil, the head of school must act fairly, take into account all relevant considerations and disregard all irrelevant considerations, act in accordance with the policies, guidelines, and circulars issued by the Education Bureau, and act in a way which reasonably and fairly balances the interests of the affected pupil, the school and/or other pupils where they conflict.

18.Among other allegations, the plaintiff complains that X and her parents were not afforded any genuine and reasonable opportunity to make representations and question the adverse account put to X during the disciplinary meeting, that the school failed to give adequate and genuine consideration to all relevant factors and was not open-minded in conducting its investigation, and that the school was predisposed against X.

The judge’s decision

19.In his decision on 17 July 2025, the judge proceeded on the basis that granting the interlocutory injunction sought would amount to disposing of the entire action and that the applicable threshold was therefore a high degree of assurance that the plaintiff’s case would be made out. The judge explained that in coming to the conclusion that X should be expelled, the disciplinary council “effectively came to a finding that [X] did knowingly share the cannabis candy with [Y]”. The judge said he was unable to say that there was a high degree of assurance that the council’s decision fell outside the range of reasonableness permitted, or that the plaintiff or X had no fair opportunity to present their case.

20.Even if the council only reached suspicion at the previous meeting and that was not adequate for the decision to expel X, the judge considered that the balance of convenience lay against granting the injunction. First, he thought that the school could hold another meeting of the disciplinary council and, in light of the evidence filed, he did not see any real chance that the council would come to a different decision. Secondly, there was evidence of a breakdown of trust and confidence between the plaintiff and the school. Thirdly, the school’s view that it would be in the interests of the school (the community, students, teachers and parents) not to reinstate X was not so unreasonable that the judge could substitute it with his own view. The judge referred, inter alia, to the evidence of stress and difficulties faced by the teachers in dealing with the presence of X.

The plaintiff’s intended appeal

21.In his application to the judge for leave to appeal, the plaintiff raised 5 intended grounds of appeal. Broadly described, they are as follows. First, the judge failed to consider (1) that X was subjected to severe cross-examination for no less than 2 hours in a hostile environment, (2) that the plaintiff and X were not afforded any opportunity to cross-examine Y, and (3) the breach of some of the implied terms. Second, the judge ought to have found that the decision to expel X fell outside the range of reasonableness. Third, the judge was wrong to find that the school would inevitably come to the same decision if all the substantive and procedural deficiencies were cured. Fourth, the judge was wrong to find there had been a breakdown of trust and confidence between the plaintiff and the school. Fifth, the plaintiff’s challenge was the first of its kind in Hong Kong and guidance from the Court of Appeal was warranted.

22.The judge did not consider any of these grounds to have sufficient prospect of success to warrant leave to appeal being given. He therefore refused to grant leave to appeal.

23.For the present application to this court, Mr Jiang, who did not appear below, has put forward 2 proposed grounds of appeal. The first is that the judge misdirected himself that the disciplinary council “effectively came to a finding” that X knowingly shared the cannabis candy with Y, when there was no evidence that the council so found. All that the council did was to expel X on the basis of a “suspicion” of cannabis intoxication. The second is that in deferring to the school’s view that it was not in the school’s interests to reinstate X, the judge failed to take into account that Y had decided to withdraw from the school, which was a crucial change of circumstances since the expulsion decision.

New proposed grounds of appeal

24.It can immediately be seen that the plaintiff no longer relied on any of the 5 grounds of appeal argued before the judge but 2 wholly new grounds not canvassed before the judge either at the substantive hearing or in the application for leave before him. This is irregular, runs contrary to the rationale for requiring leave to appeal to be sought first from the court below, and deprives this court of the benefit of the judge’s views and observations on such new grounds. As expressly stipulated in Practice Direction 4.1 at §11:

“ An applicant in a renewed application for leave should inform the Court whether the points argued in connection with the grounds of appeal had been canvassed at the substantive hearing and the application for leave to appeal in the court below. If not, the applicant must explain why it was not argued then and why it should now be entertained by the Court.”

In the absence of an acceptable explanation, such new grounds are not proper grounds of appeal and this court would generally, in accordance with well-established practice, not grant leave on them: Jenho Development Ltd v Pensonic Technology (HK) Ltd (HCMP 277/2013, 25 March 2013), at §§4-7; LehmanBrown Ltd v Union Trade Holdings Inc (HCMP 977/2015, 17 June 2015), §8; Tang Shek Kiu v Tang Lim Kwong (HCMP 2643/2015, 25 Nov 2015), §2; CCMJ v SSM (HCMP 2059/2015, 7 December 2015), §8; LWY v HM (HCMP 1497/2016, 10 August 2016), §10; Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104, §18; Tam v Wong [2019] HKCA 786, §27; S v C [2021] HKCA 1372, §5.

25.In the present case, no explanation was included in the papers; nor could Mr Jiang orally offer any valid explanation why the 2 new grounds were not canvassed before the judge. A change of legal representation is generally not a good enough reason. For this reason alone, the application for leave to appeal can be dismissed. Be that as it may, as an exception, we have considered the new proposed grounds which are narrowly focused, and set out below our reasons for rejecting them on the merits.

The proper approach

26.Section 14AA(4) of the High Court Ordinance (Cap 4) provides that leave to appeal shall not be granted unless the court is satisfied that (a) the appeal has a reasonable prospect of success, or (b) there is some other reason in the interests of justice why the appeal should be heard.

27.There is no dispute that the judge’s decision to refuse the interlocutory injunction sought was an exercise of discretion and that this court cannot interfere with it unless the established, special grounds are shown. We need only refer to the summary of the well-established principles set out by Kwan VP in New Sparkle Roll International Group Ltd v Sze Ching Lau [2024] HKCA 336 at §68 as follows (footnote omitted):

“ For an appeal against the granting of an interlocutory injunction, which is an exercise of discretion of the court, the well-established principles are that the appeal court must defer to the judge’s exercise of discretion and not interfere with it merely on the ground that it would have exercised the discretion differently. The appeal court will not disturb the judge’s exercise of discretion unless one or more of these grounds are established: the judge had misdirected himself with regard to the principles or the evidence in accordance with which his discretion had to be exercised; he had taken into account irrelevant matters; he failed to take into account relevant ones; his exercise of discretion is so plainly wrong that it is outside the generous ambit within which reasonable disagreement is possible. It is only if and after the appeal court has reached the conclusion that the judge’s exercise of discretion must be set aside for one or other of these reasons that it becomes entitled to exercise an original discretion of its own.”

Ground 1

28.The relevant passage in the oral reasons given by the judge in dismissing the application for injunction is as follows:

“ 4. The Defendant has considered the Disciplinary Council’s decision, which considered various witnesses’ testimonies or statements, allowed the Plaintiff and [X] to comment, and allowed the Plaintiff and [X] to make submissions. The Disciplinary Council also effectively came to a finding that [X] did knowingly share the cannabis candy with [Y], and considering [X’s] past record, alternatives and the school’s interests, concluded that [X] should be expelled. I am unable to say that there is a high degree of assurance that such decision fell outside the range of reasonableness. I am also unable to say that while the Disciplinary Council’s procedure was not as formal or strict as court procedures, there was no fair opportunity for the Plaintiff and [X] to present their case.

5. I am aware of the fact that in the expulsion notice, the accusation of sharing cannabis candy was described as suspicion, and there was no mention of [X’s] other past record. …”

29.The issue is whether there is any evidence to support the judge’s statement that the disciplinary council “effectively came to a finding” that X knowingly shared the cannabis candy with Y. The answer, as it seems to us, is that there clearly is.

30.The judge was plainly aware that the council did not express itself in terms of making a finding, hence the word “effectively”. In this case neither the disciplinary charge itself nor the critical facts on which it was based were admitted by X. The disciplinary council had to hear conflicting testimonies of fact. Several individuals involved attended and testified. X’s version was that she bought the candy from a grocery store in the foreign country without any reason to suspect it might contain cannabis. She also did not admit Y’s intoxication was caused by the candy. Members of the council asked questions of X including on the inconsistent accounts as to the origin of the candy and on what happened at the museum visit. There was no admission by X or direct proof from other eyewitnesses on how X obtained the candy and what she knew about it. The case against her was based on what lawyers call “circumstantial evidence”. Plainly the members each had to reach a view on the responsibility of X in order to decide upon any disciplinary sanction. This depended on whether they accepted X’s exculpatory account and, if not, what they inferred from the circumstantial evidence.

31.We do not have direct evidence of what each member said or thought during the council’s deliberations. The minutes of the meeting did not cover the deliberations except the final vote on the sanction. We know that 9 of the 10 members voted in favour of expulsion, and that even the principal who voted against permanent expulsion was, in her own words, “firmly convinced” that X was in possession of cannabis-laced candy and aware of its nature. She believed that X deliberately gave it to Y “as part of a reckless and deeply inappropriate attempt at humour, intending to observe her response to the drug”, though she was in favour of giving X a second chance. There was no mention in the minutes that the others only had a “suspicion”. The principal’s affirmation stated that in its deliberations, the council took into account the gravity of the cannabis intoxication incident, and that after intense discussions, all the other members took the view that the appropriate and necessary sanction was to expel X. The declaration by the principal at the end that the meeting had decided to expel X for “suspicion of cannabis poisoning” has to be seen in that context.

32.The proper inference in our view is that each of the other 9 members did not accept X’s version and was satisfied of her responsibility to a degree of conviction they each considered adequate for imposing the sanction they supported. Whether one calls this a “finding” is beside the point. The disciplinary council is not a court of law. It is not even a professional body’s disciplinary tribunal. It consists entirely of non-lawyers. What it decides has no legal effect outside of the immediate context of the school.

33.It is in fact the plaintiff’s pleaded case that the disciplinary meeting was conducted in a manner highly hostile towards X and unfairly skewed against X’s account and in favour of Y’s, and that the attendees had already made up their minds against X (see paragraph 35 of the Statement of Claim).

34.Mr Jiang placed much weight on the formal expulsion notice which stated that permanent exclusion was decided “for a serious act towards another pupil with aggravating factors and suspicion of cannabis intoxication of another pupil.” That notice was not drafted by a lawyer, and simply adopted the language of the prior notice of the disciplinary meeting. The head of school, who signed the expulsion notice, had the benefit of a report from the disciplinary council and came to the view that X’s conduct during the trip was the most serious of all the incidents reported. He also said that to his mind, Y presented a more credible version of events than X who provided inconsistent accounts during the school’s investigation which undermined her credibility. He concluded it was an instance of “covertly administering drugs to another student without consent” and, as such, an egregious violation far exceeding the boundaries set by relevant school rules and policies. Taking into account its proper context, it seems to us that what the expulsion notice connotes is that the school considered the “suspicion” sufficiently substantiated to justify the imposition of the sanction. The use of the word “suspicion” reflects perhaps a recognition that there was no absolute, definitive “proof” of guilt. In our view there is nothing wrong for the judge to characterise this as “effectively … a finding”. It was a conclusion after an inquiry into X’s responsibility for the incident. There was no misapprehension of the evidence by the judge. Whether or not the school’s conclusion is procedurally fair or based on adequate evidence or carries sufficient conviction to justify expulsion, is of course a separate matter, which is not an issue raised by the proposed grounds of appeal.

35.Further, the judge said in his oral reasons that even if there was a high degree of assurance the plaintiff’s claim would be established, having regard to the balance of convenience he still would not have granted an injunction. Since Ground 1 does not impugn the judge’s assessment in that regard, it does not avail the plaintiff overall in his attack on the decision.

36.For these reasons we do not think leave to appeal should be granted in respect of Ground 1.

Ground 2

37.Ground 2 complains that in deferring to the school’s view on what was in the best interests of the school (including the community, students, teachers and parents) in the assessment of the balance of convenience, the judge failed to take into account that Y had decided to withdraw from the school, which was a crucial change of circumstances since the expulsion decision. It is said that the judge should have dealt with compelling evidence which is contrary to his conclusion and that failure to do so may justify an appellate conclusion that the judge had failed to take that evidence into account. Mr Jiang urged this court to infer that the judge failed to take account of Y’s withdrawal.

38.We do not accept the plaintiff’s submissions. To start with, the evidence in question was highly unsatisfactory. It only emerged in the reply affirmation of the plaintiff dated 10 July 2025 (7 days before the hearing) and the relevant passage simply said “I understand that [X] has been told by some of her friends at [the school] that [Y] has very recently decided to withdraw from [the school] and to continue her education in [Country Z] instead”. This is multiple hearsay originating from unidentified sources. Strangely X’s own affidavit filed at the same time said nothing about this. Leaving aside the question of admissibility of such evidence under Order 41 rule 5(2) of the Rules of the High Court (Cap 4A),[1] it is not clear whether Y’s decision depended upon whether X would continue to be in the school after July 2025, what Y’s parents’ position was, and whether the “decision” was a firm one that Y’s family was prepared to communicate to the school thereby giving up her place for the next academic year.

39.In any event, the evidence was not only set out in the affirmation included in the papers before the judge but was also referred to in the plaintiff’s counsel’s written and oral submissions at the hearing. There was nothing in the reasons given by the judge that positively suggests he had forgotten the point or disregarded it. The only thing relied upon by Mr Jiang for his contention is that the judge did not expressly mention it. But the mere fact that certain matters relied upon by a party were not mentioned in the judgment does not mean that the judge had not taken them into consideration; nor is the judge required to address all the points made by counsel, whether legal or factual: see Harbour Front Ltd v Money Facts Ltd [2019] HKCA 916, §9; Allied Ever Holdings Ltd v Li Shu Chung [2021] HKCA 577, §7.4. It must also be remembered that it was a hearing attended with some urgency, so that the judge decided to give his judgment orally that afternoon, which cannot be expected to be as comprehensive as a reserved written judgment. In dealing with the balance of convenience and, in particular, the interests of the school, the judge specifically referred to the interests of “the community, students, teachers and parents”. He referred to the fact that there were students and parents showing support to X but there were also those who took the opposite stance. He referred to the stress and difficulties faced by the teachers in dealing with the continued presence of X. He referred to the school’s view based on “such sentiments”. But never once did the judge refer in this context to Y or to the prominent evidence on the school’s concern over the impact of X’s presence on Y. In our judgment, if an inference is to be drawn, it is rather that the judge was alert to the possibility that Y might in any event leave the school and thus, in assessing the balance of convenience, carefully avoided placing any reliance on any detriment to Y.

40.As mentioned above, the plaintiff’s failure to advance this ground in the application for leave to appeal before the judge has improperly deprived this court of the benefit of the judge’s own comments on it. Even so, we have no doubt that the judge did not fail to take into account the point in question.

41.For these reasons, we do not think Ground 2 has any reasonable prospect of success.

Conclusion

42.For the above reasons, we consider that neither of the 2 proposed grounds of appeal has a reasonable prospect of success; nor is it suggested that there is any other reason in the interests of justice why the appeal should be heard. Accordingly, we dismissed the application for leave to appeal with costs.

Mr Jiang Zixin, instructed by M/s Lee Law Firm, for the Plaintiff (Applicant)

Mr Jenkin Suen SC and Mr Charlie Liu, instructed by M/s King & Wood Mallesons, for the Defendant (Respondent)