Chan Chi Loi v. Cheng for and Others
Read the full judgment text of HCA 22136/1998 on BabelCite. This High Court CFI judgment was delivered on 17 June 2003.
1. The plaintiff, Chan Chi Loi ("Mr Chan"), was first employed as a temporary teacher in the 3rd defendant school ("the School") in 1982 as an Art and Design teacher. He was a graduate of the Chinese University in 1974 in the subject of Fine Arts. In the next year, in 1983, he was employed as a teacher on probation for two years in the School for the subjects of Art and Design and Chinese Language for the lower forms of Form 1 to Form 3.
Cited by 7 cases · Cites 1 case
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HCA22136/1998 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 22136 OF 1998 ---------------------
----------------------- Coram : Hon Yam J in Court Dates of Hearing : 25-28, 31 March, 1-3 and 8 April 2003 Date of Handing Down Judgment : 17 June 2003 ---------------------- J U D G M E N T ---------------------- Background 1.The plaintiff, Chan Chi Loi ("Mr Chan"), was first employed as a temporary teacher in the 3rd defendant school ("the School") in 1982 as an Art and Design teacher. He was a graduate of the Chinese University in 1974 in the subject of Fine Arts. In the next year, in 1983, he was employed as a teacher on probation for two years in the School for the subjects of Art and Design and Chinese Language for the lower forms of Form 1 to Form 3. 2.In the same year, a teacher, Mr Lam Kam Wah ("Mr Lam") was appointed to be in charge of all matters concerning arts and was further promoted to be the Art Panel Chairman in 1984. Mr Lam was a graduate of a two-year course in one of the three Teaching Institutes (now combined to form the Hong Kong Institute of Education). He was so appointed, according to the principal of the School, because he had the experience of teaching upper forms' Art subject, from Form 4 to Form 7 by 1983 and he had been the School Art subject teacher since 1979. 3.By September 1985, Mr Chan completed his probation period of two years and became a permanent teacher. His contract of employment with the School was renewed from year to year in each of the academic term, from September to August, until the end of August 1998 when the School decided not to renew his contract of employment. 4.In this action Mr Chan sued all members of the School Management Committee for 1997/1998 (the 1st defendants) and the School (the 3rd defendant) for breach of contract of employment on various grounds which included the allegation that those reasons given by the School for not renewing his contract of employment was not true. 5.Further, Mr Chan alleged that it was a term of the contract of employment that the Code of Aid for Secondary School ("the Code") as stipulated by the Education Department formed part of the contract of employment. In terminating his contract of employment or in deciding not to renew his contract of employment, the Code as stipulated by the Education Department was not followed. 6.Mr Chan also sued the 2nd defendant as the Principal of the School in tort for wrongfully and/or maliciously procured the Management Committee and the School to terminate his employment. 7.Mr Chan had always been complaining to the School and to the Education Department that it was improper and irregular to appoint Mr Lam as the Art Panel Chairman since he was only a graduate of a two-year course in the Institute of Education. He had not taken the third year advance course in the Institute nor had he obtained a university degree. The duel and rivalry between Mr Chan and Mr Lam had intensified in the ensuing years, cumulated in a libel action taken by Mr Chan against Mr Lam in late 1994 concerning an article written by Mr Lam in the Ming Pao Daily against Mr Chan. 8.The libel action was heard before me in November 1998 (i.e. just after Mr Chan's contract of employment was terminated) and the case was settled on the first day of the trial. By consent, the parties agreed that judgment should be given for Mr Chan, and Mr Lam agreed to apologise to Mr Chan and to pay $56,000 as damages and $300,000 odd as costs to Mr Chan. The contract of employment 9.The first question to decide is what were the terms and conditions of Mr Chan's contract of employment with the School. Invariably, the contract of employment was entered into in or about May before each academic year in September by a Letter of Offer from the School. In this letter, it was stipulated that the offer was made for the coming academic year in which the teacher must follow and obey the Code, the Education Ordinance and other regulations and directions of the Education Department, and the terms and conditions for teachers of the School. Mr Chan would then sign a Letter of Acceptance in which it was specifically stated that he would comply with the Code and the aforesaid other regulations and conditions. For the contract in question, that was dated 22 May 1997 (at p.303), the regulations for teachers of the School were attached to that Letter of Acceptance. 10.In Clause 10(b) of the said regulations of the School, it is stipulated that if a teacher's performance in his work is unsatisfactory and after an oral or written warning given by the School to the teacher, the School still considers that his work is unsatisfactory, his employment could be suspended by the School :
In Clause 11, it is stated that :
11.Two things should be noted from the written contract of employment with the School. In the first place, there was no stipulation that on the part of the School, it would also have to follow and obey the Code and the Education Ordinance and regulations. Secondly, there was no stipulation as to the period of time the School should serve a Notice of Termination on the teacher. However, each contract was for a term of one year or so (since it was stipulated explicitly that the contract would be effective on the date of signing of the agreement by the teacher until the end of August next year), thus if there was no Letter of Offer by the end of an academic year, would the contract of employment of the teacher be terminated on the expiry of the current contract of employment? (This is not a question to be decided in this case since there was a letter issued by the School dated 22 May 1998 informing Mr Chan that from the next academic year, in September 1998, the School does not intend to offer another contract of employment to him.) The Code of Aid for secondary school 12.I would like to consider the question of whether the Code forms part of the contract which the School must also observe and follow in the performance of the contract between the teacher and the School. So far the Code has only been considered in one case in 1999 by the court : Lau Chi Fai & Another v. Secretary for Justice & Another [1999] 2 HKLRD 494. The background of the Code was stated by the trial judge, Keith JA (sitting as an additional judge of the Court of First Instance). At p.496J-497B, he said :
13.Thus all aided schools have undertaken to the Government to accept and comply with the terms of the Code. If any school does not follow the Code, it will be in breach of the undertaking given by the school to the Director of Education representing the Government. 14.From the four corners of the aforesaid terms of employment of Mr Chan with the School, it was not stated that the Code would form part of the terms of employment for the School to follow. In other words, a teacher, including Mr Chan, would have to follow the Code in the performance of the contract whereas it was not stated that the School on the other hand would also have to follow the Code vis-á-vis the teacher. The teacher, including Mr Chan, is not a party to the undertaking between the Government and the School. On the other hand, the Government is not a party to the contract between the teacher and the School either. 15.Under the freedom of contract, of course any teacher can include the Code as the basis of the terms and conditions of employment which the school will also have to follow. But here, Mr Chan did not do so. It is a matter for the teacher and eventually for the School to consider whether a teacher's counteroffer to incorporate the Code as the basis of the terms and conditions between the two parties. It is also a matter for the Teacher's Union to advise its members to insist that the school should also follow the Code and other stipulations in the Education Ordinance and regulations. The situation is somewhat similar to the case of Lau Chi Fai. Keith JA said (at pp.501H-502A) as follows :
16.On the other hand, if the Director of Education desired that the Code should form part of the contract binding the school as well in order to safeguard the interests of the teachers, it should be included in the Code (which formed the undertaking given by the school to the Director) that the school should incorporate such a clause in the contract of employment to that effect. Afterall, all contracts of employment of teachers in an aided school should be approved by the Director. It was also stipulated by the contract of employment under Clause 1 that the School must obtain the approval of the Education Department in the employment of the employee. 17.On the contrary, the Code only specified that the contract of service or letter of employment of a teacher shall specify that such teacher shall act in accordance with the terms of the Education Ordinance and of subsidiary legislation made under that Ordinance, of this Code of Aid and of such instructions as the Director may from time to time issue regarding the conduct of aided schools. 18.It is appropriate to include the relevant sections 54 to 56 of the Code hereinbelow :
19.However, Mr Alexander Wong, counsel for Mr Chan, submitted that the procedure under the Code has to be implied into the contract of employment since it was necessary to have those terms incorporated to fill the gap there. The case relied on was Liverpool City Council v. Irwin and Another [1977] AC 239. In that case it was held that :
However, it is quite clear from the case of Liverpool that the conditions of tenancy only stated that the tenants accepted the tenancy on those conditions which related to obligations only on the part of the tenants and not on the part of the Council. Accordingly, the tenancy was silent as to those common parts which was retained in the landlord's occupation and the obligation to maintain those common parts which formed the means of access for the tenants. 20.Whereas in the contract of employment between the teacher and the School here, all the terms and conditions are self-contained and sufficient and there is no necessity to imply by implication to incorporate the Code into the contract on the part of the School. 21.Of course, this term could be incorporated into the contract of employment, which was not done in this case. The teacher could stipulate such a clause in the contract of employment and the Teachers' Union as I have said hereinbefore, could advise its members to insist on such a term to be so incorporated. This was not done in this case. The Education Department could also, in the Code, stipulate that the School should incorporate such a term in the contract of employment, but this was not done either. 22.In the end, I do not find that the Code would form a part of the contract which the School would also have to comply with. However, since the case has been considered with a lot of evidence on the ground that, if the Code was part of the terms and conditions of employment vis-à-vis the School, the next question is whether the Code has been complied with. I shall consider this issue in the next section. Compliance with the Code by the School 23.Mr Wong Po Wing, counsel for the School submitted that all employment of a teacher can be terminated by giving three months' notice in writing by the Management Committee of the School or by the teacher. This was stipulated under section 56(c) of the Code (supra). 24.Mr Alexander Wong submitted that section 56(c) should be read in conjunction with the other paragraphs under section 56. In particular, he submitted that the termination by three months' notice shall also be invoked after the procedure as stipulated in Appendices 17 and 18 are followed. However, I must confess that I cannot read section 56 in the way that was submitted by Mr Alexander Wong. 25.Section 56 were divided into paragraphs from (a) to (g), each paragraph is quite independent as follows :
(The contract of employment was for a period of one year for Mr Chan here. However, the Management Committee, as aforesaid informed Mr Chan on 22 May 1998, i.e. at least three months before the expiry of the contract on 31 August 1998 that it did not intend to propose renewal of the contract of service.)
26.Accordingly, I consider that even if the Code is applicable to the contract of employment between Mr Chan and the School, the School is entitled to give a three months' notice before the expiry of the period of service that it did not intend to propose renewal of the contract of service after 31 August 1998. This notice was given on 22 May 1998 and thus would constitute sufficient three months' notice pursuant either to paragraph (c) or (d). Appendix 17 27.Assuming that Appendix 17 is applicable to the case before me, the next question is whether the School has followed the procedure as laid down therein. 28.This issue occupied the main part of the trial concerning the evidence from the plaintiff and the defendant. I shall first of all set out Appendix 17 hereinbelow :
Mr Chan's performance since 1995 29.In respect of the dismissal or termination of appointment of a teacher, the first thing to consider is whether the work of the teacher concerned was unsatisfactory. The defendant in the defence alleged that Mr Chan's manner of teaching exhibited serious problems and gave rise to a serious concern of the School Management Committee since about summer 1995. Summer 1995 was the year when Mr Chan had instituted proceedings against Mr Lam for libel. In July 1995, Mr Lam had twice reported adversely about the Mr Chan's teaching and marking on Art subject and his incompetence in teaching the same subject and recommended that he should be removed from teaching Art subject. 30.In the new academic year, in September and October 1995, a lot of written complaints were received by the School from the students and their parents (most of them were anonymous) against Mr Chan. Mr Chan considered that this surge of written complaints from anonymous parents and students were related to the libel litigation and someone must be behind them. Between 18 September and 16 October 1995, there were about nine written complaints and only one complaint dated 30 September 1995 and received by the School on 13 October 1995 (pp.225-226) were signed by 10 parents. Mr Chan also contended that some of the matters were trivial and others were not true but made up by the students and parents in concert and that was why the complaints were very similar to each other. 31.At the outset of the trial, Mr Alexander Wong applied to exclude the evidence in the statements of the Principal that there were past incidents of unsatisfactory performance of Mr Chan between 1983 and 1995 as contained in paragraph 9(a)(i) to (xviii) of his witness statement. In reply Mr Wong Po Wing for the defence did not argue anything otherwise except to say that this was just background evidence. Since the defence should be bound by their pleadings, I decided that these pieces of evidence were not relevant as they were not within the ambit of the pleaded case of the defence since they only alleged unsatisfactory performance since summer 1995. Mr Wong Po Wing did not argue there and then or at any stage thereafter that what Mr Chan alleged to be the surge of complaints in September and October 1995 were not something entirely new at all since there were other previous incidents as recorded by the Principal in respect of the unsatisfactory performance of Mr Chan. 32.Be that as it may, even according to the intended evidence of the Principal, there was no such incident of surge of complaints from anonymous students and parents and one from parents signed with their names as aforesaid, I would consider that this surge of complaints was probably related to the litigation between Mr Chan and Mr Lam. However, when the two incidents were related I would still have to decide whether these complaints were true or not, bearing in mind that the complaints were made in the mist of the litigation between these two teachers. 33.In the same period the Education Department also received complaints from students and parents against Mr Chan. All the complaints can be categorized under two main points, namely : (a) a lack of management and discipline during the class, and (b) unsatisfactory teaching method. 34.As a result of the complaint made to the Education Department, the Chief Education Officer of Yuen Long District, Mr Cheng Chun Man, together with the Deputy Chief Education Officer, Mr Lui Hoi Ming, visited the School on 12 October 1995. This meeting was recorded by Mr Tiu, the Principal of the School (p.235). Basically, it was categorized under the aforesaid two categories. There was a short note at the end of the record that two teachers would assist Mr Chan in the area of management of the students and one to assist him in terms of teaching. 35.Consequently, on 17 October 1995, Mr Tiu arranged the aforesaid two Education Officers to meet students of Form 3F and Form 2E. They also met Mr Chan. On 17 October 1995, Mr Tiu also convened the meeting with the two Vice Principals, Madam Ng Lai Wah and Mr Ho Chi Wai, together with Mr Chan Kwok Wing who was the Panel Chairman of the Chinese subject. It was resolved at the meeting that an investigation should be made amongst the students in respect of the complaints. If the complaints were proved to be true, they should consider how to assist Mr Chan to improve in the aforesaid two areas besides warning Mr Chan. 36.On the next day, 18 October 1995, Mr Tiu saw Mr Chan in the morning. According to Mr Tiu's record, he had pointed out to him that there was problem with his management of his students in respect of discipline and also in respect of his teaching performance. An oral warning was given and if he could not improve in the future, punishment would be imposed. In that early afternoon, a teacher, Mr Lui Siu Lun, accompanied five female students from Form 3F, who lodged their complaints against Mr Chan. There were recorded 23 points of complaints and basically they were also under the aforesaid two categories. 37.In the morning of 19 October 1995, Mr Tiu met three students of Form 3F (p.247), and similar complaints against Mr Chan were made. In that early afternoon, there were again four students of Form 1D meeting Mr Tiu. They also lodged similar complaints against Mr Chan (p.244). Later, in the same afternoon, Mr Tiu met three other students of Form 3F, similar complaints were made by the students against Mr Chan (p.246). 38.On 23 October 1995, Mr Tiu also met four students of Form 2F (p.248). In the afternoon, Mr Tiu met four other students of Form 2E (p.249). 39.In all of the aforesaid meetings, the students made similar complaints against Mr Chan under the aforesaid two categories. 40.Consequently, on 25 October 1995, at 11:50 a.m., Mr Tiu orally warned Mr Chan again that he must improve his management of the students and his teaching for the students, otherwise he would receive a punishment. This oral warning was again recorded in the Principal's record (p.250). All the complaints were recorded and summarized in the Principal's record after investigation (pp.251-252) and was dated 25 October 1995. 41.It was not coincidental that on the same day Mr Tiu signed a witness statement as a witness for Mr Lam in the libel litigation. At the end of his statement, he said :
The statement of the Principal, Mr Tiu, ended by saying that :
42.This five-page statement of Mr Tiu also stated why Mr Lam was appointed to be in charge of all matters concerning arts in March 1983 and promoted to be the Art Panel Chairman in 1984. 43.The striking coincident of the libel litigation, when Mr Lam was preparing his defence together the surge of complaints against Mr Chan in September and October 1995, were probably related. However, I would still have to decide whether the School, including the Principal and some teachers, were making up a case against Mr Chan in anticipation of the libel litigation in favour of Mr Lam, or just gathering evidence of a pre-existing state of affairs and circumstances for which Mr Chan himself should also be responsible. In assessing the evidence before me, I have warned myself that all these complaints made by students and parents and the investigation of the School were against the background of the libel litigation. 44.Having heard the evidence from the witnesses, I would prefer the evidence of Mr Tiu, the Principal, than Mr Chan in this respect. The investigation of Mr Tiu was quite thorough and he had met Mr Chan on a few occasions and pointed out to him the subject matter of the complaints, urging him to improve his performance. The attitude of Mr Chan, on the other hand, was quite evasive in this respect. For some of the complaints, he just considered them to be trivial. He denied some of the other complaints against him and said he could not even remember whether a warning had been given by the Principal during the meeting with him. I make this decision in spite of the fact that Mr Tiu had apparently decided that Mr Lam was on the right side in the libel litigation, and agreed to be one of his witnesses and also, probably, he had passed on the letters of complaints made by Mr Chan against Mr Lam to him which became part of Mr Lam's defence in the libel litigation. 45.The Principal's record of the information he gathered from the students of various classes was a true and correct record. In fact, on 8 November 1995, Mr Tiu recorded that at 3:12 p.m., he noticed from his Principal's office that the class, Form 2F, at Room 116C was extremely noisy. He observed from the outside of the classroom that Mr Chan was teaching inside. However, the order of the classroom was extremely chaotic in that it was very noisy, some students were standing up and some were actually walking here and there without paying any regards to Mr Chan's teaching. Mr Chan, however, just continued to teach in class. 46.A similar incident happened on 23 April 1996 in the same academic year for the same class of Form 2F. Here, after school, Mr Chan met the Principal and said, inter alia, that this kind of situation had been very frequent. The Principal suggested to Mr Chan that he should reflect and review his method of teaching and disciplining his students. He further suggested that Mr Chan should take certain courses in discipline counselling in order to substantiate himself in this respect, either in the Institute of Education or the university for some advance courses. 47.On 2 May 1996, Mr Tiu had inspected the school handbooks for the class of Form 3F of which Mr Chan was the form master. The Principal discovered that a number of irregularities like absence of photographs, no entries of homework, no signatures of parents and/or responsible teachers. The Principal met Mr Chan and discussed with him concerning disciplining students and management of class. Again, it was recorded that he had requested Mr Chan to improve in his teaching work, disciplining and management of the students. A warning was administered in that if there was no improvement, the School would consider measure of punishment including terminating his employment or dismissing him. 48.All in all, I find that the Principal's evidence is probably true in respect of the number of the complaints and the contents of the complaints of the students and parents against Mr Chan. At the same time, in the second half of the academic year, Mr Chan had made certain attack against Mr Lam. By a letter dated 12 February 1996, Mr Chan wrote to the Principal and complained about four incidents in January and February concerning the Art class taught by Mr Lam. 49.Further, after Mr Chan had signed the contract of employment for the year 1996-1997, by a letter dated 18 May 1996, he wrote to the Principal again and made three items of request as follows :
50.All in all, the duel between Mr Chan and Mr Lam had not subsided but intensified after the commencement of the litigation between them. For all these years, Mr Chan was still insistent that Mr Lam should be removed from the Art Panel. My impression from the evidence was that Mr Chan was so adamant in his complaint to remove Mr Lam from the Art Panel, and he himself wanted to be the Art Panel. However, according to the investigation of the School, the School had not found any misconduct of Mr Lam, so there was no reason to dismiss or to discharge Mr Lam as the Art Panel. However, Mr Chan was so insistent in his complaint that he devoted a lot of time and energy in this respect, and also in the litigation between him and Mr Lam. He took less regard to the complaints of the parents and students against him and the warning administered by the Principal in respect of the chaotic situation of his class management. I would be very surprised if the School would appoint him to be the Art Panel in lieu of Mr Lam in the circumstances. 51.I consider that it is a dereliction of duty if a teacher paid no regards to the chaotic situation of the class or otherwise failed to manage the class' discipline whilst administering a lesson to the class when the students were talking, making a lot of noises, standing and walking here and there freely without restriction. This, I am afraid, happened quite frequently in Mr Chan's classes as revealed in the papers before me. I have to go into detail of the ensuing years leading to the Management Committee's decision not to renew Mr Chan's contract of employment for the year 1998/1999. The two pre-termination academic years 1996-1998 52.The academic year for 1996/1997 began with an incident that Mr Chan did not attend the first quarterly teachers' meeting on 24 September 1996. According to the minutes, it was recorded that Mr Chan did not attend the meeting without permission. 53.In a belated explanation by way of letter dated 13 January 1997, which was more than three months thereafter, Mr Chan explained that the notice of the meeting was just posted on the notice board of the teachers' room and he did not know about the teachers' meeting after school until that day. I find that to be a lame excuse, Mr Chan explained in evidence that he had an appointment with his solicitors in respect of his litigation at about 4:30 p.m. in Central that day. There was no explanation as to why the scheduled meeting with solicitors was so important that that could not be rescheduled to another date or time. The decision to miss the first teachers' meeting of the academic year was evidenced from what Mr Chan himself wrote in the letter. He said that every year, in respect of the discipline and school works, the matters were similar and he was familiar with those matters. If there was anything new, he could ask the Discipline Master, Mr Kwan, for the same. My impression is that he considered the teachers' meeting to be less important than his personal matter. 54.There were three further incidents of excessive noise. During the class of Mr Chan on 16 January 1997, in respect of Form 2E (p.292) and Form 3E (p.293) whereby the whole class was detained after school the next day as a punishment. In both incidents, the prefects of the classes were asked to sign on the Principal's records as to what had happened. 55.Mr Alexander Wong submitted that it might not be appropriate to involve the students when such thing happened. In both of these two records, the prefects were asked to record down what had happened. It might not be appropriate for the prefects to be involved in the oral warning administered by the Principal to Mr Chan as it might lead to certain degree of disrespect of the students vis-à-vis the teacher involved. However, I find the records are true and correct. 56.Further, on 21 March 1997, there was another similar incident in respect of class Form 2F, about four minutes before the end of the school at 3:40 p.m. (p.297). 57.The next record of the Principal was a meeting of the Principal and the Supervisor of the School, Mr Cheng For, the 1st named 1st defendants, on 19 May 1997 before the end of that academic year. The Principal reported to the Supervisor that Mr Chan had exhibited problem in the management and discipline of the students and that condition had worsened since the beginning of the last year, i.e. in 1996. Five items of complaint were mentioned to the Supervisor. In respect of Item 2, it is now agreed that there was a mistake for the date which only concerned Mr Lam and not Mr Chan. Supervisor Cheng considered that Mr Chan should be given a chance and requested the Principal to observe Mr Chan's condition further in order that his condition might be improved. There and then the Supervisor's attitude was quite lenient. Accordingly, on 22 May 1997, Mr Chan was offered to renew his contract of employment for the next academic year of 1997/1998, which is the contract of service in question in this case. 58.On the same day, Mr Chan wrote a long, four-page letter to the Principal in respect of three things. First, he reiterated his request to dismiss Mr Lam as the Art Panel. Secondly, he requested again that the School should reinstate the Art subject for the upper forms. Thirdly, he requested to be relieved of his duty as a form master as he had been a form master in the past 10 odd years with the School and the fact that he had been appointed to be a form master for the worst classes in the past. 59.None of Mr Chan's requests had been acceded to by the School or the Principal. The first two requests were explained by the Principal hereinbefore. In respect of the third request, Principal Tiu explained that it would not be a fair share of duties if Mr Chan would not be assigned to take up the post of a form master. Other teachers who were not form masters had other duties. The Principal did not consider that it was appropriate to appoint Mr Chan for other duties. Thus, he was again appointed as a form master of Form 3E. Although I consider that the Principal could have relieved Mr Chan of his duty as a form master simply on the ground that he had been a form master for all the past 15 years or so of his service with the School, I do not find that it is unreasonable or wrongful for the Principal to have appointed him as a form master. It is true that if he was relieved of the duty of a form master he would have more spare time to concentrate on his teaching works. However, it cannot be said that his lack of management skill in disciplining the students or in maintaining the class order was due to the fact that he was overloaded with the duty of being a form master. The Principal's decision not to relieve Mr Chan's duty as a form master could not be said to be the cause for the chaotic class situation as observed by the Principal in the following months of the academic year. 60.The academic year of 1997/1998 commenced with a number of observations on different occasions by the Principal as to the chaotic state of the classes handled by Mr Chan. There were seven occasions in September, October, November and December which were recorded by the Principal in respect of the classes handled by Mr Chan which was noisy and chaotic. His management of the class had not been improved at all. In fact, on the last occasion, on 11 December 1997, Form 2E was punished by being detained after school on the next day. However, at 4:10 p.m., the Principal observed that Mr Chan was not even in the classroom to supervise the detention of the class between 3:50 p.m. and 4:30 p.m. 61.Chronologically, there was one side issue happened in December 1997. By a letter dated 1 December 1997, the School was informed by the Education Department that the School was one of the 100 schools granted by the Department to use English as the Medium of Instruction (commonly called EMI) for teaching and learning in school. Upon learning that, Mr Chan wrote to the Principal on 3 December 1997 to request the School to apply for exemption from the Education Department to use Chinese for the Art subject in the lower forms. The Principal met Mr Chan together with the Vice Principal, Mr Ho Chi Wai, who made the record of the meeting. According to Mr Tiu and Mr Ho, whose evidence I also accept, Mr Chan was quite agitated during the meeting and he even banged on the table whilst talking to the Principal. He did not accept the Principal's explanation and direction. According to the Principal, Mr Chan did not even listen to his suggestion. 62.It is fair to point out that Mr Tiu explained to the court that from the angle of the students of the lower forms, they were more receptive to the Chinese language as they were limited by their vocabulary and standard of English. However, he admitted that due to the vanity of some parents, if the School allowed Mr Chan to use Chinese as the teaching medium in the Art subject lessons for the lower forms, the School would face every criticism from some of the parents. Mr Tiu said he himself was under tremendous pressure of the Management Committee and the School policy in order to satisfy the parents. 63.However, it is quite besides the point on the issue of whether Mr Chan was right to insist on using Chinese as the medium of instruction or Mr Tiu was right in not acceding to Mr Chan's request for applying to the Department for exemption. The main thing raised by the Principal was Mr Chan's behaviour was quite unbecoming by banging on the table whilst he was making his points ferociously against the Principal. Mr Chan fell short of the requirements in terms of behaviour of a teacher. 64.A few days later, on 15 December 1997, Mr Tiu reported to Supervisor Cheng in respect of Mr Chan's problem of management of students. He reported that since their last meeting on 19 May 1997, Mr Chan still had a problem of controlling the class. He mentioned three incidents on 22 October 1997, 5 November 1997 and 11 December 1997 when the students were out of control in Mr Chan's classes. Further, Mr Chan had not ensured that his class, i.e. Form 3E, to complete the decoration for the notice board even by then. On the same day, Mr Tiu obtained a written complaint of various students in different classes taught by Mr Chan concerning his misbehaviour and mismanagement during the class (pp.372-377). 65.On the same day, Mr Chan wrote to the Principal again and requested for allowing him to use Chinese to teach the lower form Art subject. He ended his letter by saying that the School could not use the excuse of EMI teaching in respect of the Art subjects in order to affect his chance and right to be the Art Panel of the School. The issue of "Written Warning" 66.On 16 December 1997, the Supervisor convened the meeting with Mr Chan together with the Principal, Mr Tiu and the two Vice Principals, Mr Ho and Madam Ng. The minutes of the meeting were taken by Mr Ho. After the minutes of the meeting was read and signed by the aforesaid four attendants, a copy of the same was served on Mr Chan on 19 December 1997. Two questions arose in respect of the meeting and the minutes thereof. First, was the minutes true and correct and, in particular, was a warning given by Supervisor Cheng to Mr Chan to the effect that he should improve in respect of his teaching, management and discipline of the students and his own words and deeds, otherwise he would have to leave his job and the School? Secondly, whether this warning being recorded in the minutes and the same was served on Mr Chan would constitute a written warning for the purpose of Appendix 17 of the Code? 67.In respect of the first question, Mr Chan, by a letter dated 27 December 1997, wrote to the Principal and Mr Chan stated his version of what had happened at the said meeting. However, Mr Chan said in his evidence that he received a verbal warning from Mr Tiu and not from Supervisor Cheng. A careful comparison of the two records revealed that they were substantially the same in respect of the viewpoint expressed by each person. Mr Chan's record was more exculpatory. In Mr Ho's record, it was stated that the warning was given by Supervisor Cheng (p.382). All four attendants, including the other two Vice Principals, gave evidence and said that the warning was actually given by Supervisor Cheng. The meeting actually, according to Mr Ho's record, was ended with Supervisor Cheng's warning again in respect of the EMI issue. Mr Chan was warned that if he did not follow the policy of the School, he would certainly be punished and dismissed from his job. 68.I must say that I am quite impressed by the four witnesses from the School, i.e. the Supervisor, the Principal, Vice Principals Ho and Ng. On the contrary, I find Mr Chan to be quite evasive in answering questions. He frequently did not answer the questions asked; sometimes he did not even listen to the questions. He just said what he wanted to say. He was also quite agitated especially on the first day of his giving evidence under cross-examination. He apologized on the second day but he would still get excited easily on sensitive issues. I do not find his evidence reliable at all. 69.Having decided that the warning was given twice at the meeting by Supervisor Cheng, the next question is whether the minutes served on Mr Chan would constitute a written warning. Actually, by a letter dated 19 December 1997, i.e. the date when Mr Chan was served with the written minutes, Supervisor Cheng wrote to the District Education officers and informed them that written warnings were given to Mr Chan :
A copy of the report of written warnings given to Mr Chan was enclosed therewith, i.e. the record of the meeting on 16 December 1997. 70.In other words, it is quite clear that there and then the School had already adopted the record of the meeting wherein oral warnings were given, as the written warning. Mr Alexander Wong submitted that an oral warning albeit reduced into writing and served on Mr Chan could not constitute a written warning. Mr Wong submitted that it could not be the same verbal warnings which were somehow metamorphosed or mutated into a written one when it was post-recorded into a minute. 71.On the contrary, the District Education Officer, Mr Cheng Chun Man, considered that the record would constitute a written warning albeit that it was reduced from an oral warning given in a meeting. Both Principal Tiu and Supervisor Cheng had the same view. Of course it would be better in the service of the record of the meeting, it was followed by a covering letter stating the warning again in the letter as a more proper written warning. That was not done. 72.The intention of a written warning, as far as I can see it, is to give the person so warned to have a tangible document within which there is the warning given. Mr Alexander Wong urged me in his submissions that I should consider all the circumstances of the case. Here, I consider that the written record of the meeting would constitute a written warning since the warning was stated in writing within the record and it is a tangible document. Even Mr Chan himself reiterated the warning in his letter (p.400) that if he could not improve in his control of the discipline and order of the class, and if the same mistake happened again, the School would dismiss him by terminating his contract of service with the School. There is no question that he had not been warned clearly albeit he wrongfully insisted that it was the Principal who had warned him. All in all, I consider that in the circumstances of this case the record of the meeting could be said to be a written warning given by the School to Mr Chan. 73.Further, I also consider that the allegations of the School against Mr Chan as recorded in the record of the meeting were all true and correct. I accept the evidence of the Principal in this respect. There is no reason why Principal Tiu would have to frame Mr Chan. Overwhelming evidence from various witnesses to testify to the effect that Mr Chan's classes sometimes were very chaotic. I do not consider a teacher was doing his duty when students were talking during lesson, standing up and walking freely here and there without any regard to the teaching of the teacher. This happened after the warning was given as observed by two inspectors from the Education Department and the observation of two teachers of the School as follows. Mr Chan's performance after the warning 74.After the aforesaid warning was given, Principal Tiu met Supervisor Cheng again on 2 January 1998. They had decided to request the inspectorate of the Education Department to come and observe the lessons of Mr Chan. They would also assign their own experienced teachers to observe his classes. According to the record, they did so because they would like to assist, counsel or advise Mr Chan in terms of his teaching and management of students, so that Mr Chan could improve on the same (p.411). 75.However, the class of Mr Chan did not seem to have improved after the warning. On 15 January 1998, Principal Tiu observed that in Form 3E, whilst Mr Chan was lecturing on the Chinese Language, some students were playing chess, some students were sleeping whilst lots of others were making noise. Mr Chan did not do anything to deal with them at all. He was summoned by Mr Tiu to outside the classroom and he was told to manage his class properly. 76.Consequently, the Education Department was requested to assign two inspectors to come to the School and observe the lessons of Mr Chan in terms of the Art and Chinese Language subjects. Two inspectors from the Education Department came to observe the lessons of Mr Chan. Madam Chung Siu Sun, being the Principal Inspector of the Chinese Language subject, came on 17 February 1998. She observed Form 2C when Mr Chan was having composition class for two lessons in a row. I am particularly impressed with the evidence from Madam Chung. She did not exaggerate anything at all and just gave evidence according to the report she had made shortly afterwards, on 27 February 1998. She said that the 15 minutes' introduction by Mr Chan was not impressive. The students were not motivated by his introduction. In particular, she observed a very chaotic order during the class. The students did not respect the teacher and some of them intentionally broke the order of the class. Some of the students just said whatever things came to their mind and some were even in a mocking way. Some banged on the table and some stood up for no reason. They raised their voice when they talked to each other and some of them even made indecent or foul signs behind the back of the teacher. 77.Madam Chung found that Mr Chan was easily excitable and flushed when he was shouting to the students, he could not even control himself but the students paid no regard to him. Further, in respect of the inspection of the dictation and other exercises of the students, Madam Chung found that not all of them handed in their works - there were less than 20 exercise books for each class. Dictation of three times so far for the academic year was less than the requirement of the Education Department. Although it has been pointed out from the plaintiff's side that Mr Chan's dictation for every year was always between three to five times, this is no excuse for being below the standard. This is only evidence that he was always below standard when it came to dictation work. In respect of the correction of Mr Chan, Madam Chung found that he was not meticulous enough. Corrections and comments were quite short. Some of the mistakes made by the students like wrong words and wrong expression were not even spotted out by Mr Chan. She did not understand why the relationship between the teacher and the students had deteriorated to such an extent, so it must be improved by proper understanding of the situation in order to establish a trusting relationship again. The evidence of Madam Chung supported the allegations of the defence and the evidence of the Principal, Vice Principals and other teachers. It proved that the other teaching staff of the School did not make out their story at all. 78.The observation of another inspector, Mr Lee Sau Kee, on the next day, 18 February 1998, in respect of the Art and Design subject taught by Mr Chan was of the similar result. According to Mr Lee, Mr Chan did not stop those students who were talking at the back of the class and he took no concern about pupils who had completed their assigned classwork but just let them chat and laugh. Mr Lee considered that Mr Chan's classroom management was poor. His teaching objectives of the lesson were not achieved and the outcome of the pupils' artwork was of low quality. Mr Lee concluded that on the whole, Mr Chan's performance in the inspected lesson was not satisfactory. His planning and organization of the inspected lesson were poor. His teaching strategy and skills were not effective and thus the inspected lesson was dull and pupils' learning was not active. His subject knowledge was only fair (pp.1629-1630). 79.The inspection by in-school teachers was of similar effect. Mr Chan Kwok Wing, the Chinese Language Panel Chairman, inspected Class 2E on 23 February 1998. The class was more quiet but it was Mr Chan Kwok Wing's observation that they were not concentrating on the lesson. He did not notice any students taking down any notes. Some of them even clutched on the table and some of them did not have their textbook in front of them and the teacher did not even notice it. When the teacher asked for the homework to be handed in, he just gave an oral instruction without action. When the exercise books were handed in, he did not count to see whether everyone had handed in their homework. Mr Chan explained in his evidence that he did not usually immediately count the number of exercise books handed in as he said it would be a waste of time. I cannot actually understand why a teacher could be that lax to check whether his instructions of homework had been complied with by every single student. My impression was he did not even care whether they had done their homework or not. He did not care whether they had brought their textbook to school when he was lecturing. No wonder Mr Chan Kwok Wing said the teacher seldom had eye-contact with the students and he could not monitor the progress of the students whilst he was lecturing them. 80.The Vice Principal, Madam Ng Lai Wah (who later on became the Principal of the School after the retirement of Principal Tiu) inspected Mr Chan's Art lesson in Class 2B on 12 March 1998. It was her report (p.467) that Mr Chan did not effectively control and manage the classroom order. Students were talking freely in class, playing around, leaving their seats and disturbing other students. Madam Ng said in evidence that there was a difference of leaving the seats in order to achieve what they were told in Art class and just playing around by moving about in class. What she observed was the latter activities which Mr Chan did not control. Madam Ng discussed with Mr Chan as to how he should improve his classes. 81.A few days later, on 15 March 1998, Mr Chan devoted his time to writing to the Director of Education complaining that the Department did not investigate his earlier complaint in respect of the minutes of the meeting on 16 December 1997. Later, on 27 March 1998, he wrote again to the Director and said that he was informed by Madam Ng in the afternoon of 25 March 1998 that the School would be writing to the Department very soon in order to dismiss his contract of employment, i.e. not to renew his contract in the next academic year. Madam Ng categorically denied that she had ever informed Mr Chan. Besides, there was no decision by the School to dismiss Mr Chan at that stage. I must say that I prefer the evidence of Madam Ng who had given evidence in a straightforward manner before me. She told the court that she would not say such a thing to Mr Chan at all. I do not know whether it was a misunderstanding of Mr Chan when Madam Ng was discussing with him about his mismanagement of the class after Madam Ng's observation on 12 March 1998. In any event, I find what Mr Chan alleged in the 2nd paragraph of his letter dated 27 March 1998 was not true. 82.The evidence that Mr Chan had not improved in his management of the class and teaching standard was overwhelming and compelling after the warning was given to him on 16 December 1997. As aforesaid, the Principal observed that his students were playing chess in class and others were sleeping whilst some were making noise (p.434). On 21 January 1998, the Principal observed that he sent two students of Class 2E, as a kind of punishment, to stand outside a room on another floor (the second floor), Room 209, which was the teachers' room. According to the students, they were asked to stand there from 9:00 a.m. but were not told until when. Thus at 9:30 a.m. when the bell rang for the next lesson, they went back to their classroom at Room 116B (p.435). 83.After the Principal noticed these two students were punished by Mr Chan by asking them to stand outside the teachers' room on the second floor without supervision, he asked Vice Principal Ho to accompany him to meet Mr Chan and told him not to do so. Mr Chan blamed it on the Discipline Master, Mr Kwan Chung Hin, and said that it was Mr Kwan's idea. I agree with the Principal that this was not a good idea and I find Mr Chan's way of punishing the students was not a regular one. The students who were punished were not supervised at all. According to the records, which I find to be true, Mr Chan even suggested that the prefect should accompany the students under punishment next time if such a thing happened again. This was again inappropriate as the Principal had pointed out that the parents of those students (i.e. those who were not punished but had to accompany the other students who were punished) would certainly complain if their children could not attend a lesson. 84.After the aforesaid inspection of Mr Chan's classes by different inspectors and in-schools teachers, the classes of Mr Chan did not show any improvement at all. In April, May and June, there were divers occasions on which the Principal found the classes of Mr Chan were still in a chaotic situation. It was noisy, students were talking and moving about freely whilst Mr Chan just continued to deliver his lessons (e.g. p.491 for 17 April 1998). 85.The Discipline Master, Mr Kwan Chung Hin, gave evidence and said that other classes were not like that. Mr Chan always had to ask for his assistance to control his classes. There were a number of occasions when Mr Chan would have to ask the prefect to go to Mr Kwan for assistance when the class was out of his control. Other teachers had the same observation when they passed by Mr Chan's classroom. 86.On 23 February 1998, after the Art and Design class of Form 2E, Mr Chan just instructed the students to clear up, however, he did not supervise the students in the clearing-up. Consequently, in that last class before the end of the school that day, a lot of rubbish like newspapers was all over the place without clearance. Vice Principal Ho had done the survey. The evidence was so compelling that Mr Chan did not see to it that his instructions were followed by the students and when they were not followed, he did not take any action. The students did not pay any regard to his instructions at all as this would not attract any consequence. The evidence was Mr Chan did not care much about the discipline of his students. 87.In April, the Principal inspected the students' handbooks of Mr Chan's class of Form 3E. It was discovered that many of the students had not completed the handbooks or otherwise did not enter their homework and notices properly into the handbooks. Signatures of parents were also lacking. A list of 26 students with incomplete handbooks was made out and the same was re-checked by two other teachers, Mr Kwan and Mr Lau (pp.505-508). 88.Photographs taken of the classroom of Class 3E showed that by March, or even mid-April, the notice board of Class 3E had not even been completed. In April, Form 3E moved to the upper floor to the classroom of Form 5B when the Form 5 students were taking their public exam. The notice board of Form 5B was still there by the end of April. Although it can be said that within a short time Form 3E could not redecorate the notice board, it certainly revealed that Mr Chan was not zealous enough in supervising his students to put up a new notice board for their own class. The tables in Class 5B also had a number of stickers and markings left behind by the Form 5 students. Although it cannot be said that the Form 3E students should be responsible for the same, yet it also showed that Mr Chan was not vigilant enough to ensure that such defaced tables should be reported to the School right away. He just did not care about these things concerning the conditions of those tables when they moved into another classroom. 89.I must conclude here that Mr Chan did not care much about the order of his classes or his method of teaching. Instead he cared much more about whether he would be promoted to be the Art Panel. The dismissal 90.Eventually, the Principal had no other alternative but to report the condition of Mr Chan to the Supervisor, Mr Cheng. That was 1 May 1998. After the report of the Principal to the Supervisor, the Management Committee met on 8 May 1998. The two Vice Principals were also present. Eventually, the Management Committee unanimously resolved that the School would not continue to employ Mr Chan and he should be notified in writing that it would take effect on 1 September 1998. In effect, that was a decision not to renew his contract of employment. 91.By a letter dated 22 May 1998, Mr Chan was informed by the School, signed by the Supervisor, Mr Cheng, that for the next academic year of 1998/1999, the School would not employ him as a teacher and his contract of service shall end by 31 August 1998. Ten items of problems were listed in that letter. Although one or two items could be explained by Mr Chan like the failure to enter exam results into the computer by the deadline because of the shortage of time and the tables of Form 3E were defaced and stuck with a lot of stickers which were actually left behind by Form 5B, other items were more serious and they were made out. In particular, the classes of Mr Chan were very noisy and he failed to handle students whilst they were making noise and talking freely in class, some of them were moving about without any restriction. 92.All and all, I find that the decision of the School not to renew Mr Chan's contract of service was based on good reasons. The evidence against Mr Chan was so overwhelming and compelling. In the end, I also find that procedures as laid down in Appendix 17 of the Code were also followed. 93.Further, I do not find that the Principal was in any way malicious or wrongful in reporting what he observed in respect of Mr Chan to the Supervisor or the Management Committee. The action in tort against the Principal was not supported by any evidence at all. Conclusion 94.In conclusion, I find :
95.By reason of the aforesaid matters, the action of Mr Chan against all members of the Management Committee, the Principal and the School must be dismissed with an order nisi on costs to the defendants, to be taxed if not agreed.
Representation: Mr Alexander Wong, instructed by Messrs W.I. Cheung & Co., for the Plaintiff Mr Wong Po Wing, instructed by Messrs Raymond T.M. Lau & Co., for the 1st, 2nd and 3rd Defendants Remarks: Appeal by the Plaintiff to Court of Appeal. Appeal dismissed. Please refer to the appeal judgment of CACV243/2003. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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