Ng Chor Kiu v. Director of Education

HCAL000028/1998

HCAL 28/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST NO. 28 OF 1998

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Coram : Hon Sears, J. in Court

Date of hearing : 12 November 1998

Date of judgment : 12 November 1998

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J U D G M E N T

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1. This is an application for judicial review for which I gave leave，because I considered that it merited further consideration.

2. The applicant is an experienced teacher and she was appointed Principal of the Chiu Sheung School in September 1992. At that time, it was called an A.M. school, it is the standard practice in a number of schools in Hong Kong to have sessions, one in the morning and one in the afternoon. She was the A.M. principal.

3. The school decided, for reason which is not necessary to go into, to change to an all-day school. Unfortunately, relations between the Principal and the Management Committee of the School deteriorated. The situation culminated when the Management Committee notified the teacher, the applicant, on 29 July 1997 that she would not have her contract renewed. This was a fixed-term contract employing her at the school and it ran out on 31 August of that year.

4. The Management Committee, prior to the expiry of her contract, found a person, a Mr So, whom they considered to be suitable to take over the role as principal, and they wished to have him as principal of the School when the new term started, so his new contract would start on 1 September 1997.

5. This lady was very upset. She thought that she was still the principal even though she did not have a contract. She made a complaint to the Ombudsman. He found, as he said, mal-administration. I confess I do not understand it, it is not part of the decision I make but it does not appear to me to be mal-administration, it was a question of a dispute between the Management Committee Group of private individuals, albeit running the School under the Ordinance, and a teacher. But I leave that aside.

6. Mr Philip Dykes, S.C., makes submissions and says the approval of the Director of Education of the second principal, Mr So, is unlawful, and that being the case, she is still the principal. It is a somewhat startling submission that he made when she is not employed there. It stems from some words which are found in the Education Ordinance, Cap. 279. I do not repeat them all, but within one month after registration of a school, the management committee will recommend for the approval of the Director a teacher of the school to be the principal. The same words "teacher of the school" are used in s.57 and obviously, as a matter of standard construction, the words must mean the same in this part of the Ordinance.

7. The submission that is being made is that it means someone who is currently a teacher at the school, it does not actually say "a teacher at the school" to be the principal, it says "a teacher of the school" to be the principal. Had it used the words "teacher at the school", I might have been somewhat attracted to this submission, but what the words mean, in my judgment, "teacher of the school" is a teacher who will be employed at the school by the management committee pursuant to a contract of employment.

8. Otherwise, in my judgment, if Mr Dykes' construction is right, it would prevent outsiders ever being appointed as principals of schools in Hong Kong, which means not only the primary schools which this is, but also secondary schools, nursery schools and kindergarten schools. The school management committee would be completely prevented from finding someone who is outside the school. That is an important factor because although schools may wish to have continuity in a school by appointing someone from within its ranks, it must be remembered that education is just not about teachers, education is about children. It is the interests of children that the Education Ordinance is aimed at. The interests of children demand that they must have suitable people to educate them and it may well be that within a school, the existing staff are not considered suitable to be a principal. Is it then suggested that the children must suffer, and must have someone thrust upon them who is not satisfactory? In my judgment, what it means is that the management committee has a duty to ensure that the person appointed as a principal of any school must be one who will carry out his or her duties in a satisfactory manner and that will be in the best interests of the school.

9. That is what happened here. They found Mr So whom they considered to be a very experienced teacher, satisfactory for running an all-day school, and it is said that under s.57, the Director can only approve as the principal someone who was an existing teacher. I do not agree with that. In my judgment, such construction would emasculate this part of the Education Ordinance. Further, even were this to be a competing construction, in the words of Lord Wilberforce in R. v. Herrod Exp. Leeds City Council [1977] AC 403 at p.419, a judge would have to look for a construction which is, first, contextually more apposite and, secondly, accords more with common sense. Mr Dykes' construction does neither.

10. In my judgment, whatever the practice has been and whatever teachers may think about it, the underlying intention of the Ordinance is to ensure that children have satisfactory principals and that management committees are entitled to look outside the limit of their own particular school to attract to the school the person best suited in the interests of the children. I therefore reject the construction which Mr Dykes put forward.

11. I can see the Director of Education has taken, if I may say so, a perfectly responsible attitude. He did not get involved in the internal dispute, it may be he thought that the Management Committee had behaved wrongly, but I cannot see that the Director of Education has done anything unlawful in this case, he has approved a person who was an outsider. In my judgment, he was legally entitled to do that.

12. I therefore would dismiss this application for judicial review. Costs will follow the event. The Respondent to have his costs to be taxed, if not agreed.

Representation:

Mr Philip Dykes, S.C. & Mr Christopher Lam, inst'd by M/s Ho, Tse, Wai & Partners, for the Applicant

Mr N.J. Cooney, G.C., for Department of Justice/Respondent