Leung Ting How and Another v. Leung Sing Po Supervisor of School of Chinese Artists Association of HK

DCCJ004890/1969

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CIVIL JURISDICTION

ACTION NO. 4890 OF 1969

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Coram: Cons, D.J.

Date of Judgment: 3 March 1970

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JUDGMENT

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1. In the early part of last year the first and second plaintiffs were respectively the head teacher and a class teacher in the School of the Chinese Artists Association of Hong Kong. The defendant was the registered supervisor of the school, but the impression I gained was that he was rather more in the position of a Chairman of a Board of Governors and that the actual running of the school and its day-to-day management was in the hands of the principal. Up to the beginning of March last year that office was held by a gentleman of the the name of LAI Chi-cheung. He was to some extent suffering from ill-health and probably for this reason the Board replaced him by a lady CHAN Shiu-mee. Unfortunately there appears to have been a clash of personalities between the new principal and the head teacher, complicated by a difference of opinion as to the fees collected by the head teacher for the month of February, that is the first month of that particular school term. There was some dispute as to whether or not it was the head teacher's regular duty to collect such fees, or whether on this particular occasion he acted merely to oblige the old principal, but the dispute is not material. It is accepted that on this particular occasion, duty or otherwise, he did so. The actual fees, it would seem, were collected from the pupils by their own class teachers and passed on, in this instance, to the head teacher who would in due course account to the supervisor for the Association. Following the financial dispute the Board of the Association decided to dismiss the head teacher, doing so in a letter from the supervisor dated the 9th of April. At the same time a similar letter was sent to the second plaintiff. No reason was given at the trial for coupling him with the head teacher, but I assume that there was also a question of personality.

2. There is considerable contradiction between the evidence of the head teacher on the one hand, and the supervisor and the new principal on the other. The head teacher gave me the feeling of a stubborn, small-minded man, prone under cross-examination to change his ground when hard pressed; the new principal, although obviously deeply personally involved, I thought generally reliable; of the supervisor I formed an extremely favourable view. In the circumstances I came to the conclusion that with regard to any matter which was disputed the evidence of the defence was to be preferred.

3. Very soon after the service of the Writ the defence filed a Counterclaim against the head teacher alleging a general deficiency of just over $1,000 in respect of the disputed fees. That figure is based on accounts made up by the new principal. I must mention that on the second day of the trial, that is some three weeks after the first day, she appeared to contracdict her earlier evidence as to the source of the information upon which she based her accounts, but the details receive support from the document Exhibit 7, a circular to parents setting out the fees which were to be charged by the school for the term in question, and which was discovered at the school during the adjournment. I am satisfied that these accounts correctly set out the fees which should have been collected by the head teacher, and the proper balance which was due from him to the school. He himself adduced nothing to support the accuracy of his financial statement. When cross-examined he did show to defendant counsel a scruffy notebook which he alleged to contain signatures from the various class teachers who had made payments to him, but it was not produced in re-examination nor were any of those teachers called as witnesses; not even the second plaintiff was asked to testify on this aspect. It was suggested in the final submission that the Counterclaim could only succeed if evidence were called from every single person who paid any part of the money in question. This may be a perfectly proper practice in a prosecution for the criminal offence of embezzlement, but I do not think it is necessary in a claim of this nature. There is evidence of what would have been the amount collected in the normal course of events. It may be that more pupils had defaulted in their payments than those for which the new principal had made allowance. But if both before and at the trial the head teacher chooses not to give details of those circumstances, he must not be surprised that the court comes to the conclusion, as I do, that this was probably not the case. There may, of course, also be other explanations, but if so, there is no suggestion of them in the evidence.

4. I turn now to the Statement of Claim. As amended prior to service it sets out an action for wrongful dismissal claiming arrears of wages accrued due but unpaid at the time of dismissal and damages based upon the wages that would have accrued during the remaining period of the school year; apparently it is the practice, in this school at least, to employ teaching staff upon annual contract only. The case was presented at the trial, however, on a completely different footing, to some extent directly at variance with the original, although still retaining the same financial goal. It proceeded on the assumption that the two letters of the 8th of April were invalid as notices of termination of service, either because they did not comply with Clause 5 of the Contracts of Employment, which provided that notice should not be made to expire on a day within the holiday of the school, whereas April the 9th formed part of the short mid-term Easter and Ching Ming holiday, or because the notices were not expressed to expire at the end of a calendar month. This second point was developed from argument founded on the old Common Law rule against the apportionment of time in the contracts and periodic payments made under them. It is not necessary at the moment to test the substance of these two propositions, although it will be necessary to turn to one of them later, for it is in any event clear that the two letters sent on that day, if looked upon as notices of one month, are in that sense invalid for the simple reason that they are not notices of one month. They are letters of instant dismissal. They could not be more clearly expressed. I am not prepared to accede to the defence suggestion that by the inclusion in the letters of a statement that salary would be paid for one more month, the instant dismissal had been transformed into a notice of one month together with an order not to perform actual duties during that time.

5. Relying upon the invalidity of the notice in this particular sense the argument for the plaintiffs was pursued by analogy to the law of landlord and tenant in its application to notice to quit. Thus it was suggested that as an invalid notice to quit is insufficient to determine a periodic tenancy, so will an invalid notice of termination of service have no effect upon a contract of employment, and that as the plaintiffs were ready and willing to perform their duties until the end of the school year, they were entitled to their salary until that day. It is an ingenious argument but I can find no justification, nor could the plaintiffs show any authority, for applying to one branch of the law a principle peculiar to another and very specialised branch. The law relating to landlord and tenant is different from that relating to other contracts, in that it deals with propriety rights. In particular it will enforce these if necessary by specific performance. For example to take circumstances somewhat analogous, it would reinstate in possession a tenant who had been forcibly evicted by his landlord in breach of the lease. But the courts have long refused to decree specific performance of a contract of service, and that is in effect what the plaintiffs now in retrospect request.

6. The position in the present case is simple. The plaintiffs' contracts of employment provide for one month's notice of dismissal, but the plaintiffs were in fact dismissed instantly. If the defendant is unable to justify that dismissal he is liable to the plaintiffs in damages which, bearing in mind the provisions as to notice, would probably be assessed at a sum equivalent to one month's wages. I deliberately refrain from being more definite because the quantum of damages was not canvassed at the trial. With the defence's attempt to justify the dismissal by notice I have already dealt. But in the alternative they rely upon a right which originally existed at common law and is now embodied in the Employment Ordinance, namely the right to dismiss an employee at any time upon payment of a sum equivalent to that which would have accrued during a proper period of notice. On the 9th of April a proper period of notice would have expired on the 9th of May. I reject the plaintiffs' suggestion that it must necessarily have extended to the 31st of that month. With the greatest respect to the learned author of Batt on Master and Servant, I do not share his doubts as to the applicability of the Apportionment Ordinance (see p. 275) to contracts of service, but even if I am wrong as to this I am satisfied that the wording of Clause 6 of the contracts of employment shows an intention by the parties that salary should, in these particular circumstances at least, be apportionable. I hesitated for a time over the possibility that the sentence in the letters of dismissal, "Your salary shall be paid up to the 9th of May 1969", might be open to the interpretation that the month's salary would not be paid until the 9th of May, but after due consideration I have come to the conclusion that it is an offer of an immediate payment, payment which the plaintiffs voluntarily declined to accept, even up to the present day.

7. The plaintiffs claims therefore fail in whichever way they are approached, but naturally they may recover the monies due to them as arrears of wages and offered in lieu of notice, that is, totals for the first and the second plaintiffs of $1,150 and $416 respectively. I enter judgment for those sums accordingly, but at the same time judgment against the first plaintiff in favour of the defendant on the Counterclaim in the sum of $1,044.19. This leaves a balance in his favour of $105.81. Appropriate sums were, I understand, paid into Court shortly after the first appearance of the claim on call-over. I would like to hear argument as to costs.

3 MAR 1970

Representation:

Cheung of W.I. Cheung & Co. for plaintiff.

Ming Huang instructed by Woo & Kwan for the deft.