HKSAR v. Pun Chi Fai and Another

[English translation – 英譯本]
HCMA 158/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 158 OF 2010

(ON APPEAL FROM FLCC 1622 OF 2009)

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BETWEEN

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Before: Hon Fung J in Court

Date of Hearing: 28 October 2010

Date of Judgment: 9 November 2010

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J U D G M E N T

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1.The 1^st Appellant Pun Chi Fai and 2^nd Appellant Leung Suk Fong were each charged with one count of “failing to comply with an attendance order”: between 20^th February 2009 and 19^th May 2009, being the parents of boy X, without reasonable cause, failed to comply with an attendance order issued by the Permanent Secretary for Education under section 74(1) of the Education Ordinance (Cap 279). They were found guilty by the trial magistrate and each sentenced to three months’ imprisonment. They now appeal against the conviction and sentence. Parties agree to deal with the appeal against conviction first.

Prosecution Case

2.The 1^st and 2^nd Appellants are the parents of boy X who was born in September 1999. In 2008/2009 school year, he was studying in P3 in the Hong Kong Institute of Education Jockey Club Primary School. The two Appellants divorced in 2004.

3.Since 2006, out of dissatisfaction with school policies, the two Appellants sent complaint letters to the school and the Education Bureau many times. They were of the view that the school had not taken the problems seriouslyand the Education Bureau was shielding the school. Since 26^th May 2008, they have not allowed boy X to attend school.

4.On 2^nd July, 14^th July and 3^rd September 2009, the Education Bureau sent letters to the 1^st Appellant, stating that he should, for the sake of boy X’s future, let him have normal school life. It was also stated in the letters that under section 74(1) of the Education Ordinance, the Education Bureau had the authority to serve upon the parents an attendance order requiring them to cause the child to attend the named school; and that section 78 provided that any parent who without reasonable cause failed to comply with an attendance order should be guilty of an offence and liable to a fine at level 3 (i.e. HK$10,000) and to imprisonment for 3 months. However, the two Appellants did not allow boy X to attend school.

5.The Education Bureau sent warning letters to the two Appellants on 16^th and 25^th September 2008, stating that they should immediately cause boy X to attend the school, otherwise, an attendance order would be issued under the Education Ordinance.

6.Senior School Development Officer Chan Lin testified that she issued a letter to the 1^st Appellant on 29^th September 2008 in which she stated that she had contacted him since June 2008 and requested him to send boy X back to school. She had also specified that she could arrange for the boy’s transfer to other schools in the district. However, the 1^st Appellant had kept declining the Education Bureau’s advice and service. On 19^th September, she tried to visit the boy in the 2^nd Appellant’s home but was rejected by the 2^nd Appellant and was unable to have a discussion. The phone number of Tai Po District School Development Officer was attached and arrangement would be made forthwith if the 1^st Appellant wished to have boy X transferred to another school in the district.

7.The 1^st Appellant agreed that the Education Bureau had contacted them many times to discuss about transferring to another school.

8.On 3^rd October 2008, the Permanent Secretary for Education served upon the 1^st and 2^nd Appellants an attendance order, ordering them to, as parents of boy X, cause boy X to attend the named school, i.e. the Hong Kong Institute of Education Jockey Club Primary School. The explanatory note of the attendance order specified that if a parent was aggrieved by the attendance order, he/she might appeal to the Administrative Appeals Board within 28 days.

9.On 28^th October 2008, the two Appellants lodged an appeal to the Administrative Appeals Board. On 19^th February 2009, the appeal was dismissed. In the interim, boy X did not attend school.

10.On 29^th May 2009, the Education Bureau brought prosecution against the 1^st and 2^nd Appellants on the allegations that the two Appellants had failed to comply with the attendance order to cause boy X to attend the named school for the period between the day following the Administrative Appeals Board’s dismissal of their appeal, i.e. 20^th February 2009, and 19^th May 2009.

Defence Case

11.According to the 1^st Appellant, he did not cause boy X to attend school because the school principal was corrupt and lawless and that he did not want his son to be led astray. He was of the view that there should be a transfer only if there was a better school available, he would not accept transferring to a worse school. In his understanding, the named school was already the best in the district though there was nothing outstanding about it. In that case, other schools might be even worse. For these reasons, he intended to teach his son by himself and would make further plans after he grew up.

12.According to him, the school had failed to handle his complaints properly and the Education Bureau was also shielding the school. He therefore lost his confidence in the school completely and could not send his son to this school.

13.The details of the two Appellants’ allegations against the school were set out in the correspondences. Besides, during the cautioned interviews, they respectively produced to the police letters of complaints of the same content. The summary thereof is as follows:

(1) Criminal allegations: The principal was engaged in corruption, dereliction of duty and secret dealing. By charging school coach fees, he obtained “extortionate” picnic fees by deception. There was also transfer of benefit with speech therapist(s) as well as recruitment in the school campus for tutorial centre(s);

(2) Education: The school was erred in its selection of textbooks and replacement was therefore required. The level of the textbooks was not compatible and the standard of teaching was poor. Besides, pupils with learning disabilities were put in a separate class;

(3) School Life: The principal messed up the school bus service and failed to fight for free lunch from lunch supplier(s). Pupils were required to sit on the playground to wait for the commencement of classes even when the weather was cold;

(4) Parent-Teacher Association: The Parent-Teacher Association election was unfair and the photo of the 1^st Appellant on the flier when he ran for Parent-Teacher Association election was the smallest among all the candidates.

Reasons Given by the Magistrate

14.On the suggestion of the defence counsel, during the trial, the learned magistrate took the view that it was not necessary to make enquiry as to who was right and who was wrong concerning the two Appellants’ complaints against the school.

15.The learned magistrate was of the view that the two Appellants and the school had lost mutual trust and that the poor relationship had rendered it impossible for them to become compatible with each other. It was therefore not unreasonable to choose not to send the son to the named school.

16.Nonetheless, the learned magistrate took the view that the attendance order was not restricted to ordering the two appellants to cause their son to attend the named school, i.e. Hong Kong Institute of Education Jockey Club Primary School and that it was referring in general to schools under the Hong Kong school system. As they had deliberately taken their son away from the school system of Hong Kong, they were found guilty.

17.As Mr. Lee, counsel for the Respondent, did not support the various findings of the learned magistrate, I intend not to repeat the detailed analysis made by the learned magistrate.

Grounds of Appeal against Conviction

18.The perfected grounds of appeal are summarised as follows:

(1)The learned magistrate wrongly interpreted the attendance order as not restricting to Hong Kong Institute of Education Jockey Club Primary School and thereby erred in his consideration of whether the cause put forward by the two Appellants was reasonable;

(2)The official signing the attendance order did not have the authority to issue an order on behalf of the Permanent Secretary.

19.Mr. Pun, counsel for the Appellants, withdrew the second ground of appeal.

The Respondent’s Arguments

20.Mr. Lee agreed that the “named school” refers to Hong Kong Institute of Education Jockey Club Primary School, not the school system of Hong Kong or any primary school.

21.Mr. Lee pointed out that magistracy appeal cases were handled by way of re-hearing and the evidence of the present case could rebut the reasonable cause advanced beyond all reasonable doubts. His arguments are as follows:

(1) The two Appellants did not cause boy X to attend the named school in compliance with the order;

(2) Concerning the complaints made by the two Appellants against the school, they were not supported by substantive evidence and/or the school already made appropriate arrangements for improvement;

(3) In the absence of cooperation from the two Appellants, it was not unreasonable for the Education Bureau to have failed to order the boy to attend another named school;

(4) The two Appellants have never tried to find another school for boy X;

(5) The result of the two Appellants’ act was boy X’s removal from the school system, rendering it impossible for him to move up to higher grades. It is absolutely unreasonable.

22.Concerning the complaints of criminal nature stated above, on appeal, parties agreed to accept new evidence, i.e. the 1^st Appellant had made a report to the police but it was found to be unsubstantiated after investigation.

23.As for the allegation of obtaining picnic fee by deception, the fact was that a single amount of $35 was listed for the school picnic. After a complaint was made, it was then specified that it consisted of a transportation fee of $20, a cleaning fee of $10 charged by the venue owner, and $5 charged by the organization arranging the picnic. There was no evidence which suggested that it involved deception.

24.The Education Bureau did not object to schools arranging private tuition for pupils but that it should not be conducted during school lessons.

25.As for the erroneous selection of textbooks, in fact, a teacher had mistakenly put down another textbook of the same publisher and it required amendment. After a complaint was made, the school has already paid in full for the replacement of textbooks.

26.The election of the Parent-Teacher Association followed its constitution and there was nothing unfair. Although the photo of the 1^st Appellant on the flier was smaller that those of other candidates, it was displayed in its original size and the difference in sizes was not obvious.

27.As for the suggestion that the principal intentionally messed up the school bus service, the fact was that the contractor terminated the contract unilaterally. Besides, in the contract negotiation with the lunch contractor, the school did ask for free lunch as rebate. However, as the school did not want to be suspected of accepting advantages, it was eventually deleted from the formal contract.

28.On the question about cold weather, the school’s reply to the 1^st Appellant was that activities would be conducted indoor when it was too cold and that pupils who found it unbearable to sit down could ask for permission to stand up.

29.As for the level of the school and the quality of its teaching, different people might have different views. Besides, grouping students with learning disabilities in a separate class is an approach well supported by theories and is not unreasonable.

Relevant Provisions

30.Section 74 of the Education Ordinance provides that:

“(1) Where it appears to the Permanent Secretary that a child is not attending primary school or secondary school without any reasonable cause, the Permanent Secretary may, after making such inquiries as he considers necessary, serve upon a parent of the child an attendance order in the specified form requiring him to cause the child to attend regularly as a pupil the primary school or secondary school named in the attendance order.

(2) The Permanent Secretary may at any time, by notice in writing served upon a parent of the child to whom an attendance order relates-

(a) vary the order by substituting another primary school or secondary school for that named in the order;

(b) otherwise vary or withdraw the order,

and any variation of an attendance order shall take effect on the expiry of the period of 14 days after the date of service of the notice in writing.

(2A) The Permanent Secretary may at any time, by notice in writing served upon the management committee or incorporated management committee (as may be appropriate) of a primary school or secondary school named in an attendance order, require the committee to admit to that school as a pupil the child to whom the attendance order relates.

(2B) …

(3) This section shall-

…

(c) not apply to a child-

(i) who has completed Form III of secondary education and whose parent can produce evidence to that effect to the satisfaction of the Permanent Secretary;

(ii) …”

31.Section 78 of the Education Ordinance provides that:

“Any parent who without reasonable cause fails to comply with an attendance order (as the same may be varied from time to time) shall be guilty of an offence and shall be liable on conviction to a fine at level 3 and to imprisonment for 3 months: Provided that if an appeal is made against an attendance order or a variation of an attendance order under section 74A, no offence shall be committed by reason of a failure to comply with the attendance order or the attendance order as varied, as the case may be, until the appeal has been disposed of, withdrawn or abandoned.”

Relevant Principles

32.An objective point of view should be adopted in the determination about reasonable cause, and all the circumstances known or which ought to have been known to the Appellants should be taken into account[1]. (HKSAR v Ho Chung Bong [2002] 3 HKLRD 452, para 15 and 16). Besides, the burden is on the Prosecution to rebut the reasonable cause and the standard thereof is beyond all reasonable doubts.

33.Magistracy appeal cases are conducted by way of re-hearing and the courts handling the appeal have the authority to reassess the evidence, call further evidence or make inference (HKSAR v Chou Shih Bing （2005）8 HKCFAR 70). Normally, an appeal court will not lightly interfere with the finding of facts, in particular those within the function of the “jury” to decide, as they are based on hearing the witnesses and observing their demeanour by the trial court itself, unless such findings are in defiance of reasons.  

Discussion

34.First of all, parties agreed that the attendance order concerned was in force and the present case is not a hearing for judicial review about the validity of the attendance order. However, as the issue concerned was whether the two Appellants had reasonable cause and that their act was done against the school and the Education Bureau, the reasonableness in totality, in particular the relative reasonableness, must be taken into account.

35.I agree with parties’ submission that the “named school” means the Hong Kong Institute of Education Jockey Club Primary School and it was not a general reference to the school system of Hong Kong or other schools.

36.Mr. Pun supported the learned magistrate’s finding that the two Appellants had reasonable cause. He stated that it was a finding of fact with which the court hearing the appeal should not interfere.

37.Mr. Pun commented that the Respondent’s argument was erroneous in the same manner as that of the learned magistrate: i.e. referring the “named school” in general as the school system of Hong Kong. According to Mr. Pun, as the attendance order was only about one named school, the fact that boy X did not attend other schools was therefore of no relevance. He added that, as there was already a deep rift between the two Appellants and the school, it was unreasonable for the Education Bureau to order them to cause boy X to go back to that school and it should have named another school in the attendance order.

38.Mr. Pun added that, as this case was a criminal prosecution, the mistake of the Education Bureau should not have been used as the ground for convicting the two Appellants.

39.I am of the view that, as far as the learned magistrate was concerned, the case could not be decided on the mere fact that the two Appellants and the school were incompatible whilst avoiding considering the content of the complaints. I now consider the substantive grounds of the complaints.

40.Furthermore, the finding of facts of the present case does not turn on the credibility of witnesses but the question of reasonableness. The court hearing the appeal has the authority to determine the reasonableness of the cause.

41.The allegations of criminal nature were not supported by any evidence at all. As for the so-called overcharging of picnic fees, in response to the complaint, the school had already listed out the details of the fees. There was nothing unreasonable in the amounts and items involved. The erroneous selection of textbooks, whilst indeed unfortunate, had already been remedied by the school and the costs of replacement had been paid upon the 1^st Appellant’s request. As for the issues about the Parent-Teacher Association, school bus and lunch, I agree with the Respondent’s arguments. Besides, these were just certain aspects of school life, not its core.

42.On the issue of cold weather, the school had already given a suitable response and there was no indication in the evidence that the two Appellants had made requests to the school concerning boy X’s personal circumstances and yet got denied for no reason. As for the level of the school, different people might have different views. Besides, the 1^st Appellant himself also regarded that school as one of high quality in Tai Po district.

43.I am of the view that the two Appellants’ complaints against the principal and the school did not constitute a reasonable cause for not sending boy X back to the named school.

44.I am also of the view that there was nothing unreasonable in the Education Bureau’s decision of not ordering the two Appellants to cause boy X to attend another named school.

45.Prior to issuing the attendance order, the Education Bureau had, for a long period of time, attempted to discuss with the two Appellants about transferring to other schools but could not get their cooperation. The 1^st Appellant clearly indicated that he was prepared to teach boy X by himself and would make further plans by the time he grew up. Discussion about transfer would therefore be fruitless. As the named school had been selected by the two Appellants at the outset, all that the authority concerned could do was to consider the reasons for which they had changed their mind. As stated above, the complaints lacked substantive grounds and/or explanations were duly given or the complaints were duly handled. For these reasons, there was no fault on the Education Bureau’s part in its decision concerning the named school.

46.It is not difficult to imagine that, had the Education Bureau named another school in the absence of the two Appellants’ participation, they would have complained against it of acting wilfully and rashly. The legislative intent of the Education Ordinance in requiring parents to cause their children to attend school is profoundly obvious. It was unreasonable to shift the blame on the Education Bureau for it had not named another school.

47.In spite of the two Appellants’ complaints and grudges against the school, there was nothing unreasonable in ordering them to cause boy X to attend the named school. These problems, after all, concerned only their personal feelings about the schools and should not affect the education of the boy. They might as well arrange for transfer by themselves or seek help from the Education Bureau and thus the matters could come to an end.

48.Therefore, the Respondent has rebutted beyond all reasonable doubts the two Appellants’ cause for their failure to cause boy X to attend the named school. Mr. Lee validly contended that, given the fact that the two Appellants did not arrange for a transfer for the boy by themselves, their behaviour appeared even more unreasonable.

Conclusion

49.For the reasons stated above, the appeal against conviction is dismissed. The appeal against sentence will be dealt with in a further hearing.

50.I wish to express my gratitude to Mr. Pun and Mr. Lee for their submissions on the appeal against conviction.

Mr. Alex Lee, DDPP, of the Department of Justice, for the Respondent

Mr. Hector Pun, instructed by Peter K.H. Wong & Co., assigned by the Legal Aid Department, for the 1^st and 2^nd Appellants

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.