Ko Hon Yue v. Liu Ching Leung and Others

CACV 294/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 294 OF 2008

(ON APPEAL FROM HCA NO. 3494 OF 2003)

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Before: Hon Tang Ag CJHC, Cheung JA and Yeung JA in Court

Date of Hearing: 9 March 2011

Date of Decision: 9 March 2011

Date of Reasons for Decision: 25 March 2011

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REASONS FOR DECISION

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Hon Tang Ag CJHC:

1.The Plaintiff was a teacher in Fung Kai No.1 Secondary School (“the School”). The 1^st Defendants were the Management Committee of the aided school for the year 2001.

2.The facts are complicated.  But a sufficient statement of them can be found in our judgment of 19 November 2010 (“the judgment”), and we will not repeat them.

3.In our judgment, we allowed the Plaintiff’s appeal and sent the matter back to Chu J for assessment of damages in accordance with the judgment.

4.This is the 1^st Defendants’ application for leave to appeal to the Court of Final Appeal as well as for an order that the execution of the judgment be suspended or stayed pending the appeal or further order.

Leave to appeal

5.The 1^st Defendants are not entitled to leave as of right.  Mr Andrew Mak relies on section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  It is said that we should grant leave to appeal because one or more questions which are involved in the appeal are of great general or public importance.  Alternatively, Mr Mak submits this is a case where we should grant leave to appeal on the “or otherwise” ground.

Great general or public importance

6.It is said that grounds (2) and (3) of the proposed grounds involve points of great general or public importance.  They turn on the construction of the contract of employment.  We have held that clause 54(b) of the Code of Aid (“the Code”) had been incorporated into the employment contract of the Plaintiff.

7.As an aided school, the School was governed by certain Code of Conduct for Aided Schools issued by the Education Department.  It was accepted that the School was bound by the Code.  The question was whether the Code had been incorporated into the Plaintiff’s contract of employment.  In the Letter offering appointment (which the Plaintiff had accepted), the Plaintiff was told that the School offered him “an appointment as a teacher in the school … under the conditions set out in the attached Conditions of Service”.

8.The Conditions of Service included an “Other Conditions” clause which where relevant read:

“Conditions other than what are listed above are provided in the Education Ordinance, the Employment Ordinance and their subsidiary legislations, the relevant Code of Aid, and the instructions as the Director of Education may from time to time issue.”

9.The issue was whether the “Other Conditions” was binding on the School.  We said yes.

10.It is not clear why it is said that this is a point of great general or public importance.

11.As we have said in para. 38 of the judgment,

“38. … Conditions of Service had been amended from time to time and as the learned judge said:

‘144. … According to the Principal, the School had been adopting the samples provided by the Education Department and the changes were to keep in line with those changes introduced by the Education Department.’”

12.It is not known whether there has been further changes to the Code and whether any teacher is now employed on terms similar to those under which the Plaintiff was employed.  Nor do we know the content of an up-to-date Code of Conduct.  Indeed, with respect, although the trial had taken an inordinate amount of time, little attention had been given to different versions of the Code of Conduct or what changes had been made to the Conditions of Service as a result of changes introduced by the Education Department.

13.In our judgment, we referred to another decision of this Court, Chan Chi Loi v. Cheng For & Ors (unreported), CACV243/2003, where we pointed out (in para. 40) the contractual provisions were differently worded. 

14.Moreover, even if the appeal involves a point of great general or public importance, it does not follow the leave to appeal should be granted.  The existence of a question involving a point of great general or public importance enables this Court to exercise its discretion to grant leave. In some cases, it would be appropriate for this Court to refuse leave, because the Court of Final Appeal is in the best position to decide whether it is a suitable case for leave.  If a point is indeed of great general or public importance, there will likely be other litigation on the point, which may provide a better opportunity for a comprehensive determination by the Court of Final Appeal.

15.Here, the Plaintiff had acted in person, and that was a source of great difficulty for this Court. The matter was not helped by the wide-ranging submissions which were made in the court below.  The pleadings were also prolix.  The Plaintiff continues to act in person and with respect, he is unlikely to be in a position to assist the Court of Final Appeal.

16.Point 4 deals with the question whether the 1^st Defendants were the agents of the sponsoring body.  It is said this also involves a point of great general or public importance regarding the pleading of agency and the burden of proof.  We do not agree.

17.We have dealt with the agency point in some length in the judgment.  Essentially, this turned on the pleading.  We explained why we took the view that the 1^st Defendants had never pleaded that they were the agents of the sponsoring body.  There was nothing in any of the contractual documents to show that the 1^st Defendants had contracted as an agent.  If they had pleaded that they were the agents of the sponsoring body, and if the sponsoring body had accepted that they were indeed the principal, such that they were the employer of the Plaintiff, then it would probably not have been necessary to decide whether the members of Management Committee were also personally liable.  However, there was no indication that the sponsoring body admitted that they were the 1^st Defendants’ principal or that they were contractually liable to the Plaintiff.  In any event, this is a pleading point and it is difficult to see how this could be said to be a point of great general or public importance.

18.The last point relied on by Mr Mak relates to abuse of process where we interfered with the learned trial judge’s exercise of discretion.  See paras. 91-114 of the judgment.  With respect, we do not believe any point of great general or public importance is involved.

“Or otherwise”

19.This is rarely a basis for leave by this Court.  This is not such a case.

20.For the above reasons, we have refused leave to appeal with costs.

Hon Cheung JA:

21.I agree.

Hon Yeung JA:

22.I agree.

Mr. Andrew Mak, instructed by Messrs ONC Lawyer, for the 1^st Defendants

The Plaintiff, in person, present

(I)1st Defendants leave to Appeal to Court of Final Appeal granted by Court of Final Appeal. Please refer to FAMV17/2011 dated 16 June 2011 (II) Please refer to FACV8/2011 for the relevant appeal(s) to the Court of Final Appeal.