KO HON YUE v. LIU CHING LEUNG AND OTHERS

HCA3494/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3494 OF 2003

-----------------------

-----------------------

------------------------------------

REASONS FOR DECISION

-------------------------------------

The application

1.  By summons filed on 24 October 2007, which was the third day of the trial, the plaintiff applied to further amend the Re-Re-Amended Statement of Claim. The application was heard after the plaintiff’s Opening had concluded. I refused the application. My reasons are as below.

2.  Apart from some minor amendments to correct some clerical errors and typos, the main amendments sought are the addition of a new paragraph 31B and a new relief. Both of them are to reflect a new cause of action for damages for breach of the statutory duty under Regulation 76 of the Education Regulations, cap.279A. The application was made on the basis that no new facts would need to be introduced.

Late application to amend

3.  It is not in dispute that this is a late application for amendment. First, it was made at the trial with the summons being filed in the course of the plaintiff’s Opening. Second, it was made at a time when the limitation period for the new cause of action had already expired. Third, the amendment could have been sought at an earlier stage of the litigation, given that the Statement of Claim had already undergone several amendments since the claim commenced in 2003. It is trite that the court does not readily grant leave to amend at the trial. In exercising the discretion, the court will need to consider whether the proposed amendment is properly formulated and is also concerned to see that the proposed amendment is not futile in the sense that it is arguable.

The objections

4.  The 1^st defendants opposed the application on two main grounds. First, it was said that Regulation 76 did not confer on the plaintiff a cause of action in private law. Second, it was argued that the breach, even if proved did not cause the loss and damage pleaded. The 1^st defendants are proceeding on the assumption, but without conceding it, that the plaintiff will be able to prove as a matter of fact that the decision to terminate the plaintiff’s employment was not a majority decision of the School Management Committee (“SMC”), hence a breach of Regulation 76. The objections are based on points of law.

A private cause of action for breach? 

5.  On the first objection, the intended new claim is for breach of statutory duty simpliciter. In order to maintain the claim, it has to be shown that the breach gives rise to an action in private law. The plaintiff has to show, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that the legislature has intended to confer on members of that class a private right of action for breach of the duty.  As emphasised by Lord Steyn in Gorringe v. Calderdale MBC [2004] 1WLR 1057, 1058 at para.3, the central question in a claim of breach of statutory duty is whether from the provisions and structure of the statute, an intention can be gathered to create a private law remedy, and not whether the statute excludes a private law remedy.

6.  The current Education Ordinance was enacted in 1971. Section 84 empowers the Governor (subsequently the Chief Executive) in Council to make regulations for the purposes stated therein. Both the Education Ordinance and the Education Regulations had undergone a number of amendments since 1971.  Given that the termination of the plaintiff’s employment took place in July 2000 and/or July 2001, it is the pre-2 February 2003 version of section 84 and the pre-1 January 2005 version of Regulation 76 that the present application is concerned with.

7.  Among the many purposes set out in the applicable version of section 84, counsel can only point to two subsections as being relevant to Regulation 76. The first is section 84(t), under which regulations may be enacted to provide for “general matters of school management”.  The second is section 84(u), under which regulations may be enacted to provide for “the duties of supervisors and principals”.

8.  The Education Regulations contain a number of parts. Under the applicable version, Regulation 76 falls within Part XII, which deals with school management committees and supervisors.  Regulation 76 reads:

“	The appointment and dismissal of any member of the teaching staff of any school shall be determined by a majority vote of all the members of the management committee of that school.”

9.  Regulation 101 provides that it is a criminal offence to contravene certain provisions of the Education Regulations. Regulation 76 is not among the regulations covered in Regulation 101.

10.  Mr Chiu for the plaintiff argued that Regulation 76 is a recognition of the special status of teachers in a school and of the need to protect their position by ensuring that they be treated with due fairness and free from abuses. The best protection, he submitted, is to give to the teachers security of tenure. Accordingly, it is to be inferred that the legislature intended to confer on teachers a remedy in private law where the dismissal did not comply with the majority vote requirement of Regulation 76.    

11.  However, as a matter of statutory construction, there is nothing in the applicable version of Regulation 76 or the Education Ordinance or the Education Regulations to suggest that Regulation 76 is intended for the protection of teachers.  As its long title states, the provisions in the Education Ordinance primarily deal with “the supervision and control of schools and the teaching therein”.  As for the pre-2005 Education Regulations, the bulk of its provisions is concerned with regulating the physical and sanitary conditions of school premises, matters relating to students’ discipline and welfare, fees and holidays as well as other general matters on the operation and administration of the school. Part XII, of which Regulation 76 forms part, relates to the constitution of the school management committee and the functions and duties of the supervisor and the school management committee. In the specific case of Regulation 76, it regulates how the school management committee should discharge their duty in connection with the appointment and dismissal of teachers. 

12.  Upon an analysis of the provisions and structure of the Education Ordinance and the Education Regulations, it can be seen that they essentially prescribe a regulatory system for the promotion of education, which is for the benefit and protection of the public at large.  In my view, there is no objective basis for inferring that the statutory duty under Regulation 76 was imposed for the protection of the teachers and that the legislature had intended to confer on the teachers a private right of action for breach of the duty.  The construction advocated by the plaintiff does not accord with the overall scheme and framework of the Education Ordinance and the Education regulations. As observed in X (Minors) v. Bedfordshire County Council [1995] 2 AC 633 at 731, “Although regulatory or welfare legislations affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general.”

13.  Further, it is to be noted that Regulation 76 also covers appointment of teachers. In the context of appointment of teachers, it is difficult to see what protection for the teachers was intended by the legislature and how the statutory duty could secure their employment or ensure fairness in their treatment by the school management committee. There is no apparent rationale for conferring on teachers a private cause of action in the event their appointment was not pursuant to a majority vote of the school management committee.  This is particular so when the common law has provided for remedies for teachers whose appointments or dismissals have not been properly authorized by the school management committee.    

Is the pleaded loss caused by the breach?

14.  Turning to the second objection, a party claiming for breach of statutory duty must show that the breach caused his loss. If the damage would have occurred in any event, then the claim would fail. The loss relied upon by the plaintiff for the intended claim of breach of statutory duty is the same as that pleaded for the contractual claim of wrongful termination or constructive dismissal, namely, the loss of salary and provident fund contributions and dividends: see paragraph 31B of the proposed amendment and paragraph 31 of the Re-Re-Amended Statement of Claim.     

15.  It can be readily seen that the loss as pleaded was not caused by the breach of Regulation 76, but was occasioned by the wrongful termination of employment or constructive dismissal. If the termination were found not to be wrongful, the plaintiff would not be entitled to any future salary or provident fund benefits. He could not therefore claim to have suffered any loss even if the school management committee’s decision to terminate his employment was not pursuant to a majority vote.   

Conclusion

16.    Thus analysed and for the above reasons, I am of the view that the intended amendment is futile, being unarguable as a matter of law. The application is therefore refused with costs to the 1^st defendant in any event, to be taxed if not agreed.