HKSAR v. CHEUNG KAM FAI (張錦輝)

FAMC No. 46 of 2020

[2021] HKCFA 15

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 46 OF 2020 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA NO. 90 OF 2019)

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro PJ:

1.  We dismissed this application for leave to appeal at the hearing.  These are our reasons.

A.     The charge and conviction

2.  The applicant was charged with an offence under section 72(2)(a)(ii) of the Education Ordinance (Cap 279) (“EO”) which states:

“No person shall, without the permission in writing of the Permanent Secretary, enter or remain in any school ... if at any time ... he has been refused registration as ... a teacher, or having been so registered has had his registration cancelled ...”

Contravention constitutes an offence punishable by a fine at level 6 and imprisonment for 2 years.[1]

3.  The prosecution’s case was that the applicant had been a registered teacher but had had his registration cancelled.  He was then in employment at the Hing Tak School in Tuen Mun, but notwithstanding that he received notice from the Education Bureau (“EB”) of the cancellation of his registration on 15 February 2017, the applicant entered and remained in the school on 10 separate days during the period between 30 March and 11 April 2017 without the written permission of the Permanent Secretary for Education (“PS”).

4.  He was convicted by the Magistrate, Mr Ip Kai Leung Jacky,[2] and received a sentence of 160 hours of community service.  His appeal to the Court of First Instance was dismissed by Deputy High Court Judge Frankie Yiu Fun-che.[3]

B.     The leave application

5.  The section 72(2)(a)(ii) offence is simple. Three elements had to be proved, namely: (i) that the applicant had been registered as a teacher and had had his registration cancelled; (ii) that he had entered or remained in the school during the charge period; and (iii) that he had done so without the permission of the PS.  At the trial, elements (ii) and (iii) were admitted.  On the present application, the cancellation is admitted to have been valid.  So on its face, there is simply no defence.

6.  However, the applicant seeks to argue that section 72(2)(a)(ii) is unconstitutional.  He seeks leave to appeal on the basis that the following constitutional rights are engaged, namely, his freedom of choice of occupation;[4] protection against arbitrary or unlawful interference with his privacy;[5] his freedom of movement within the HKSAR;[6] and his right to equality before the law,[7] all such rights being subject to a proportionality analysis.  We will say at once that, with the possible exception of freedom of movement (because of the effect of section 72(2)(a)(ii) excluding access to schools), we find it difficult to see how the other rights relied on are engaged at all in a challenge to section 72(2)(a)(ii). 

C.     Threshold issues

7.  However, we need not enter into a detailed examination of the applicability of those rights since the applicant faces severe threshold difficulties in attempting to raise such constitutional issues, especially in relation to the postulated proportionality analysis.

8.  The applicant’s argument does not focus simply on section 72(2)(a)(ii) but seeks to raise the issue of its proportionality by reference to the statutory grounds for cancelling a teacher’s registration which is necessarily a prior question.  Those grounds are laid down by EO sections 46 and 47 as follows:

46. Grounds for refusal to register teacher

The Permanent Secretary may refuse to register an applicant as a teacher if it appears to him that the applicant—  

(a) is not a fit and proper person to be a teacher;

(b) has been convicted of an offence punishable with imprisonment;

(c) is a person in respect of whom a permit to teach has previously been cancelled;

(d) is medically unfit;

(e) does not possess the prescribed qualifications;

(f) has attained the age of 70 years; or

(g) in making or in connexion with any application—

(i) ...

(ii) for registration as a manager or a teacher; or

(iii) to employ a person as a permitted teacher in a school,

has made any statement or furnished any information which is false in any material particular or by reason of the omission of any material particular.

47. Grounds for cancellation of registration of teacher

The Permanent Secretary may cancel the registration of a teacher—

(a) on any ground specified in section 46 which applies to the teacher, whether or not such ground existed at the time when he was registered as a teacher;

(b) if it appears to the Permanent Secretary that the teacher is incompetent;

(c) if the teacher has contravened any provision of this Ordinance;

(d) if it appears to the Permanent Secretary that the teacher has behaved in any manner which, in the opinion of the Permanent Secretary, constitutes professional misconduct; or

(e) if it appears to the Permanent Secretary that the teacher has behaved in any manner which, in the opinion of the Permanent Secretary, is prejudicial to the maintenance of good order and discipline in the school in which the teacher teaches.

9.  Two features of the present case are vitally important in this context.  First, for reasons which are not apparent, neither the applicant nor the respondent has disclosed to the Court the grounds upon which the applicant’s certificate was cancelled.  Such grounds will undoubtedly be known to both parties since the PS was required to state them in giving notice of his decision under EO section 47.[8] There is some suggestion in the Statement of Findings that the decision may have been based on a breach of the law or misconduct and the need to protect students,[9] but the Magistrate recorded that “the Task Force recommended to cancel the Defendant’s teacher registered status after it had reviewed his case for reasons that the Prosecution could not disclose.”[10]  That would not have prevented the applicant himself from making the disclosure in mounting the present application, but he obviously has chosen not to do so.  We must therefore approach this case on the basis that there is no known reason for the cancellation.

10.  Secondly, the applicant did not avail himself at all of the statutory appeal machinery designed to ensure a fair decision-making process.[11]  He did not appeal against the cancellation decision, nor did he challenge it by way of judicial review.  Indeed, he now accepts the decision’s validity.  Moreover, after receiving notice of the cancellation decision, he never sought the permission of the PS to enter and remain in the school for any purpose.[12] 

11.  These two features weigh decisively against the reasonable arguability of this leave application.  Non-disclosure of the grounds for cancellation make it impossible to conclude (assuming that a constitutional right such as the freedom of movement is engaged) that it is reasonably arguable that section 72(2)(a)(ii) is a disproportionate intrusion. This is exacerbated by his never having previously challenged the cancellation decision and never having sought permission.

12.  The difficulties caused by the non-disclosure are demonstrated by his submissions in that context.

13.  The applicant accepts that it is a legitimate aim to provide a safe environment for students in school[13] and then seeks to argue that there is no rational connection between that legitimate aim and the section.  Thus, he submits:

“The lifelong forbidding of ‘Deregistered teachers’ to enter any school premises cannot be said to be rationally connected with the aim of ‘protection of children’ as claimed by the government.”[14]

“... the restrictions to any person who had his/her registration cancelled to enter the school are clearly devoid of any logic or good reasons. This is just peculiar to say that a person who is deregistered because of the reasons of ‘medically unfit’, ‘does not possess the prescribed qualification’, ‘has attained the age of 70 years’ ... has to be banned to enter or remain in school for life, while there is no other law which restricts convicted murderer and rapist to enter school after serving sentence.”[15]

14.  The first of the abovementioned submissions begs the question.  Deregistration and refusal of access to schools may certainly, on certain grounds falling within EO section 46, be rationally connected to the protection of children.

15.  The second submission also underlines the importance of identifying the grounds on which the registration’s cancellation was made. It should be noted that the criticism of illogicality is not aimed at section 72(2)(a)(ii) but at the grounds for cancellation listed in EO sections 46 and 47.  If the applicant could show that the ground for cancellation was indeed simply his age and that he had applied for permission to enter and remain in the school for perfectly proper purposes but had been refused, a reasonably arguable case of a disproportionate infringement of the freedom of movement (as well as possible grounds for judicial review) might very well arise.  But if a teacher were excluded from entering schools based, for instance, on his not being a fit and proper person or on his having been convicted of an offence involving molestation or endangerment of children, it is hardly likely to be reasonably arguable that the restriction on his access to schools is disproportionate.  Nor would there be any controversy where, for instance, cancellation having been based on age alone, permission if sought, would have been given for the teacher to enter and remain.

16.  The applicant gives another example, complaining that section 72(2)(a)(ii) is disproportionately wide because it means that the applicant:

“... could not participate in any activities taken place in school, including but not limited to, alumni and/or parent-teacher association (PTA) activities, any school visit to discuss his/her children’s school works with teacher, any school activities with his/her children. Any deregistered person could not even take any learning classes in any education institutions without prior permission.”[16]

17.  No request for permission was ever made to enter for any such purposes, so one cannot assume that permission would have been refused.  Section 72(2)(a)(ii) specifically provides for permission to be given in appropriate cases so that criminal liability would be avoided.  The PS is expected to consider each case on its own merits and section 72(3) provides that the PS “may attach to any permission given under this section such conditions as he thinks fit”.  Since the applicant did not ask for permission – an element integral to the section 72(2)(a)(ii) offence which enables criminal liability to be avoided – he cannot be heard to say that the section necessarily excludes proper activities and is disproportionate for that reason.

18.  There is another objection to the present attempt at raising a constitutional challenge as a basis for appealing a conviction under section 72(2)(a)(ii).  The statutory intent is clearly that the EO’s scheme for registration, cancellation of such registration, appeals against such cancellations and permissions sought and given should form a coherent regulatory whole and should be invoked if a decision is to be challenged.  In parallel, there may be resort to an application for judicial review. By the time one gets to the stage of a prosecution under section 72(2)(a)(ii), the regulatory scheme is intended to have had its effect, or so much of its effect as the teacher concerned has chosen to invoke.  He or she will have had notification of cancellation with the grounds stated,[17] and could have instituted an appeal to the Appeal Board if so desired.[18]  A further appeal to the Chief Executive in Council could also have been pursued if necessary.[19] And if the cancellation was upheld, the teacher could, to avoid incurring liability under section 72(2)(a)(ii), have sought permission to enter and remain in a school for stated purposes, possibly subject to specific conditions.[20]  It is plainly not the intent of the EO to permit the validity of the cancellation decision to be challenged at the stage of a section 72(2)(a)(ii) prosecution when such challenges could and should have been made using the statutory procedures provided or by an application for judicial review.[21]

19.  Accordingly, in the light of the peculiar features of the present case involving non-disclosure of the grounds for cancellation, the absence of any prior challenge to the decision and the absence of any request for permission for access to a school, we concluded that there is no reasonably arguable basis for granting leave to appeal.