HKSAR v. NG SUI HONG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 435 OF 1997

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J U D G M E N T

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The convictions

1. The Appellant was convicted of two offences, namely, being the manager of an unregistered school, contrary to s.87(1)(a) of the Education Ordinance ("the Ordinance") and employing a person who is not a registered or permitted teacher to teach, contrary to s.87(3)(f) of the Ordinance.

The facts

2. The facts revealed that the Education Department had conducted four visits of "The Best Keeper Tutorial Centre" ("the Centre") on 9th May 1996, 10th July 1996, 30th September 1996 and 26th November 1996. Inside the Centre, there were four rooms and on each of the visits, it was found that school children of various ages ranging from 6, 7 to 12 were sitting in the rooms doing their homework. They were supervised by an adult who would answer questions if the children encountered problems with their work. On two of the visits, the inspector from the Education Department was met by the Appellant.

The appeal

3. The gist of the appeal is that the prosecution had failed to prove the elements of the offence of two charges.

The Ordinance

4. Section 87(1)(a) provides that any person who is an owner or a manager of or a teacher in a school which is not registered, or provisionally registered, shall be guilty of an offence.

5. A "school" is defined in s.3 as meaning "an institution, organisation or establishment which provides for 20 or more persons during any one day or eight or more persons at any one time, any nursery, kindergarten, primary, secondary or post-secondary education or any other educational course by any means, including correspondence delivered by hand or through the postal services." Section 3 further defines the meaning of nursery education, kindergarten education, primary education, secondary education and post-secondary education.

The Centre was a school

6. The evidence revealed that on each of the visits, the total number of students in the Centre were found to be 20 or more. It is apparent from the evidence that the Centre was operating as a tutorial school. Students did their school work there. The evidence revealed that they did Chinese, English and Mathematics exercises and some were doing dictation. If they encounter problems with their homework, they would be assisted by the supervisor. In other words, the supervisors were providing lessons for these students. Exhibit P2 which was an advertising pamphlet of the Centre said that

" Course Content

A Brief Introduction of the Courses. Day Courses. Course Contents. Whole curriculum learning. Second Course, Homework Counselling. Third, Pre-examination Revision. Levels P1 to P3, $1,050; P4 to P6, $1,150. Time: 8.30 to 1.00 pm or 2.00 to 6.30 pm. Lunch provided."

7. In my view, the definition of a school is very wide. It is not confined to an establishment providing formal nursery, kindergarten, primary or further educations in settings that one would expect to find in an ordinary school. The definition includes any other educational course by any means, including correspondence delivered by hand or through the postal services. "Educational course" in my view includes tutorial lessons being given by the supervisors. The questions and answers on problems arising from the homework are obviously educational in nature. The course can be given by any means, it is not confined to the setting of a teacher giving lectures in a classroom. In this case, educational courses were provided to eight or more students at any one time. I am satisfied that the Centre was indeed a school within the meaning of the Ordinance.

Presumption

8. Section 88 of the Ordinance further provides for the presumption. It states that in any prosecution for an offence under the Ordinance, if it is provided that any equipment, materials or documents of an educational nature or suitable for the purposes of a school were found at any place, it shall be presumed until the contrary is proved that a school was being operated at such place. School textbooks and exercise books were found at the Centre. In view of the findings of the Magistrate, he did not see it necessary to rely on s.88. I agree with him on this point.

Registration

9. I will now deal with the issue of the registration of the school. On this issue, I am satisfied that the prosecution had failed to prove that the Centre was an unregistered school. Under s.8 of the Ordinance, the Director of Education is required to keep a register of the school. To establish the offence, there must be admissible evidence that the school was not registered. I have considered whether s.87(1)(a) is one of those statutory provisions covered by s.94A of the Criminal Procedure Ordinance, namely, that the prosecution does not have to prove the negative averment that the school was unregistered and that the burden of proof is with the defendant to show that there was registration.

10. The exception to the rule relating to the burden of proof is limited to offences arising from enactments which prohibit the doing of an act, save in specified circumstances, or by people of specified classes, or with specified qualification, or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts subject to provisos, exemption and the like, then the prosecution can rely on the exception : R. v. Edwards [1975] Q.B. 27 and the discussion of the case and subsequent authorities in Bruce & McCoy in Criminal Evidence in Hong Kong, para 55-100 and Archbold Criminal Pleading Evidence and Practice, para 4-388 and 4-389.

11. Looking at s.87(1)(a), it says anyone who is an owner or a manager of or a teacher in a school which is not registered shall be guilty of an offence. This is not a section which prohibits the doing of acts subject to provisos or exemptions. The wording of the section shows that the burden is on the prosecution to prove the school was unregistered. There are two further reasons why the section should be construed as imposing the burden on the prosecution. The section is targeted at three types of persons : namely, owner, manager and teacher. While the former two categories of persons may have evidence of registration of the school, a teacher would just not be in a position to adduce evidence of the registration of the school. It would be odd that in respect of the same section, different burden of proof will apply depending who was charged under the section. Further, a certificate of registration issued under s.18 may be cancelled under s.22. The production by a defendant of a certificate of registration is therefore not conclusive.

12. The Magistrate in his finding stated that it was not disputed that the school was unregistered. There was simply no admissible evidence that the school was not registered. PW1, the school inspector, said that according to the record of the Education Department, the school was not registered. This must be hearsay evidence.

13. It has been clearly stated in Chappel v. Director of Public Prosecutions [1989] 89 Cr. App. R. 82 that where a defendant by his plea denied that he was the offender, each step in the prosecution case must be formally proved. In my view, short of a formal admission under the Criminal Procedure Ordinance, the Appellant is entitled to challenge on this issue.

Manager

14. I now turn to the question of the manager. "Manager" is defined in s.3 as a person who manages or takes any part in the management of a school or the activities of the pupils of a school. In my view, there clearly was evidence showing that the Appellant was the manager of the school within s.3. At p.17 of the transcript, at the first visit, although the visit was not within the period covered under the first charge, the Appellant received the inspectors, and when he was asked about the registration of the Centre, he told PW1 that he was making preparation for registration. In the visit on 30th September 1996, the Appellant was not at the Centre but returned on request by the school inspector. When asked whether the inspector could interview the teachers, the Appellant suggested that they should be interviewed one by one. PW1 also said in his evidence that the Appellant told him that he was one of the operators of the Centre. The evidence revealed that the Appellant took part in the management of the school. However, as the prosecution had not established that the school was an unregistered school, the appeal on the first charge should be allowed.

2nd Charge

15. I will now turn to the second charge. Section 87(3)(f) provides that any person who employs or permits any person to teach in a school in contravention of s.42(1) or (2) shall be guilty of an offence. Section 42 provides that no person shall teach in a school unless he is a registered teacher or a permitted teacher.

16. The Appellant had clearly agreed by way of admitted fact that the teacher was not a registered teacher, however, there was no concession that the teacher was not a permitted teacher. The charge as framed was that the Appellant employed Mr Kong who was not a registered or permitted teacher. Mr Kong might not be a registered teacher but was he a permitted one? In my view, s.87(3)(f) requires the prosecution to prove the negative averment that the teacher was not a permitted teacher.

17. More importantly in this case it had not been proved that the teacher was employed by the Appellant. The Appellant might well be a manager of the school but there was no evidence that the teacher was his employee. What was produced at the trial was a Certificate of Business Registration of the Centre. This document does not carry the matter further. It is the particulars of business registration which would be of relevance to a case of this type. It is necessary to show whether the Centre was operated by a limited company, by a firm of partners, or by the Appellant as a sole proprietor. In the absence of evidence, I cannot see how a teacher employed by the Centre could be treated as an employee of the Appellant.

18. Likewise the prosecution had failed to prove the elements of offence of the second charge, and the appeal is allowed on the second charge as well.

Conclusion

19. The appeal is allowed on both charges and the convictions are quashed.