LAU CHI FAI AND ANOTHER v. THE SECRETARY FOR JUSTICE AND ANOTHER

LAU CHI FAI AND ANOTHER v. THE SECRETARY FOR JUSTICE AND ANOTHER

Clause 57 of the Code of Aid for Secondary Schools is unenforceable against principals of aided secondary schools to the extent it purports to compel retirement at age 60 because it conflicts with the Education Ordinance which secures a principal's tenure until one of the statutory grounds in section 55 arises; the Director cannot rely on an undertaking between the Director and a management committee to override the statutory protections owed to principals (privity of contract), and therefore the Director may not withdraw approval under section 55/56 to implement clause 57 in the absence of the statutory grounds in section 56.

Citation
LAU CHI FAI AND ANOTHER v. THE SECRETARY FOR JUSTICE AND ANOTHER
Parties
Plaintiff (1st): Lau Chi Fai; Plaintiff (2nd): Wong Chi Kin (suing on behalf of Management Committee members); Defendant (1st): The Secretary for Justice; Defendant (2nd): The Director of Education
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
25 June 1999
Case Number
HCMP1198/1999
Procedural Posture
Miscellaneous Proceedings (originating Summons) / Judgment Handed Down (court of First Instance)
Outcome
Declarations (nisi) granted that clause 57 of the Code of Aid for Secondary Schools is unenforceable against principals of aided secondary schools; 1st Plaintiff entitled to hold office as principal until one or more circumstances in section 55(a)-(d) arise; Director not permitted to withdraw approval of the 1st...
Legal Topics
Security of Tenure, Retirement Age, Statutory Interpretation, Privity of Contract, Declaratory Relief, Judicial Review
Source Language
EN
Administrative Law Education Law Employment Law Public Law Security of Tenure Retirement Age Statutory Interpretation Privity of Contract +2 more

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Parties

Lau Chi Fai

Plaintiff (1st)

Wong Chi Kin (suing on behalf of Management Committee members)

Plaintiff (2nd)

The Secretary for Justice

Defendant (1st)

The Director of Education

Defendant (2nd)

Procedural Posture

Miscellaneous Proceedings (originating Summons) / Judgment Handed Down (court of First Instance)

Legal Issues

  1. 1 Whether clause 57 of the Code of Aid for Secondary Schools applies to principals of aided secondary schools
  2. 2 Whether clause 57 is unenforceable to the extent it conflicts with the Education Ordinance which grants principals security of tenure until age 70 absent specified grounds
  3. 3 Whether the Director can lawfully effect clause 57 by withdrawing approval under sections 55/56 of the Education Ordinance

Ratio Decidendi

Clause 57 of the Code of Aid for Secondary Schools is unenforceable against principals of aided secondary schools to the extent it purports to compel retirement at age 60 because it conflicts with the Education Ordinance which secures a principal's tenure until one of the statutory grounds in section 55 arises; the Director cannot rely on an undertaking between the Director and a management committee to override the statutory protections owed to principals (privity of contract), and therefore the Director may not withdraw approval under section 55/56 to implement clause 57 in the absence of the statutory grounds in section 56.

Court Disposition

Declarations (nisi) granted that clause 57 of the Code of Aid for Secondary Schools is unenforceable against principals of aided secondary schools; 1st Plaintiff entitled to hold office as principal until one or more circumstances in section 55(a)-(d) arise; Director not permitted to withdraw approval of the 1st...

Orders

  • Declaration nisi that section 57 of the Code of Aid for Secondary Schools is unenforceable against principals of aided secondary schools.
  • Declaration nisi that the 1st Plaintiff is entitled to hold and retain his office as principal of Sheng Kung Hui Tsang Shiu Tim Secondary School until one or more of the circumstances in section 55(a)-(d) of the Education Ordinance arise.