The following are added—
“SCHEDULE 1 [s. 40BP]
1. Interpretation In this Schedule—
“transferee” (受讓方) means the incorporated management committee of the relevant school;
“transition date” (交接日) means the date on which the incorporated management committee of the relevant school is established.
2. Pre-incorporation contract Where—
(a) any person enters into a contract with another party for the supply of goods or service for the benefit of a school before the transition date;
(b) he enters into the contract with the written authority of the management committee or school sponsoring body of the school;
(c) before he enters into the contract he advises the other party that the incorporated management committee of the school will on the commencement of the transition date become a party to the contract by virtue of this section;
and
(d ) the contract is subsisting immediately before the transition date, the following provisions apply on the commencement of the transition date—
(e) the committee shall for all purposes substitute for the person as the party to the contract and shall be regarded as having always been the party;
( f ) all rights and liabilities of the person under the contract shall vest in the committee; and
(g) the person shall cease to be a party to the contract.
3. Continuance of certain contracts
(1) This section applies to a contract that is—
(a) entered into by the supervisor, principal or sponsoring body or a manager of a school (“original party”) with a person before 1 January 2005;
(b) entered into for the supply of goods or service by the person for the benefit of the school (but not any other school); and
(c) is subsisting immediately before the transition date.
(2) Upon the commencement of the transition date—
(a) (if the money paid in consideration of the goods or service is provided by the Government) the transferee shall, with the consent of the person, for all purposes substitute for the original party as the party to the contract, and shall be regarded as having always been the party;
(b) (if the money paid in consideration of the goods or service is not provided by the Government) the sponsoring body or, where the sponsoring body so decides, the transferee shall, with the consent of the person, for all purposes substitute for the original party as the party to the contract, and shall be regarded as having always been the party.
(3) Where a substitution takes place under subsection (2)—
(a) all rights and liabilities of the original party under the contract shall vest in the transferee or sponsoring body, as may be appropriate; and
(b) the original party shall cease to be a party to the contract.
4. Continuance of employment
(1) Without limiting section 2, a person who is employed to work for a school immediately before the date of the establishment of the incorporated management committee of the school under section 40BN of this Ordinance shall on the commencement of that date be deemed to have been employed by the committee on the same terms and conditions of the employment subsisting immediately before that date.
(2) The incorporated management committee shall, for the purposes of the continuation of the employment referred to in subsection (1), be regarded as having always been the employer of the person since the commencement of the employment and, accordingly, there is no break or interruption in the employment only because of the operation of this section.
(3) The—
(a) employment may be terminated; or
(b) terms and conditions of the employment may be varied,
on or after the transition date in the same manner and to the same extent as immediately before that date.
5. Delivery of books, etc.
(1) On the transition date, the transferee becomes the owner of all books, accounts, receipts or other document (however compiled, recorded or stored) that are relevant to the functions and powers of the transferee.
(2) All such books, accounts, receipts or other document shall be delivered to the transferee immediately after that date by the person who has the care and custody of them otherwise than pursuant to a lawful authority.
(3) Any person who contravenes subsection (2) shall be guilty of an offence and shall be liable on conviction to a fine at level 3 and to imprisonment for 3 months.
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SCHEDULE 2 [ss. 40BR & 40CB]
1. Interpretation In this Schedule—
(a) where this Schedule applies under section 40BR—
(i) “transferor” means the school management company of the relevant school;
(ii) “transferee” means the incorporated management committee of the relevant school;
(iii) “transition date” means the date on which the incorporated management committee of the relevant school is established;
(b) where this Schedule applies under section 40CB—
(i) “transferor” means the incorporated management committee of the relevant school;
(ii) “transferee” means the school management company of the relevant school;
(iii) “transition date” means the date on which the incorporated management committee of the relevant school is dissolved.
2. Vesting of properties, etc.
(1) All properties, rights, obligations and civil liabilities of the transferor which are subsisting immediately before the transition date shall on the commencement of the transition date vest in the transferee.
(2) For the purposes of the vesting effected by subsection (1), the transferee shall be regarded as having always been the transferor since the establishment of the transferor.
(3) The Stamp Duty Ordinance (Cap. 117) shall not apply to any vesting effected by subsection (1).
(4) The vesting in the transferee of any properties, rights, obligations and liabilities under subsection (1) does not constitute an assignment, transfer, devolution, parting with possession, dealing with or other disposition of such properties, rights, obligations and liabilities for the purposes of any instrument concerning or affecting such properties, rights, obligations and liabilities.
(5) A provision contained in any deed, contract or other document made by the transferor—
(a) prohibiting or requiring any consent or approval for the vesting effected by subsection (1); or
(b) to the effect that a default shall occur or be deemed to occur, or any right or obligation shall cease, as a result of the vesting effected by subsection (1), is deemed to have been waived.
(6) The vesting in the transferee of an interest in land effected by subsection (1) does not—
(a) operate as a breach of covenant or condition against alienation;
(b) give rise to any right of pre-emption, right of forfeiture, right of re-entry, option, damages or other right of action affecting land;
(c) invalidate or discharge any contract or security;
(d ) operate so as to merge any leasehold interest in the reversion expectant on it;
or
(e) extinguish, affect, vary, diminish or postpone any priority of that interest, whether under the Land Registration Ordinance (Cap. 128), at law or in equity.
(7) The transferee shall register or cause to be registered in the Land Registry—
(a) where this Schedule applies under section 40BR, a copy of the certificate of incorporation issued to it under section 40BN(1) or 40BX(1) of this Ordinance; or
(b) where this Schedule applies under section 40CB—
(i) a copy of the certificate of incorporation issued to it under the Companies Ordinance (Cap. 32);
(ii) a copy of the approval granted in respect of the school under section 40CB; and
(iii) a copy of the text of section 40CB and this Schedule.
3. Continuance of employment
(1) A person who is employed to work for a school immediately before the transition date shall on the commencement of the transition date be deemed to have been employed by the transferee on the same terms and conditions of the employment subsisting immediately before that date.
(2) The transferee shall be regarded as having always been the employer of the person since the commencement of the employment referred to in subsection (1) and, accordingly, there is no break or interruption in the employment only because of the operation of this section.
(3) The—
(a) employment may be terminated; or
(b) terms and conditions of the employment may be varied,
on or after the transition date in the same manner and to the same extent as immediately before that date.
4. Validity of acts already commenced
(1) Nothing in this Ordinance affects the validity of anything done by, on behalf of or in relation to the transferor before the transition date.
(2) If anything is in the process of being done by, on behalf of or in relation to the transferor immediately before the transition date, it may be carried on or completed by, on behalf of or in relation to the transferee.
5. Continuance of pending civil proceedings
(1) Civil proceedings commenced by or against the school or the transferor before the transition date may be continued or enforced on or after that date by or against the transferee as if the transferee was a party to the proceedings.
(2) All claims and defences that were available to the school or the transferor are available to the transferee.
6. Evidence: books and documents
(1) Subject to Article 11(2)(g) of the Hong Kong Bill of Rights set out in the Hong Kong Bill of Rights Ordinance (Cap. 383), books and other documents which would, before the transition date, have been evidence in respect of any matter for or against any one or more of the following parties, are admissible in evidence in respect of the same matter for or against the transferee—
(a) the school;
(b) any person in his capacity as the supervisor or a manager or former manager of the school; or
(c) the transferor.
(2) In this section, “documents” (文件) has the same meaning as in section 46 of the Evidence Ordinance (Cap. 8).
7. Effect of existing agreements, etc.
(1) This section applies to any agreement, arrangement or contract made or entered into or transaction effected by, on behalf of or in relation to the transferor before the transition date.
(2) If an agreement, arrangement, contract or transaction to which this section applies is in force or effective immediately before the transition date or it is to take effect on or after that date, it shall have effect as from that date as if it were made, entered into or effected by, on behalf of or in relation to the transferee.
8. Record of property
The record of property of the transferor, which is in the form of an entry in the books of a bank, company or other corporation immediately before the transition date, shall be transferred in those books by the bank, company or corporation to the transferee upon the transferee’s request.
9. Delivery of books, etc.
(1) On the transition date, the transferee becomes the owner of all books, accounts, receipts or other document (however compiled, recorded or stored) relating to the management of the school in the control or possession of the transferor.
(2) All such books, accounts, receipts or other document shall be delivered to the transferee immediately after that date by the person who has the care and custody of them otherwise than pursuant to a lawful authority.
(3) Any person who contravenes subsection (2) shall be guilty of an offence and shall be liable on conviction to a fine at level 3 and to imprisonment for 3 months.”.
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SCHEDULE 3 [ss. 40AB & 40AC]
SPECIFIED SCHOOLS
School Name School Address
Confucius Hall Middle School 77 Caroline Hill Road, Hong Kong Fung Kai No. 2 Secondary School 15 Jockey Club Road, Sheung Shui, New
Territories
Hong Kong Sam Yuk Secondary School 17A Ventris Road, Hong Kong International Christian Quality Music 372 Shun Ning Road, Sham Shui Po, Secondary and Primary School Kowloon
ISF Academy 373 Queen’s Road East, Wanchai, Hong Kong
Kowloon Sam Yuk Secondary School 52 Boundary Street, Mongkok, Kowloon Mu Kuang English School 55 Kung Lok Road, Kwun Tong, Kowloon Phoenix International School 5 Tonkin Street, Shamshuipo, Kowloon Po Leung Kuk Choi Kai Yau School 6 Caldecott Road, Shamshuipo, Kowloon Sam Yuk Middle School 1111 Clear Water Bay Road, Sai Kung, New
Territories
S.K.H. All Saints’ Middle School 11 Pak Po Street, Kowloon
Tai Po Sam Yuk Secondary School 2 Tai Po Tau Drive, Tai Po, New Territories United Christian College 9 & 11 Tong Yam Street, Tai Hang Tung,
Shamshuipo, Kowloon”.
Education Regulations 35. Interpretation
Regulation 2 of the Education Regulations (Cap. 279 sub. leg.) is amended by adding—
“ “responsible person” (負責人) means, in relation to—
(a) school without IMC, the supervisor of the school;
(b) an IMC school, the principal of the school;”.