EDUCATION (AMENDMENT) ORDINANCE 2004
CONTENTS
Section Page
1. Short title and commencement ... A1511 Education Ordinance
2. Interpretation ... A1511 3. Permanent Secretary to maintain registers ... A1515 4. Exemption of schools from Ordinance ... A1517 5. Grounds for refusal to register school ... A1517 6. Certificate of registration or provisional registration ... A1517 7. Approval of Permanent Secretary required for post secondary education ... A1517 8. Grounds for cancellation of registration or provisional registration of school A1519 9. Part heading amended ... A1519 10. Subheading repealed ... A1519 11. Grounds for refusal to register manager ... A1519 12. Grounds for cancellation of registration of manager ... A1523 13. Heading substituted
PART IIIA
MANAGEMENT OFSCHOOLS WITHOUTINCORPORATED
MANAGEMENTCOMMITTEE ... A1525 14. Section added
31A. Application of Part IIIA ... A1525 15. Subheading repealed ... A1525 16. Part IIIB added
PART IIIB
MANAGEMENT OF IMC SCHOOLS
General provisions
40AA. Application of certain provisions of this Part ... A1525 40AB. Interpretation of Part IIIB ... A1525 40AC. Secretary may amend Schedule 3 ... A1529 40AD. Incorporated management committee to manage school ... A1529
40AE. Functions of sponsoring body and incorporated management committee ... A1529 40AF. Powers of incorporated management committee ... A1531 40AG. Power of sponsoring body over employment of teaching staff ... A1535 40AH. Certain property not to vest in incorporated management
committee ... A1535
40AI. Irregular establishment, etc. do not affect contract ... A1537 Supervisor
40AJ. Supervisor ... A1537 40AK. Functions of supervisor ... A1539
Composition of incorporated management committee and office of managers
40AL. General requirement of composition ... A1541 40AM. Nomination of sponsoring body manager ... A1543 40AN. Nomination of teacher manager ... A1543 40AO. Nomination of parent manager ... A1543 40AP. Nomination of alumni manager ... A1545 40AQ. Nomination of independent manager ... A1547 40AR. Exemption from composition requirements ... A1549 40AS. Provisions applicable to alternate managers ... A1551 40AT. Endorsement of application for registration as manager ... A1553 40AU. Filling of vacancies to maintain full composition ... A1553
40AV. Parent manager or independent manager ceases to hold office
under certain circumstances ... A1555 40AW. Resignation, etc. of manager ... A1555 40AX. Vacation of office of managers ... A1555
Operation of incorporated management committee
40AY. Constitution of incorporated management committee ... A1557 40AZ. Delegation of functions ... A1561 40BA. Permanent Secretary’s nominee may attend meeting ... A1561 40BB. Accounts of incorporated management committee ... A1561 40BC. Service of documents ... A1565 40BD. Restrictions on execution of judgment by writ of fieri facias ... A1565 40BE. Dissolution ... A1565
Provisions relating to managers
40BF. Declaration of pecuniary or other personal interests annually ... A1567 40BG. Disclosure of pecuniary or other personal interests ... A1567 40BH. Register of interests ... A1571 40BI. Rights and liability of manager and protection ... A1571
Section Page
Establishment of incorporated management committee:
operating school
40BJ. Establishment of incorporated management committee in respect
of operating DSS school or specified school ... A1573 40BK. Submission for the purpose of establishment of incorporated
management committee in respect of operating school ... A1573 40BL. Approval of draft constitution ... A1575 40BM. Approval of list of proposed managers ... A1575 40BN. Incorporation ... A1575 40BO. Effect of certificate of incorporation ... A1577
40BP. Transitional provisions for establishment of incorporated management committee ... A1577 40BQ. Dissolution of school management company ... A1577 40BR. Transitional provisions for dissolution of school management
company ... A1579 40BS. Failure to establish incorporated management committee ... A1579
Establishment of incorporated management committee:
planned school
40BT. Establishment of incorporated management committee in respect
of planned DSS school ... A1581 40BU. Submission for the purpose of establishment of incorporated
management committee in respect of planned school ... A1581 40BV. Approval of draft constitution ... A1583 40BW. Approval of list of proposed managers ... A1583 40BX. Incorporation ... A1583 40BY. Effect of certificate of incorporation ... A1585 40BZ. Failure to establish incorporated management committee ... A1585 40CA. Pre-incorporation contract ... A1585
Provisions applicable where a school ceases to be an IMC school
40CB. An aided IMC school may become a DSS school without IMC ... A1587 17. Heading substituted
PART IIIC
PERMANENTSECRETARY MAYAPPOINTMANAGERS ... A1589 18. Appointment of managers by Permanent Secretary ... A1589 19. Approval of first principal of school ... A1589 20. Grounds for withdrawal of approval of principal ... A1589 21. Approval of subsequent principals ... A1589
Section Page
22. Section added
57A. Selection of principal of IMC school ... A1591 23. Functions of principal ... A1591 24. Performance of functions of principal by candidate ... A1593 25. Application for permission to continue to employ serving teachers or
principals of aided schools ... A1593 26. Permanent Secretary to serve notice of decision on person adversely affected A1593 27. Permission to operate school or to act etc. pending appeal ... A1593 28. Sponsoring body’s views take priority over management committee’s ... A1595 29. Power of Permanent Secretary to order attendance at primary school or
secondary school ... A1595 30. Power of Permanent Secretary to direct remedial measures ... A1595 31. Powers of Permanent Secretary to close school or give directions in cases of
danger or misconduct ... A1595 32. Regulations ... A1595 33. Offences and penalties ... A1597 34. Schedules added
Schedule 1 ... A1601 Schedule 2 ... A1603 Schedule 3 Specified schools ... A1607
Education Regulations
35. Interpretation ... A1609 36. Approval for roof playgrounds ... A1609 37. Structural requirements ... A1609 38. Pupils using roof playgrounds to be under supervision ... A1609 39. Numbers of pupils allowed on a roof playground or balcony ... A1609 40. Limitation of activities on roof playgrounds. ... A1611 41. Safety precautions ... A1611 42. Notice requiring safety equipment against fire ... A1611 43. Refreshment places ... A1611 44. Sanitary condition ... A1611 45. Fees other than inclusive fee prohibited ... A1611 46. Formal receipts ... A1613 47. Prohibition of collections without permission of Permanent Secretary ... A1613 48. Part amended ... A1613 49. Constitution of school management committees ... A1613 50. Regulation added
75A. Constitution of incorporated management committee ... A1615
Section Page
51. Part heading added PART XII
APPOINTMENT OF TEACHERS ... A1615 52. Regulation substituted
76. Teachers’ appointment or dismissal needs approval by managers A1617 53. Permanent Secretary may disapprove ... A1617 54. List of holidays to be posted ... A1617 55. Regulation substituted
85. Specifications for exit door ... A1619 56. Size of classes ... A1619 57. Hours of instruction ... A1619 58. Syllabus and time-table subject to approval of Permanent Secretary ... A1619 59. Regulation substituted
93. Restriction on training for teachers ... A1619 60. Non-resident pupils ... A1619 61. Expulsion and suspension of pupils ... A1619 62. Expelled pupil not to enter school premises without permission ... A1619 63. Business or trading operation ... A1621 64. Regulation added
99B. Restriction on use of profits arising from business or trading
arrangement by incorporated management committee ... A1621 65. Offences ... A1621 66. Penalties ... A1625 67. Appeals to Appeals Board ... A1625
Grant Schools Provident Fund Rules
68. Interpretation ... A1625 Subsidized Schools Provident Fund Rules
69. Interpretation ... A1625 70. Substitution of “management authority” for “supervisor” ... A1627 71. Substitution of “responsible person” for “supervisor” ... A1627 72. Substitution of “manager” for “registered manager” ... A1627
Societies Ordinance
73. Persons to which the Ordinance does not apply ... A1627 Schedule 1 Substitute “management authority” for “supervisor” ... A1627 Schedule 2 Substitute “responsible person” for “supervisor” ... A1629 Schedule 3 Substitute “manager” for “registered manager” ... A1629
Section Page
An Ordinance to amend the Education Ordinance to make provision for establishment of incorporated management committees to manage certain types of schools, to delete an obsolete reference to the Crown, to provide for further grounds on which registration of school managers may be refused or cancelled, to provide that a permission or approval granted under certain provisions of the Education Regulations may be granted on the Permanent Secretary for Education and Manpower’s own motion or upon an application and to provide for incidental, consequential and transitional matters.
[1 January 2005]
Enacted by the Legislative Council.
1. Short title and commencement
(1) This Ordinance may be cited as the Education (Amendment) Ordinance 2004.
(2) This Ordinance shall come into operation on 1 January 2005.
Education Ordinance 2. Interpretation
Section 3 of the Education Ordinance (Cap. 279) is amended—
(a) by renumbering it as section 3(1);
(b) in subsection (1)—
(i) by repealing the definition of “management committee” and substituting—
“ “management committee” (校董會), in relation to a school without IMC, means the managers of the school;”;
HONG KONG SPECIAL ADMINISTRATIVE REGION ORDINANCENO. 27 OF2004
TUNG Chee-hwa Chief Executive
22 July 2004 L.S.
(ii) by repealing the definition of “manager” and substituting—
“ “manager” (校董), in relation to a school—
(a) means a person who is registered as a manager of the school under section 29 or under either of the repealed Ordinances; and
(b) subject to sections 40AL and 40AS, includes an alternate manager within the meaning of section 40AB;”;
(iii) by repealing the definition of “registered manager”;
(iv) by repealing the definition of “sponsoring body” and substituting—
“ “sponsoring body” (辦學團體), in relation to a school, means a society, organization or body (whether incorporated or not) which is approved in writing by the Permanent Secretary to be the sponsoring body of the school;”;
(v) in the definition of “supervisor”, by repealing everything after “means” and substituting—
“—
(a) in relation to a school without IMC, a manager who is—
(i) approved as the supervisor of the school under section 34 or 38(2) or under either of the repealed Ordinances; or
(ii) approved as the acting supervisor of the school under section 38A(2);
(b) in relation to an IMC school, a manager who is—
(i) appointed or elected under section 40AJ(2) as the supervisor of the school;
or
(ii) appointed or elected under section 40AJ(3) as the acting supervisor of the school.”;
(vi) by adding—
“ “IMC school” (設有法團校董會學校) means a school in respect of which an incorporated management committee is established under Part IIIB;
“incorporated management committee” (法團校董會), in relation to a school, means the incorporated management committee established under section 40BN or 40BX in respect of the school;
“management authority” (管理當局) means, in relation to—
(a) a school without IMC, the supervisor of the school;
(b) an IMC school, the incorporated management committee of the school;
“school management company” (學校管理公司), in relation to a school, means a company designated as such under subsection (2);
“school without IMC” (不設法團校董會學校) means a school other than an IMC school;”;
(c) by adding—
“(2) The Permanent Secretary may by notice published in the Gazette designate any company which is incorporated under the Companies Ordinance (Cap. 32) for the purposes of operating a school as stated in its memorandum of association as a school management company.
(3) A notice published under subsection (2) is not subsidiary legislation.”.
3. Permanent Secretary to maintain registers Section 8 is amended—
(a) in subsection (1)—
(i) in paragraph (d )(ii), by repealing “; and” and substituting a semicolon;
(ii) by adding—
“(da) a register of incorporated management committees, in which shall be entered—
(i) the name of every incorporated management committee; and
(ii) in respect of each incorporated management committee, the name and tenure of office of each manager and the category of manager specified in section 40AL(2) to which he belongs; and”;
(b) by adding—
“(3) The entries referred to in subsection (1)(da)(i) and (ii) shall be made available in such manner as the Permanent Secretary thinks fit for public inspection to—
(a) enable any member of the public to ascertain whether he is dealing with a manager; and (b) ensure transparency and accountability of the
incorporated management committee.”.
4. Exemption of schools from Ordinance Section 9 is amended—
(a) by adding before subsection (1)—
“(1A) In this section, “interested persons” means, in relation to a school—
(a) the owners of the school;
(b) the managers of the school;
(c) the teachers of the school;
(d ) persons who are not owners, managers or teachers of the school but manage or take part in the management of the school; or (e) the students of the school.”;
(b) in subsection (1), by repealing “owners, managers, teachers and pupils” and substituting “interested persons”;
(c) in subsection (1)(a), by repealing everything after “the Government” and substituting a semicolon;
(d ) in subsections (2), (3)(b) and (5)(c), by repealing “owners, managers, teachers or pupils” and substituting “interested persons”.
5. Grounds for refusal to register school
Section 14(1)(i) and ( j ) is amended by adding “or incorporated management committee (as may be appropriate)” after “committee”.
6. Certificate of registration or provisional registration
Section 18(3) is amended by repealing “he” and substituting “it”.
7. Approval of Permanent Secretary required for post secondary education
Section 18A is amended—
(a) in subsection (1), by repealing “he” and substituting “it”;
(b) in subsection (2), by repealing “A supervisor” and substituting
“The supervisor of a school without IMC”;
(c) by adding—
“(3) If an incorporated management committee contravenes subsection (1) with the consent or connivance of a manager of the school, the manager shall be guilty of an offence and shall be liable on conviction to a fine at level 3 and to imprisonment for 3 months.”.
8. Grounds for cancellation of registration or provisional registration of school Section 22(1) is amended—
(a) in paragraph (d ), by repealing “on the supervisor or any other manager of the school”;
(b) in paragraph (e), by repealing “management committee is not managing the school” and substituting “school is not being managed”.
9. Part heading amended
The heading to Part III is amended by adding “REGISTRATION OF” before
“MANAGERS”.
10. Subheading repealed
The subheading “Registration of managers of schools” before section 27 is repealed.
11. Grounds for refusal to register manager Section 30 is amended—
(a) in subsection (1)—
(i) by repealing paragraph (d );
(ii) in paragraph (e), by repealing “; or” at the end and substituting a full stop;
(iii) by repealing paragraph ( f );
(b) by adding—
“(1A) The Permanent Secretary may refuse to register an applicant as a manager of—
(a) a school if the applicant—
(i) is a bankrupt within the meaning of the Bankruptcy Ordinance (Cap. 6) or has entered into a voluntary arrangement under that Ordinance; or
(ii) has previously been convicted in Hong Kong or elsewhere of a criminal offence punishable with imprisonment;
(b) a school if the applicant is under the age of 18 years;
(c) a school if—
(i) the applicant has attained the age of 70 years and he fails to produce a medical certificate issued by a registered medical practitioner within 2 months before the date of his application certifying that the applicant is physically fit to perform the functions of a manager; or
(ii) the applicant is under the age of 70 years and he fails to produce, upon a request by the Permanent Secretary, a medical certificate issued by a registered medical practitioner after the date of such request certifying that the applicant is physically fit to perform the functions of a manager; or
(d ) an IMC school or a school in respect of which a submission has been made under section 40BK or 40BU if the applicant has been registered as a manager of 5 or more schools.”;
(c) in subsection (2), by repealing everything after “applicant as a manager of ” and substituting—
“—
(a) a school without IMC if it appears to the Permanent Secretary that the applicant is not acceptable as a manager of the school to the majority of the managers; or
(b) an IMC school if—
(i) the applicant is on a list of proposed managers which the Permanent Secretary refuses to approve under section 40BM or 40BW; or
(ii) subject to any exemption granted under section 40AR, the registration of the applicant as a manager of the school will render the composition of the incorporated management committee of the school inconsistent with the constitution of the committee.”.
12. Grounds for cancellation of registration of manager Section 31 is amended—
(a) in subsection (1)—
(i) in paragraph (b), by repealing “30(1)(a) to (e)” and substituting “30(1) or (1A)”;
(ii) in paragraph (e)(iii), by repealing “; or” and substituting a semicolon;
(iii) by repealing paragraph ( f );
(iv) by adding—
“(g) (where the school is an IMC school) if the Permanent Secretary receives a notice in writing from the incorporated management committee of the school that—
(i) the manager has been absent without the consent of the committee from all meetings of the committee in a school year; and
(ii) the manager has been given due notice to attend those meetings;
(h) if the manager fails to produce, upon request by the Permanent Secretary, a medical certificate issued by a registered medical practitioner after the date of such request certifying that the manager is physically fit to perform the functions of a manager;
(i ) if he receives a notice under section 40AX as regards the manager; or
( j ) if the manager contravenes section 40BF.”;
(b) in subsection (2)—
(i) by repealing paragraph (a);
(ii) by adding—
“(aa) if he receives a notice under section 39(2)(a) or 40AK(1)(b)(i) in respect of the manager;
(ab) if he receives a notice under section 40AW as regards the manager; or”.
(c) by adding—
“(2A) The Permanent Secretary shall cancel the registration of a manager of a school without IMC if it appears to him that the manager is no longer acceptable as a manager of the school to the majority of the managers of the school.”.
13. Heading substituted
The subheading “Management committees” before section 32 is repealed and the following substituted—
“PART IIIA
MANAGEMENT OF SCHOOLS WITHOUT INCORPORATED
MANAGEMENT COMMITTEE”.
14. Section added
The following is added before section 32—
“31A. Application of Part IIIA
This Part applies to a school without IMC.”.
15. Subheading repealed
The subheading “Supervisors” before section 34 is repealed.
16. Part IIIB added
The following are added after section 40—
“PART IIIB
MANAGEMENT OF IMC SCHOOLS
General provisions
40AA. Application of certain provisions of this Part Sections 40AD to 40BI apply to IMC schools only.
40AB. Interpretation of Part IIIB
In this Part, unless the context otherwise requires—
“alternate manager” (替代校董) means an alternate parent manager, alternate sponsoring body manager or alternate teacher manager;
“alternate parent manager” (替代家長校董) means a manager who is nominated under section 40AO for registration as such;
“alternate sponsoring body manager” (替代辦學團體校董) means a manager who is nominated for registration as such under section 40AM;
“alternate teacher manager” (替代桝員校董) means a manager who is elected under section 40AN for registration as such;
“alumnus” (校友), in relation to a school, means a person who has been a pupil of the school but is no longer such a pupil;
“alumni manager” (校友校董) means a manager who is nominated for registration as such under section 40AP;
“bi-sessional school” (上下午班制學校) means a school the registration of which under this Ordinance covers an A.M. session and a P.M.
session using the same school premises;
“independent manager” (獨立校董) means a manager who is nominated for registration as such under section 40AQ;
“parent” (家長), in relation to a pupil, includes—
(a) a guardian of the pupil; and
(b) a person who is not the parent or guardian of the pupil but has the actual custody of the pupil;
“parent manager” (家長校董) means a manager who is nominated for registration as such under section 40AO;
“recognized alumni association” (認可校友會), in relation to a school, means an association recognized under section 40AP(1);
“recognized parent-teacher association” (認可家長桝師會), in relation to a school, means a parent-teacher association recognized under section 40AO(1);
“scheduled opening date” (預計開課日期), in relation to a school, means the scheduled date on which the school commences operation as agreed between the sponsoring body and the Permanent Secretary;
“specialist staff” (專責人員), in relation to a special school, means—
(a) any person employed to work for the school as a school social worker, speech therapist, physiotherapist, occupational therapist, occupational therapist assistant, educational psychologist, nurse, warden, assistant warden, houseparent-in-charge, houseparent, programme worker or brailling staff; and
(b) any other person employed to work in the school as may be specified by the Permanent Secretary in the code of aid for special schools for the purposes of this definition;
“specified school” (指明學校) means a school specified in Schedule 3;
“sponsoring body manager” (辦學團體校董) means a manager who is nominated for registration as such under section 40AM;
“teacher” (桝員) means a permitted teacher or registered teacher employed in a school—
(a) to occupy a teacher post in the establishment of staff provided for in the code of aid for primary schools, code of aid for secondary schools or code of aid for special schools;
or
(b) for a term for not less than 12 months to perform teaching duties or other duties directly related to teaching;
“teacher manager” (桝員校董) means a manager who is nominated for registration as such under section 40AN.
40AC. Secretary may amend Schedule 3
(1) The Secretary for Education and Manpower may by notice published in the Gazette amend Schedule 3.
(2) A school shall not be specified in Schedule 3 unless—
(a) the school is a primary school or secondary school;
(b) the school is neither an aided school nor a DSS school;
(c) the school is a school without IMC;
(d ) the school is not operated for the purpose of making profit;
(e) the sponsoring body of the school is not a profit-making organization;
( f ) the school receives any subsidy from the Government; and (g) the school is, in the opinion of the Permanent Secretary,
financially sound.
40AD. Incorporated management committee to manage school
When an incorporated management committee has been established in respect of a school, the school shall, subject to section 40AE, be managed by the incorporated management committee.
40AE. Functions of sponsoring body and incorporated management committee
(1) The sponsoring body of a school shall be responsible for—
(a) meeting the cost of furnishing and equipping the new school premises of the school to, where applicable, standards as recommended by the Permanent Secretary;
(b) setting the vision and mission for the school;
(c) maintaining full control of the use of funds and assets owned by it;
(d ) deciding the mode of receiving government aid;
(e) ensuring, through the sponsoring body managers, that the mission is carried out;
( f ) giving general directions to the incorporated management committee in the formulation of education policies of the school;
(g) overseeing the performance of the incorporated management committee; and
(h) drafting the constitution of the incorporated management committee.
(2) The incorporated management committee of a school shall be responsible for—
(a) formulating education policies of the school in accordance with the vision and mission set by the sponsoring body;
(b) planning and managing financial and human resources available to the school;
(c) accounting to the Permanent Secretary and the sponsoring body for the performance of the school;
(d ) ensuring that the mission of the school is carried out;
(e) ensuring that the education of the pupils of the school is promoted in a proper manner; and
( f ) school planning and self-improvement of the school.
40AF. Powers of incorporated management committee
(1) An incorporated management committee of a school may do anything that appears to it to be necessary or expedient for the purposes of, or in connection with, the proper management, administration or operation of the school in accordance with the vision and mission and the general educational policies and principles set by the sponsoring body of the school.
(2) Without limiting subsection (1), an incorporated management committee of a school may—
(a) take on lease, purchase or otherwise acquire, and hold, manage and enjoy property of any description, and sell, let or otherwise dispose of the same;
(b) subject to section 40AG, employ such teaching staff and non-teaching staff as it thinks fit and determine the terms and conditions of service of such staff;
(c) engage the service of such professionals or other persons as it thinks fit and determine their remuneration;
(d ) use and dispose of the funds and assets owned by it;
(e) handle funds and assets received from the Government in the capacity of a trustee;
( f ) open and operate bank accounts and invest its funds in such manner and to such extent as it thinks fit;
(g) borrow money in such manner and on such security or terms as may be expedient;
(h) apply for and receive any grant in aid on such terms as may be expedient;
(i ) solicit and receive gifts or donations, whether on trust or otherwise, and act as trustee of moneys or other property vested in it on trust;
( j ) enter into any contract, agreement or arrangement; and (k) do such other things as are provided for by this Ordinance
or as are necessary for, or incidental or conducive to, the furtherance of the object of the school.
(3) The exercise of the power of an incorporated management committee shall be subject to—
(a) the provisions of this Ordinance or any other law;
(b) guidelines (if any) issued by the sponsoring body of the school for—
(i) raising funds (including borrowing money); or
(ii) entering into any contract, agreement or arrangement involving funds other than funds received from the Government;
(c) (in the case of an aided school) the relevant code of aid;
(d ) (in the case of a DSS school) the terms and conditions upon which the school joined the Direct Subsidy Scheme administered by the Permanent Secretary; and
(e) (in the case of a non-aided school in receipt of Government subsidies) the terms and conditions for receiving subsidies from the Government (if applicable).
(4) Without prejudice to the generality of subsection (3), if a person is employed by the incorporated management committee of an aided school to occupy a post in the establishment of staff provided for in the relevant code of aid, his terms and conditions of service determined pursuant to subsection (2)(b) must conform with those provided for in the relevant code of aid in relation to the post.
(5) In this section, “relevant code of aid” means—
(a) in relation to an aided school which is a primary school, the code of aid for primary schools;
(b) in relation to an aided school which is a secondary school, the code of aid for secondary schools;
(c) in relation to an aided school which is a special school, a practical school or a skills opportunity school, the code of aid for special schools.
40AG. Power of sponsoring body over employment of teaching staff
(1) The sponsoring body of a school which is also the sponsoring body of another school—
(a) may request—
(i) the incorporated management committee of the first- mentioned school to terminate the employment of a person as the principal of the school; and
(ii) the incorporated management committee of the other school to recommend for approval the person to be the principal of the school under section 53 or 57;
(b) may request—
(i) the incorporated management committee of the first- mentioned school to terminate the employment of a person as a teacher of the school; and
(ii) the incorporated management committee of the other school to employ the person as a teacher of the same rank of the school.
(2) A sponsoring body shall not request the taking of any action under subsection (1) unless—
(a) the action is conducive to the professional development of the person concerned;
(b) the action is necessary to avoid or alleviate over- establishment of staff due to a reduction of classes in the school concerned; or
(c) the Permanent Secretary approves the request upon—
(i) an application by the sponsoring body; and (ii) other good cause being shown to his satisfaction.
(3) An incorporated management committee shall take such action within its lawful authority as is necessary for the compliance with a request made of it under subsection (1).
40AH. Certain property not to vest in incorporated management committee
(1) For the avoidance of doubt, it is declared that no property belonging to and provided by the Government, the sponsoring body or any other person for the operation of a school shall, by reason only of the establishment of the incorporated management committee of the school, become property of the committee.
(2) The incorporated management committee of a school shall hold any subsidy received from the Government in accordance with the code of aid for primary schools, the code of aid for secondary schools or the code of aid for special schools (as may be applicable) as trustee.
40AI. Irregular establishment, etc.
do not affect contract
The validity of a contract entered into by an incorporated management committee shall not be affected by any irregularity or defectiveness in—
(a) the election or nomination of any person for registration as manager of the school;
(b) the registration of any manager of the school as such; or (c) the composition or establishment of the committee.
Supervisor 40AJ. Supervisor
(1) A school shall have a supervisor.
(2) The supervisor of a school—
(a) must be a manager of the school;
(b) must be—
(i) appointed by the sponsoring body of the school; or (ii) elected by the managers of the school,
in accordance with the constitution of the incorporated management committee of the school; and
(c) shall hold and vacate office as such in accordance with the constitution.
(3) If the supervisor of a school is unable to perform his functions during a period of not less than 28 days due to absence from Hong Kong or illness—
(a) (in the case of an appointed supervisor) the sponsoring body of the school shall appoint another manager of the school as the acting supervisor to act in the place of the supervisor during the period;
(b) (in the case of an elected supervisor) the other managers shall elect amongst themselves an acting supervisor to act in the place of the supervisor during the period.
(4) The principal or a teacher of the school shall not be the supervisor or act as the supervisor.
(5) The incorporated management committee shall give notice in writing of the assumption of office—
(a) of the first supervisor to the Permanent Secretary within 14 days after its establishment; and
(b) of any subsequent supervisor to the Permanent Secretary within 14 days after his election or appointment.
(6) A notice given under subsection (5) shall contain the English and Chinese names of the supervisor and such other information as the Permanent Secretary may specify.
40AK. Functions of supervisor
(1) The supervisor of a school shall—
(a) preside over the meetings of the incorporated management committee of the school;
(b) within one month from the happening of any of the following events, give notice of the event to the Permanent Secretary—
(i) any person ceases to be a manager of the school;
(ii) the principal of the school ceases to hold office as such;
(iii) any teacher of the school is employed to teach or commences teaching at the school;
(iv) any teacher of the school ceases to hold office as such;
or
(v) there is a change in any particulars furnished under this Ordinance in respect of the tenancy of the school premises;
(c) sign the statement of accounts of the committee;
(d ) within one month of—
(i) the receipt or issue of a writ or other originating process (except one issued in proceedings in the Small Claims Tribunal within the meaning of the Small Claims Tribunal Ordinance (Cap. 338) and the Minor Employment Claims Adjudication Board within the meaning of the Minor Employment Claims Adjudication Board Ordinance (Cap. 453)) by the committee; or
(ii) the handing down of the judgment in the proceedings to which such writ or originating process relates,
give notice in writing of the event to the Permanent Secretary; and
(e) perform such functions as may be provided for in the constitution of the committee.
(2) A notice given under subsection (1)(b) in respect of an event shall—
(a) be in writing;
(b) specify the date of the event; and
(c) specify the name and address of the person to whom the notice relates and, if he is a registered or permitted teacher, his registration number or permitted teacher reference number.
(3) A notice required to be given by the incorporated management committee shall be given in the name of and signed by the supervisor.
Composition of incorporated management committee and office of managers 40AL. General requirement of composition
(1) An incorporated management committee shall, subject to the other provisions of this Ordinance, be constituted in accordance with the constitution of the committee.
(2) Without prejudice to subsection (1), the composition of an incorporated management committee as provided for in its constitution shall be—
(a) subject to subsection (3), such number of sponsoring body manager as the school sponsoring body may nominate;
(b) the principal of the school, who shall be an ex-officio manager;
(c) not less than one teacher manager;
(d ) not less than—
(i) (in the case of a school other than a bi-sessional school) one parent manager; or
(ii) (in the case of a bi-sessional school) one parent manager for each of the A.M. session and P.M.
session;
(e) one or more alumni managers where such manager or managers is or are nominated;
( f ) not less than one independent manager;
(g) not more than one alternate sponsoring body manager;
(h) where the constitution allows the nomination of not more than one teacher manager, one alternate teacher manager;
and
(i) where the constitution allows the nomination of—
(i) not more than one parent manager, one alternate parent manager; or
(ii) (in the case of a bi-sessional school) not more than one parent manager for the A.M. session and one parent manager for the P.M. session, one alternate parent manager for the A.M. session and one alternate parent manager for the P.M. session.
(3) The numbers of sponsoring body manager shall not exceed 60%
of the maximum number of managers that the incorporated management committee may have under its constitution.
(4) In calculating the maximum number of managers for the purposes of subsection (3), an alternate manager or a manager appointed under section 41 shall not be counted.
(5) No manager shall serve in an incorporated management committee in more than one capacity mentioned in any paragraph of subsection (2).
40AM. Nomination of sponsoring body manager
The sponsoring body of a school may nominate—
(a) such number of persons for registration as sponsoring body manager of the school as may be provided for in the constitution of the incorporated management committee of the school; and
(b) a person for registration as alternate sponsoring body manager of the school.
40AN. Nomination of teacher manager
(1) The principal of a school shall nominate such number of teachers of the school for registration as teacher manager or alternate teacher manager of the school as may be provided for in the constitution of the incorporated management committee of the school.
(2) A person nominated under subsection (1)—
(a) must be a teacher of the school;
(b) must not be the principal of the school;
(c) must be elected in that behalf in an election—
(i) held pursuant to the constitution of the incorporated management committee of the school;
(ii) in which all teachers of the school have equal voting right and right of candidature;
(iii) the voting for which is conducted by secret ballot; and (iv) the system of which is otherwise fair and transparent.
(3) In this section, “teachers” includes, in relation to a special school, the specialist staff of the school.
40AO. Nomination of parent manager
(1) The incorporated management committee of a school may recognize one body of persons (however described) as recognized parent- teacher association for the purposes of making nomination under subsection (4).
(2) Notwithstanding subsection (1), the incorporated management committee of a bi-sessional school may recognize—
(a) one body of persons (however described) as recognized parent-teacher association in respect of the A.M. session of the bi-sessional school; and
(b) another body of persons (however described) as recognized parent-teacher association in respect of the P.M. session of the bi-sessional school,
for the purposes of making nomination under subsection (4).
(3) A body of persons shall not be recognized under subsection (1) unless under its constitution only—
(a) parents of current pupils of the school; or (b) serving teachers of the school,
may elect or become office-bearers of the body.
(4) A recognized parent-teacher association may nominate such number of persons for registration as parent manager or alternate parent manager of the school as may be provided for in the constitution of the incorporated management committee of the school.
(5) A person nominated under subsection (4)—
(a) must be a parent of a current pupil of the school;
(b) must not be a teacher of the school; and
(c) must be elected in that behalf in an election—
(i) conducted by the recognized parent-teacher association of the school;
(ii) in which all parents of the current pupils of the school have equal voting right and right of candidature;
(iii) the voting for which is conducted by secret ballot; and (iv) the system of which is otherwise fair and transparent.
40AP. Nomination of alumni manager
(1) The incorporated management committee or sponsoring body of a school, as may be provided for in the constitution of the committee may recognize one body of persons (however described) as recognized alumni association for the purposes of making nomination under subsection (4).
(2) Notwithstanding subsection (1), the incorporated management committee or sponsoring body of a bi-sessional school, as may be provided for in the constitution of the committee may recognize—
(a) one body of persons (however described) as recognized alumni association in respect of the A.M. session of the bi- sessional school; and
(b) another body of persons (however described) as recognized alumni association in respect of the P.M. session of the bi- sessional school,
for the purposes of making nomination under subsection (4).
(3) A body of persons shall not be recognized under subsection (1) unless under its constitution—
(a) its membership is open to all alumni of the school;
(b) only the alumni of the school may elect or become office- bearers of the body; and
(c) the system of election held for the purposes of making nomination under subsection (4) is fair and transparent.
In this subsection, a reference to school includes a reference to the A.M.
session or P.M. session of a bi-sessional school.
(4) A recognized alumni association may nominate such number of persons for registration as alumni manager of the school as may be provided for in the constitution of the incorporated management committee of the school.
(5) If no person is nominated under subsection (4) in respect of a school, the incorporated management committee may nominate such number of persons for registration as alumni manager of the school as may be provided for in its constitution.
(6) A person nominated under subsection (4) or (5)—
(a) must be an alumnus of the school; and (b) must not be a teacher of the school.
40AQ. Nomination of independent manager
(1) The incorporated management committee of a school may nominate such number of persons for registration as independent manager of the school as may be provided for in the constitution of the committee.
(2) The following persons shall not be nominated under subsection (1)—
(a) a teacher or (where applicable) specialist staff of the school;
(b) a parent of a current pupil of the school;
(c) an alumnus of the school; or (d ) a person who is—
(i) a member;
(ii) the spouse or a grand-parent, parent, brother, sister, child or grand-child of a member; or
(iii) an employee,
of the governing body (however described) of the sponsoring body of the school.
40AR. Exemption from composition requirements
(1) The first independent manager of a school may be registered as such at any time within one year from the establishment of the incorporated management committee of the school.
(2) If the incorporated management committee of a school is established under section 40BX—
(a) the first teacher manager of the school shall be nominated for registration as such at any time within one year from the establishment of the committee; and
(b) the first parent manager of a school shall be nominated for registration as such at any time within 3 years from the establishment of the committee.
(3) If the incorporated management committee of a school is established under section 40BN, the first parent manager of the school shall be nominated for registration as such at any time within 3 months from the establishment of the committee.
(4) An incorporated management committee may apply to the Permanent Secretary for exemption from any requirement of this Ordinance on its composition.
(5) An application under subsection (4) shall be made in such manner as the Permanent Secretary may specify.
(6) The Permanent Secretary shall decide an application under subsection (4) by—
(a) where he is satisfied that—
(i) the incorporated management committee has taken all reasonable steps to secure compliance with the requirement; and
(ii) it is reasonable in the circumstances of the case to grant the exemption applied for,
granting the exemption subject to such condition (if any) as he thinks fit; or
(b) where he is not satisfied in the manner prescribed in paragraph (a), refusing to grant the exemption.
(7) If—
(a) an application under this section is pending; or (b) an exemption has been granted under this section,
the Permanent Secretary shall not take any action under section 22, 31 or 41 in respect of the school concerned only because any requirement on the composition of the incorporated management committee is not complied with.
40AS. Provisions applicable to alternate managers
(1) Subject to this section, an alternate manager shall for all purposes be regarded as a manager.
(2) An alternate sponsoring body manager of a school shall not vote on any matter to be resolved by the incorporated management committee by voting unless—
(a) (in the case of a matter to be resolved at a meeting of the committee) any sponsoring body manager of the school is absent from the meeting;
(b) (in the case of a matter to be resolved otherwise) any sponsoring body manager of the school is, for any reason, unable to vote on the matter.
(3) An alternate teacher manager of a school shall not vote on any matter to be resolved by the incorporated management committee by voting unless—
(a) (in the case of a matter to be resolved at a meeting of the committee) no teacher manager of the school is present at the meeting;
(b) (in the case of a matter to be resolved otherwise) the school has no teacher manager for the time being.
(4) An alternate parent manager of a school shall not vote on any matter to be resolved by the incorporated management committee by voting unless—
(a) (in the case of a matter to be resolved at a meeting of the committee) no parent manager of the school is present at the meeting;
(b) (in the case of a matter to be resolved otherwise) the school has no parent manager for the time being.
(5) In ascertaining the majority of the managers of a school for the purposes of section 56(1)(d ) or 57(1)(d )—
(a) an alternate sponsoring body manager shall not be counted unless there is a vacancy of sponsoring body manager of the school for the time being;
(b) an alternate teacher manager shall not be counted unless the school has no teacher manager for the time being; and (c) an alternate parent manager shall not be counted unless the
school has no parent manager for the time being.
(6) For the purposes of establishing a quorum of a meeting of incorporated management committee—
(a) an alternate sponsoring body manager of the school shall not be counted unless there is a vacancy of sponsoring body manager of the school for the time being;
(b) an alternate teacher manager of the school shall not be counted unless no teacher manager of the school is present at the meeting; and
(c) an alternate parent manager of the school shall not be counted unless no parent manager of the school is present at the meeting.
(7) An alternate manager shall not only because of his being a manager incur any liability for an act done pursuant to a voting of the incorporated management committee in which he has not participated by virtue of subsection (2), (3) or (4).
(8) An alternate teacher manager and a teacher manager of a school shall be elected in the same manner for nomination for registration as a manager.
(9) An alternate parent manager and a parent manager of a school shall be elected in the same manner for nomination for registration as a manager.
(10) In subsections (4) and (6), a reference to school includes a reference to the A.M. session or P.M. session of a bi-sessional school.
40AT. Endorsement of application for registration as manager
If a person is nominated for registration as a manager of a school under this Part and he applies for such registration, his application shall be—
(a) endorsed by the body or person that nominates him; and (b) (where he is on the list of proposed managers referred to in section 40BM(1)(a) or 40BW(1)(a)) endorsed by the sponsoring body in such manner as the Permanent Secretary may specify.
40AU. Filling of vacancies to maintain full composition
(1) For the purposes of this section, an incorporated management committee fails to maintain its full composition if by reason of any vacancy in the office of a manager, its composition does not comply with the provisions of this Part and its constitution.
(2) The incorporated management committee shall, within three months from the date on which the failure to maintain full composition arises—
(a) ensure that a person qualified to fill the vacancy is nominated for registration as a manager; and
(b) forward to the Permanent Secretary an application by the person for registration as a manager.
(3) The Permanent Secretary may extend the period mentioned in subsection (2) if the incorporated management committee so requests on good grounds within the period.
(4) For the purposes of subsection (2), a person is qualified to fill the vacancy if he is nominated for registration as a manager in the same manner as the manager who ceased to hold the office concerned.
40AV. Parent manager or independent manager ceases to hold office under certain
circumstances
(1) If a parent manager ceases to be a parent of a current pupil of the school in a school year, his term of office as a manager shall continue until its expiry or the end of the school year, whichever is the earlier.
(2) If in a school year an independent manager becomes a person referred to in section 40AQ(2)(a), (b) or (d ), his term of office as a manager shall continue until its expiry or the end of the school year, whichever is the earlier.
40AW. Resignation, etc. of manager (1) If a manager—
(a) resigns from his office as a manager in accordance with the constitution of the incorporated management committee; or (b) passes away,
the committee shall give a written notice of the event to the Permanent Secretary.
(2) If—
(a) the principal of a school ceases to be the principal; or
(b) a teacher manager or alternate teacher manager of a school ceases to be employed in the school,
he shall for the purposes of subsection (1) be deemed to have resigned from his office as a manager in accordance with the constitution of the incorporated management committee of the school.
40AX. Vacation of office of managers
(1) An incorporated management committee shall, upon receiving a request under subsection (2), (3), (4) or (5), issue a notice in writing to the Permanent Secretary as regards the cancellation of the registration of the manager specified in the request.
(2) If—
(a) the teachers and (where applicable) specialist staff of a school pass a resolution that any teacher manager or alternate teacher manager of the school is not suitable to continue to hold office as such; and
(b) the resolution is passed in a manner which is, as far as reasonably practicable, similar to the manner in which the manager is elected for nomination,
the principal of the school shall make a written request to the incorporated management committee to issue a notice under subsection (1) in respect of the manager.
(3) The recognized parent-teacher association of a school may make a written request to the incorporated management committee to issue a notice under subsection (1) in respect of any parent manager or alternate parent manager of the school specified in the request.
(4) The recognized alumni association of a school may make a written request to the incorporated management committee to issue a notice under subsection (1) in respect of any alumni manager of the school specified in the request.
(5) The sponsoring body of a school may make a written request to the incorporated management committee to issue a notice under subsection (1) in respect of any sponsoring body manager of the school specified in the request.
(6) A request made under subsection (3), (4) or (5) shall not have effect unless it is authorized by a resolution passed by the maker of the request—
(a) on the ground that the manager concerned is not suitable to continue to hold office; and
(b) in a manner which is, as far as reasonably practicable, similar to the manner in which the manager concerned is elected for nomination.
(7) The incorporated management committee of a school may issue a written notice to the Permanent Secretary as regards the cancellation of the registration of any independent manager of the school.
(8) In subsections (3) and (4), a reference to school includes a reference to the A.M. session or P.M. session of a bi-sessional school.
Operation of incorporated management committee 40AY. Constitution of incorporated
management committee
(1) An incorporated management committee shall—
(a) have a written constitution which is approved by the Permanent Secretary; and
(b) conduct its affairs in accordance with its constitution.
(2) An incorporated management committee may by resolution amend its constitution in the manner provided for in the constitution.
(3) An amendment to the constitution of an incorporated management committee—
(a) shall be lodged with the Permanent Secretary; and
(b) shall not take effect before the expiry of one month after it is so lodged.
(4) The Permanent Secretary may, by notice in writing to the incorporated management committee concerned, object to an amendment lodged with him before the amendment takes effect. The reason for the objection shall be specified in the notice.
(5) Subject to section 66(1)(ba), an amendment objected to by the Permanent Secretary shall be void.
(6) The Permanent Secretary may, by notice to an incorporated management committee, require its constitution to be amended in such manner as he may specify to secure compliance with law and general education policies. The committee shall amend its constitution accordingly.
(7) Subsections (3) and (4) do not apply to an amendment under subsection (6).
(8) If an objection under subsection (4) to an amendment of constitution which is intended to take effect on a certain date (“original effective date”) is reversed under section 64, the amendment shall—
(a) where the Permanent Secretary does not appeal against the reversal under section 65 within the period of 14 days referred to in that section, take effect—
(i) at the expiry of that period; or (ii) on the original effective date, whichever is the later;
(b) where the Permanent Secretary appeals against the reversal under section 65 and the reversal is upheld, take effect on—
(i) the date on which the reversal is upheld; or (ii) the original effective date,
whichever is the later.
(9) The incorporated management committee shall, as soon as practicable after any amendment to its constitution takes effect, lodge a copy of its constitution as amended with the Permanent Secretary.
40AZ. Delegation of functions
(1) An incorporated management committee may, either generally or for a particular purpose, delegate any function conferred on it by this Ordinance (except section 40AE and regulation 76 of the Education Regulations (Cap. 279 sub. leg. A)) to any manager of the school.
(2) Where a manager performs a function conferred by this Ordinance on the incorporated management committee, the committee shall, unless the contrary is proved, be deemed to have delegated that function to that manager.
(3) Where there is a delegation under subsection (1), the manager shall—
(a) report to the incorporated management committee on any act done pursuant to the delegated function; and
(b) make such report at the meeting of the committee immediately following the doing of the act.
(4) A delegated function which is duly performed by a delegate shall be regarded as having been performed by the incorporated management committee.
(5) A function which has been delegated may be performed by the incorporated management committee notwithstanding the delegation.
40BA. Permanent Secretary’s nominee may attend meeting
If it appears to the Permanent Secretary that the attendance of a meeting of the incorporated management committee of the school by a public officer will be conducive to the operation and performance of the school—
(a) the Permanent Secretary may, by notice in writing to the committee, nominate the public officer to attend the meeting; and
(b) the public officer may attend the meeting and offer such advice at the meeting as he thinks fit.
40BB. Accounts of incorporated management committee
(1) An incorporated management committee shall—
(a) maintain proper books of account and other financial and accounting records as stipulated in—
(i) the code of aid for primary schools, the code of aid for secondary schools or the code of aid for special schools (as may be applicable); or
(ii) such instructions as may be given by the Permanent Secretary for the purposes of this paragraph from time to time;
(b) cause to be prepared for each accounting year of the committee statements of the accounts of the committee; and (c) submit the statement of accounts to the Permanent Secretary at such time and in such manner as the Permanent Secretary may specify.
(2) The statement of accounts mentioned in subsection (1) shall—
(a) include an income and expenditure account and balance sheet; and
(b) be authenticated by the signatures of the supervisor of the school and one other manager authorized by the incorporated management committee of the school to act for that purpose, either generally or specifically.
(3) An incorporated management committee shall appoint an accountant as the auditor.
(4) The auditor appointed under subsection (3) shall—
(a) audit the accounts prepared under subsection (1);
(b) report as to—
(i) whether such account and balance sheet present fairly the financial transactions of the incorporated management committee during the accounting year to which the account and balance sheet relate; and
(ii) the financial position of the incorporated management committee at the end of that year, subject to such qualification (if any) as he thinks fit;
(c) submit the report to the Permanent Secretary at such time as the Permanent Secretary may specify;
(d ) be entitled to require such information and explanations as he considers necessary for discharging his duties; and
(e) comply with such directions as may be given by the Permanent Secretary for the purposes of this paragraph from time to time.
(5) The incorporated management committee shall permit—
(a) the Permanent Secretary;
(b) any inspector of schools; or
(c) the auditor appointed under subsection (3),
to inspect the books of account and all vouchers, receipts, invoices, documents and records in the committee’s control which are relevant to the financial transactions of the committee.
(6) In this section, “accountant” (會計師) means a certified public accountant (practising) as defined in the Professional Accountants Ordinance (Cap. 50).
40BC. Service of documents
A document may be served on an incorporated management committee by leaving it at, or sending it by post to, the registered office of the committee.
40BD. Restrictions on execution of judgment by writ of fieri facias
In the execution of a judgment against an incorporated management committee of a school by writ of fieri facias, any property that is—
(a) located in the school premises; and
(b) used in connection with giving instructions to the pupils of the school,
shall not be seized.
40BE. Dissolution
On the cancellation of the registration or provisional registration of a school under section 22—
(a) the incorporated management committee shall be dissolved;
(b) the name of the committee shall be removed from the register of incorporated management committees; and
(c) the properties owned by the committee immediately before its dissolution shall be vested in the Permanent Secretary as the corporation sole constituted under the Permanent Secretary for Education and Manpower Incorporation Ordinance (Cap. 1098) who shall—
(i) as far as reasonably practicable, apply the properties to settle the liabilities (if any) of the committee which are outstanding immediately before its dissolution in such manner as he considers fair;
(ii) where after such settlement (if any) any property which was donated to the committee remains, return the property to the donor unless the donor indicated at the time of the donation that he did not wish to reclaim the property in the event of the dissolution of the committee;
(iii) where after such settlement or return (if any) any property remains, apply the property towards any purpose which is conducive to education in Hong Kong.
Provisions relating to managers 40BF. Declaration of pecuniary or other
personal interests annually
(1) A manager of a school shall, at least once in every 12 months, make to the incorporated management committee of the school a written declaration which—
(a) states the particulars of any pecuniary or other personal interest, direct or indirect, that he has in any matter that raises or may raise a conflict with his duties as a manager of the school; or
(b) states that he has no such interest.
(2) Within one month after a change occurs in any matter stated in a declaration, the manager who made the declaration shall make to the incorporated management committee another written declaration which states the change.
(3) A manager shall, if so required by the incorporated management committee, provide the committee with such further information as it thinks necessary to establish any particular contained in a declaration made by him.
(4) A manager shall not make a declaration under subsection (1) or (2) which he knows to be false or misleading in a material particular.
40BG. Disclosure of pecuniary or other personal interests (1) If—
(a) a manager has any pecuniary or other personal interest, direct or indirect, in a matter that is considered or is to be considered at a meeting of the incorporated management committee; and
(b) the matter appears to raise a conflict with the proper performance of the manager’s duties in relation to the consideration of the matter,
that manager shall disclose the nature of the interest at the meeting or (if he does not attend the meeting) by giving a notice in writing to the committee before the meeting.
(2) A disclosure under subsection (1) by a manager that—
(a) he or any nominee of him is a member of a specified company or other body;
(b) he is an officer or employee of a specified company or other body;
