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HCMP 496/2017
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO.496 OF 2017
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IN THE MATTER OF seeking relief under Section 57A(b)(ii) of Trustee Ordinance, Cap. 29 |
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釋照月 |
Applicant |
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and |
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SECRETARY FOR JUSTICE |
1st Respondent |
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SECRETARY FOR HOME AFFAIRS |
2nd Respondent |
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AU-YEUNG SHUN MEI and POON KIT FONG, the Manageresses of MAN WA TONG (CHUK LAM SIM YUEN), acting for MAN WA TONG, all members of its managing board and its members |
3rd Respondent |
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| Before: Madam Justice Lisa Wong in Chambers |
| Date of Hearing: 25 July 2017 |
| Date of Handing Down Decision: 6 September 2017 |
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DECISION
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Application
1. These proceedings concerns the unincorporated association known as Man Wa Tong (曼華堂) set up and administered by eight of the disciples (“8 Disciples”)[1] of the late 釋融秋法師 (formerly named 龐日東) and their successors (“Tong”)[2] to hold and manage Chuk Lam Sim Yuen (竹林襌院)[3] (“Temple”) and properties associated with the Temple.
2. By the originating summons issued on 6 March 2017 and the inter partes summons filed on 22 March 2017, the applicant釋照月applies for a “better administration” order in respect of the Trust comprising the following aspects:
(1) intervention by the Secretary for Justice (the 1st respondent) (“SJ”) in his capacity as parens patriae (protector of charities);
(2) authorisation in writing by the Secretary for Home Affairs (the 2nd respondent) (“SHA”), pursuant to the Chinese Temples Ordinance (Cap 153) (“CTO”),[4] of an appropriate person to enter the Temple and investigate if there is evidence of contravention of the CTO; and
(3) restructuring of the Tong into a company limited by guarantee under the Companies Ordinance (Cap 622) to which assets under the Trust should be transferred on cy-près principles and to which professional persons, holders of public office and respected members of society should be appointed as directors.
3. The applicant so applies pursuant to s 57A(a)(iii) of the Trustee Ordinance (Cap 29) (“TO”).
4. Section 57A provides:
“Without prejudice to the generality of sections 56 and 57, the court may provide such relief, make such order, or give such direction, as it thinks just relating to a charitable trust upon an application made to it-
(a) by-
(i) 2 or more persons who have the consent in writing of the Secretary for Justice to make the application;
(ii) the Secretary for Justice; or
(iii) all or any one or more of the trustees or persons administering the trust, or persons claiming to administer the trust, or persons otherwise interested in the trust; and
(b) either-
(i) complaining of a breach of the trust or supposed breach of the trust; or
(ii) for the purposes of the better administration of the trust.”
(emphasis added)
5. It is the applicant’s case that the Tong holds the assets under its name on a charitable trust. And he takes these proceedings claiming to be a person otherwise interested in such trust within the meaning of section 57A(a)(iii).
6. Before the court is an application by the 3rd respondent, the Tong represented by two of its present managers, to strike out the originating summons on the ground that the applicant has no locus standi to bring the present proceedings (“Strikeout Application”).[5]
7. The Strikeout Application is supported by the SJ and the SHA.
8. The issues raised by the Strikeout Application are the proper construction of the words “persons otherwise interested in the trust” in section 57A(a)(iii) and whether the applicant is such a person in relation to the trust to which he says the assets under the Tong’s name is subject.
Matters considered
9. Before I go into the Strikeout Application, prior to the call-over hearing on 28 March 2017, in addition to his affirmation dated 6 March 2017 in support of the originating summons, the applicant has filed and served his 2nd affirmation dated 22 March 2017 in reply to the 3rd respondent’s joint affidavit dated 16 March 2017 (in which, as stated above, the Strikeout Application was raised). The applicant has, on the same date, made another affirmation (his 3rd) which is intended to be in further support of the originating summons.
10. At the call-over hearing, L Chan J gave, inter alia, the following directions to the applicant for the substantive hearing of the Strikeout Application:
(1) the filing and service of further evidence in opposition within 14 days; and
(2) the filing and service of written submission at least 5 working days before the hearing.
11. Pursuant to his Lordship’s directions, the applicant filed and served his 4th affirmation on 6 April 2017. In response, the 3rd respondent made their 2nd joint affidavit on 19 April 2017. This should have completed the parties’ evidence on the Strikeout Application.
12. Then, on 24 July 2017 (i.e. just one day prior to the hearing before me), the applicant made another affirmation (his 5th) and issued a summons inviting the court to take into account the matters set out in such affirmation in deciding the Strikeout Application. Although such evidence came late and without leave of the court, in the absence of opposition from the respondents, I will address the matters contained in the applicant’s 5th affirmation.
13. However, despite the aforesaid ample opportunity that he has had to adduce evidence to resist the Strikeout Application, the applicant has in his written submission dated 18 July 2017 referred to many matters in the nature of fact and evidence and annexed thereto 3 documents not contained in or exhibited to his said 5 affirmations.
14. Further, I have been informed by Mr Stony Chan, counsel for the 3rd respondent, that:
(1) His instructing solicitors, Messrs Au, Thong & Tsang (“ATT”), were informed by the applicant on 18 July 2017 that he had posted his written submission to them that day.
(2) ATT were informed by the Department of Justice (“DOJ”) (acting for the SJ and the SHA) on 19 July 2017 that it had received the applicant’s written submission by fax at 10:30 am on 18 July 2017.
(3) ATT obtained a copy of the applicant’s written submission from the DOJ on 19 July 2017.
(4) ATT did not receive the applicant’s written submission through the post until 11:18 am on 20 July 2017 (which was out of time as per L Chan J’s direction).
15. Although the 3rd respondent does not raise any complaint about the applicant’s written submission on the ground of lateness per se, I express disapproval of the manner in which the applicant effected service of his written submission on the 3rd respondent.
(1) First, L Chan J’s direction require the applicant to both lodge with the court and serve on all the respondents his written submission 5 working days before the hearing on 25 July 2017, which time expired on 18 July 2017. I find it peculiar why the applicant should send his written submission to the DOJ and ATT via different means which resulted in their receiving the document at different times. Anyway, where a party chooses to effect service of his written submission by post, service is not achieved at the time of posting but at the time when the submission is actually received by the opposite party. Having regard to the ordinary course of post, it cannot be assumed that the document would be received on the same day. A party who elects to serve his written submission by post must therefore put the document in the post sufficiently in advance of the deadline so as to ensure that it would in the ordinary course of post reach the opposite party before the deadline.
(2) Second, where, as in this case, the court received the written submission well before the opposite party did, the party effecting service would be in breach of the rule against unilateral communication with the court.
16. Mr Chan does, however, object on behalf of the 3rd respondent to the inclusion of new factual matters/allegations in the applicant’s written submission. The applicant has, in paragraph 3 of his list of issues dated 24 July 2017, in effect invited me to decide whether he should be allowed to rely on those matters/allegations.
17. I am with Mr Chan for the following reasons:
(1) These new matters/allegations have not been verified by affirmation.
(2) The applicant has had ample opportunity, but chose not, to adduce them properly by including them in the affirmations filed pursuant to L Chan J’s direction.
(3) The 3rd respondent was given only 3 working days’ notice of the same.
(4) Many of them are in any event irrelevant to the Strikeout Application.
Hence, in dealing with the Strikeout Application, I will look only to the applicant’s said 5 affirmations for evidence.
18. Lastly, according to paragraph 4 of the applicant’s said list of issues, the 3rd respondent has at the beginning of July 2017 through the Home Affairs Department refused to provide the applicant with certain documents about the organisation/structure of the Tong (“曼華堂組織部分文件”), without which the applicant says he or the public would have no way of knowing the details of the Tong’s organisation/structure. The applicant suggests (without making any formal application) that the court should order the 3rd respondent to disclose “其所有組織文件” to ensure a fair trial. The applicant has not particularised any such documents. However, if they relate to the organisation/structure of the Tong, I do not see their relevance at the stage when the court is considering the applicant’s standing to take these proceedings.
The Temple and the Tong
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