Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

龐孟婷 v 華人廟宇委員會

Judgment Cited authorities 2 Cited in 1 Precedent Map Related
Vincent
Judgment Date05 June 2019
Neutral Citation[2019] HKCFI 1457
Year2019
Judgement NumberHCAL506/2018
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL506/2018 龐孟婷 v. 華人廟宇委員會

HCAL 506/2018

[2019] HKCFI 1457

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 506 OF 2018

_____________

BETWEEN
龐孟婷 Applicant
and
華人廟宇委員會 Intended Respondent
竹林禪院（曼華堂） Interested Party

_____________

Before: Hon Lok J in Court
Date of Hearing: 9 May 2019
Date of Judgment: 5 June 2019

___________________

JUDGMENT

___________________

1. This is an application for leave to apply for judicial review. Since I had some queries about the exact nature of the application, I decided to hold an inter parte hearing for the leave application.

2. In the Amended Form 86, the Applicant applies for leave to apply for judicial review against an alleged omission of the Chinese Temple Committee (“CTC”) in contravention of ss 5, 6, and 8 of the Chinese Temple Ordinance (Cap 153) (“CTO”), and against the CTC for confirming to the Applicant the change of membership in Man Wa Tong (曼華堂) (“MWT”) on 26 February 2018.

3. The Applicant seeks, inter alia, the following relief:

(i) a declaration that the CTC’s confirmation as to the information received from MWT regarding the change of its members is unlawful and invalid;

(ii) a declaration that the CTC must ensure compliance with the Articles of MWT (“Articles”) when verifying the membership of MWT and handling the management of Chuk Lam Sim Yuen (竹林禪院) (“Temple”) by MWT;

(iii) an order that the CTC do fulfil its public duties under the CTO, and to take all necessary actions to ensure that the change of membership of MWT and the management of the Temple do comply with the Articles.

4. I refuse the application for leave on 2 grounds:

(i) there is no “decision” amenable to judicial review; and

(ii) the court should not entertain this application for judicial review as other channels providing for redress have not been exhausted.

5. Before I deal with these grounds, I first provide the background of this case.

Background

6. This case arises out of a complaint relating to the alleged mismanagement of the affairs of the Temple and MWT.

7. The Temple is a monastery founded by the late “釋融秋法師”, who was the Applicant’s grandfather, and managed by the members of MWT.

8. According to the Applicant, she is a devout Buddhist who actively participates in the functions of the Temple. Apart from her grandfather who was the founder of the Temple, her mother also assisted with the clerical duties and looked after the elderlies in the Temple.

9. MWT is administered by its disciples and their successors, forming a t’ong (“Tong”), to hold and manage the affairs and properties of the Temple. The operation of the Tong and the management of the Temple are governed by the Articles made on 14 June 1985 by the then disciples and successors.

10. Pursuant to s 5 of the CTO, which requires the registration of all Chinese temples, the Temple has been registered as a “Chinese temple” under the CTO shortly after January 1948. Further, the Tongis exempted from tax liability as a “charitable institution or trust of a public character” by the Inland Revenue Department under s 88 of the Inland Revenue Ordinance (Cap 112) since 5 August 1985.

11. In the judgment in the related case of 釋照月(Sik Chiu Yuet) v Secretary for Justice[1], L Wong J has provided a detailed account about the history and the operation of MWT and the Temple.

12. As a statutory body under the CTO, the CTC is vested with the statutory power and duty, subject to the provisions of the CTO, to control the management of Chinese temples in Hong Kong and the administration of their funds.

13. S 6 of the CTO prohibits any person from taking any part in the establishment or maintenance of any Chinese temple established or maintained contrary to the provisions of the CTO:

“No person shall—

(a) take any part in the establishment or maintenance of any Chinese temple established or maintained contrary to any of the provisions of this Ordinance or of any regulation made thereunder; or

(b) take any part in the management or in the service of any such Chinese temple; or

(c) derive any profit from the revenue of any such Chinese temple; or

(d) knowingly supply any false or inaccurate information for the purposes of this Ordinance.”

14. The CTC is established under s 7(1) of the CTO, which reads:-

“Notwithstanding anything in the Secretary for Home Affairs Incorporation Ordinance (Cap. 1044), the revenues, funds, investments and properties of all Chinese temples shall, subject to the provisions of section 8, be under the absolute control of a committee which shall be known as the Chinese Temples Committee.”

15. The key power granted to the CTC under the CTO for control of the Chinese temples is found in s 7(6), which reads:-

“In order to make such control effective it shall be lawful for the Chinese Temples Committee, without prejudice to any powers that the committee may possess, to require any person other than the Secretary for Home Affairs Incorporated, who may be in possession or control of, or in whom may be vested, any property held on behalf of or for the purposes of any Chinese temple, to transfer or assign any such property to the Secretary for Home Affairs Incorporated.”

16. Furthermore, the CTC is empowered to make regulations under s 3 for, inter alia: (i) the registration, management, control and inspection of Chinese temples; (ii) the management, control and audit of the funds of Chinese temples. The CTC has only made 2 regulations so far, namely: (i) Chinese Temples Fund Regulations (Cap. 153A); and (ii) General Chinese Charities Fund Directions (Cap. 153B). Neither of these regulations is directly related to the registration, management, control, or inspection of Chinese temples.

No “decision” amenable to judicial review

17. I have some difficulty in understanding what exactly is the “decision” that is the subject of the challenge for judicial review. Apparently, the complaint is that the CTC, by issuing the letter to the Applicant dated 26 February 2018 (“the Letter”) in reply to her enquiry about the membership of MWT, had wrongly confirmed the lawfulness of its membership change.

18. If that is the case, the complaint is totally misconceived. There was nothing in the Letter which indicated that the CTC had confirmed the lawfulness of the membership change. In reply to the Applicant’s enquiry about the membership of MWT, the Letter only stated that: (i) according to the record of the CTC, the Temple sent a letter to the CTC dated 19 July 2014 stating that it had by then 6 members; (ii) according to an email in December 2017, the Temple notified the CTC that it had by then 4 members.

19. Mr Ma, counsel for the CTC, submits that the CTC, not being a Government department, was not obliged to comply with the Code on Access to Information. The provision of the information contained in the Letter was only done in the public interest of promoting transparency of public bodies.

20. No matter what was the purpose of...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT