Ho Chor Ming and Others v. Hong Kong Chiu Chow Po Hing Buddhism Association Ltd
Read the full judgment text of HCMP 506/2013 on BabelCite. This High Court CFI judgment was delivered on 25 November 2015.
1. There are before me three summonses issued (i) by the 1 st to 3 rd applicants, (ii) the 4 th applicant; and (iii) the 5 th to 8 th applicants, essentially for declarations that they are members of the respondent company, ie Hong Kong Chiu Chow Po Hing Buddhism Association Limited (僑港潮州普慶念佛社有限公司). I shall refer to this company as “the Association”. Disputes about its membership have arisen because the Association’s books are incomplete and matters concerning its membership had been handled i
Cited by 1 case · Cites 6 cases
|
HCMP 506/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 506 OF 2013 ____________
____________
____________
_____________ DECISION INTRODUCTION 1.There are before me three summonses issued (i) by the 1st to 3rd applicants, (ii) the 4th applicant; and (iii) the 5th to 8th applicants, essentially for declarations that they are members of the respondent company, ie Hong Kong Chiu Chow Po Hing Buddhism Association Limited (僑港潮州普慶念佛社有限公司). I shall refer to this company as “the Association”. Disputes about its membership have arisen because the Association’s books are incomplete and matters concerning its membership had been handled in the past without leaving much formal record. 2.The Association has been made the respondent to these applications but it has not taken any active part in these proceedings. The receiver and manager of the Association, appointed by Harris J in August 2013, has investigated into the membership of the Association and reported his findings and conclusions in various affirmations filed. He has been excused from further attendance in the hearing of the applications. BACKGROUND 3.The Chiu Chow Buddhism Association (潮州念佛社) was established as an unincorporated association in around 1939 by a group of Hong Kong residents who were natives of Chiu Chow. In around 1948 it was registered with the Government and its name was changed to Hong Kong Chiu Chow Po Hing Buddhism Association (僑港潮州普慶念佛社). On 25 March 1975 it was incorporated under the previous Companies Ordinance (Cap 32) as a company limited by guarantee and not having a share capital, with the word “Limited” added to its name. As a company, therefore, the Association has only begun existence since March 1975. 4.The Association has since 1981 been recognised as a charitable institution within the meaning of section 88 of the Inland Revenue Ordinance (Cap 112). The objects of the Association are to promote and advance Buddhism and undertake charitable work. 5.The evidence in this case has referred to the many laudable charitable acts of the Association, such as distributing food and blankets in the wake of natural disasters and making donations to Tung Wah Hospital Group and for other causes. Amongst other things, the Association operates a place of Buddhist worship at its premises in No. 20 Ma Chai Hang Road, Wong Tai Sin, Kowloon which was built in around 1984. In 1987, the Association set up a centre for the elderly in Shatin. The Association also organised Buddhist activities such as prayers and offerings during the Ullambana Festival. 6.A dispute has arisen among certain individuals involved in the affairs of the Association and the dispute was brought to a head at the adjourned annual general meeting of the Association held on 5 November 2012. At that meeting, one group of persons attending took the position that certain candidates had been duly nominated by the outgoing 12th Board and elected as the 13th Board (“the Nominated Board”), while another group of persons attending took the position that a different group of candidates had been elected directors of the Association (“the Competing Board”). There was an overlap between the two Boards, there being 11 individuals common to both, with the other 9 being different. As a result there was also a dispute as to who had control over the Association’s bank accounts. A report was made to the police and advertisements were put up by the opposing camps in different newspapers making rival declarations. 7.On 14 March 2013, the 1st applicant herein issued an originating summons seeking an order of the court under s. 114B of the previous Companies Ordinance (Cap. 32) that an extraordinary general meeting of the Association be convened for the election of directors, an order for the appointment of a receiver and manager pending such extraordinary general meeting and directions for the determination of the membership of the Association. 8.On 29 August 2013, Harris J appointed Mr Fok Hei Yu of FTI Consulting (Hong Kong) Limited as receiver and manager of the Association (“Receiver”), directed him to verify the register of members of the Association, and gave a direction that any person who claims to be a member but is not included in the verified register of members, or any member who disputes whether a person on the verified register is in fact a member, do have liberty to apply to the court for determination of such issues within 28 days of being notified by the Receiver of the names on the verified register. 9.After some investigation, on 8 April 2014, the Receiver wrote to various persons concerned setting out his findings with regard to their membership in the Association. These findings will be described further below. Suffice it at this stage to note that the Receiver effectively found that none of the persons claiming to be a member was in fact a member of the Association. The conclusion that there is in effect no member is, not surprisingly, of some concern to the persons hitherto involved in the affairs of the company, not least because the absence of members is a ground for winding up under s 177(1)(c) of the Companies (Winding-Up and Miscellaneous Provisions) Ordinance (Cap 32). 10.In May 2014, within the time stipulated in Harris J’s order of 29 August 2013, the three summonses now before me were taken out by the applicants in question. For present purposes, these summonses are all that I have been called upon to determine. 11.The eight applicants fall into three groups. Each of them claims to be a member of the Association. The 1st to 3rd applicants, represented by Mr Douglas Lam SC and Mr David Chen, oppose the applications of the 4th to 8th applicants but the only point they take in that respect is that it has not been shown that those applicants had been proposed and seconded by members of the Association to whom they were personally known. The 4th applicant, who has acted in person, takes a neutral stance as regards the applications of the other applicants. The 5th to 8th applicants, who have appeared by Mr James Cheng, do not oppose the other applicants’ applications. Indeed, Mr Cheng submitted that, on the evidence, all eight applicants are members of the Association. No one has sought to cross-examine the deponent of any of the affirmations placed before me. 12.The Receiver has received representations and completed questionnaires from additional persons other than the eight applicants. None of them has however issued an application, within the time prescribed by the order of Harris J, for determination of their membership, and accordingly they are not the subject matter of the hearing and determination of these applications. THE ARTICLES OF ASSOCIATION 13.There were seven subscribers to the memorandum of association when the Association was incorporated in 1975, namely: Chan Kok Hin, Cheng Ching Yu, Yu Chai Chuen, Ma Chiu Wan, Chau Cheuk Ming, Chong Hsu Kwong and Cheng Dit Sang. There is no dispute that they, as signatories to the memorandum and articles, were members of the Association by virtue of Art 3 of the articles of association at the time (see below). I shall refer to these seven persons, now all deceased, as “Founding Members”, although it is likely that they founded the company rather than the association as such. 14.The first set of articles of association of the Association were dated and signed by the Founding Members (“the 1975 Articles”). As far as membership is concerned, these articles provided as follows:
15.It can be seen that the 1975 Articles lay down four conditions for membership, designated by the Receiver as Conditions “A” to “D”, namely:
16.Art 11 provided that the affairs of the Association were to be managed by an Executive Committee with the supervision of a Supervisory Committee. Art 13 provided that the Executive Committee was to consist of 33 members with 5 reserves. Art 20(c) provided that the quorum for a meeting of the Executive Committee was one-fifth of the members of that committee, but not less than three. Art 21(e) provided that only a member of the Association who had been enrolled as such for at least one year was eligible to be elected as a member of the Executive Committee. Art 52 provided that the seven Founding Members were Permanent Members of the Executive Committee. 17.The articles of the Association had been amended over the years. The membership criteria and admission procedures set out in the articles as amended in 1983 and as amended in 2000 are the same as in the 1975 Articles. 18.A relevant change occurred in 2001, when new articles in Chinese were adopted (“the 2001 Articles”). So far as relevant the 2001 Articles provided as follows:
In English translation, as follows:
19.The relevant provisions in the articles as amended in 2002, 2006 and 2009 respectively (“2002 Articles”, “2006 Articles” and “2009 Articles”) are largely the same as the 2001 Articles. THE RECEIVERS’ CONCLUSIONS 20.The Receivers sent questionnaires to (i) 134 individuals whose names appear on one or both of the disputed lists of members, (ii) 99 individuals whose names appear as directors in the annual returns that had been filed by the Association with the Companies Registry since 1975, and (iii) 5 additional individuals who were said by some of the directors to be members. A total of 102 completed questionnaires were returned to the Receivers. 21.The Receivers concluded that neither of the two lists of members put forward by the 1st to 3rd applicants and the 4th to 8th applicants respectively should be regarded as the register of members of the Association, and that the register of members and indeed the company kit of the Association cannot be found. 22.The Receivers took the view that (a) only individuals admitted as members in full compliance with the articles can be regarded as members; (b) any non-compliance with the articles on the admission procedures would deprive a person of his rights as a member; and (c) an individual who fails to become a member because of non-compliance with the articles cannot acquire the right of a member merely because he had subsequently been treated in some respects as a member by the Association. 23.The Receivers came to the view that the Executive Committee and the 3-member committee mentioned in Art 11 and 4 of the 1975 Articles had never been appointed and never existed, and that therefore all the applicants whose status would be governed by the 1975 Articles (or the similar 1983 Articles or 2000 Articles), ie the 4th to 8th applicants, are not members of the Association. 24.As to the persons whose status would be governed by the 2001 Articles (or the similar subsequent articles), ie persons including the 1st to 3rd applicants herein, because the persons who proposed their applications for membership were in turn not shown to be members (because of the absence of the Executive Committee and the 3-member committee), they too cannot be regarded as members of the Association. THE PROPER APPROACH 25.It is unfortunate that the affairs of the Association are now beset by disputes over membership which have arisen from the lack of formal records and from the perhaps overly informal manner in which the Association has dealt with matters about membership. It is not uncommon to find that the way in which social, cultural or religious associations are run deviates from the requirements of company law, even though the associations have, for various reasons, been legally incorporated as companies. In these circumstances the court nevertheless has to apply to these associations the law applicable to companies generally, particularly where concepts of company law are concerned. 26.As stated by Judge Cooke in Hussain v Wycombe Islamic Mission and Mosque Ltd [2011] EWHC 971 (Ch) at §7: 27.The status of member is, of course, a matter governed by company law. It is a concept with specific legal content and entails significant legal consequences. Members have rights under the articles of association of the company as well as the Companies Ordinance. They have the right to receive accounts and the right to be notified of, to attend and to vote at general meetings. In the case of a company limited by guarantee, members also have potential liabilities, albeit limited in this case to $10 each. There are provisions in the Companies Ordinance and often also in the constitution of the company as to who the members are. The task of the court on the present applications is to determine whether the applicants are members. This is a question entirely separate and different from the question of who has made what contribution to the Association in the past. 28.S 28 of the predecessor Companies Ordinance (Cap 32) provided:
In s 2(1), “founder member” was defined to mean a person who has signed his name on a memorandum in accordance with s 4(1). S 28 has been substantially reproduced in s 112 of the new Companies Ordinance (Cap 622). This provision applies as much to a company limited by guarantee as it does to companies with share capital. 29.The register provided for in s 28 is the starting point of an inquiry such as the present but it does not exclude other evidence of membership. In Portal v Emmens (1876) 1 CPD 201, the Court of Common Pleas, in a judgment delivered by Lindley J, stated:
30.It is therefore to the register of members that I should first turn. S 95 of the old Companies Ordinance (Cap 32)[2] required every company to keep a register of members with particulars of, among other things, the names and addresses of the members, the date at which each person was entered in the register as a member, and the date at which any person ceased to be a member. It is common ground, however, that no such register with the requisite particulars is now before the court. 31.The 1st to 3rd applicants have adduced in evidence a list of 31 individuals together with their addresses and telephone numbers which the 1st applicant at one stage said was the Association’s register of members kept by a former accounting clerk, Mr Man. The list, however, does not specify the date at which anyone was entered as a member and so could not have been the register as required by s 28. No evidence has been adduced from Mr Man who is said to have kept the list. Further, the list does not include certain notable people such as Mr Chiu Sai Chiu (the 7th applicant), a member of the 12th Board and the Deputy Chairman of the Association. In the end Mr Lam SC did not contend that this is the register of members of the Association, nor did he place great weight on it. I note that this list includes the 1st to 3rd applicants and the 5th and 6th applicants, but not the 4th, 7th and 8th applicants. 32.The 4th applicant alleged that the Association did have a register of members but that it had been removed and retained by the 1st to 3rd applicants. This allegation is not substantiated by the evidence filed for the present applications and it would not be fair for me to pay any regard to it. 33.There is another list which was adduced by one Mr Yeung Muk Ching in an affirmation made in opposition to the earlier application for the appointment of receiver. It was a list of 117 individuals prepared by the Competing Board after the dispute had arisen. It is said that all the persons on that list received notices to attend general meetings and took part in members’ activities. Plainly this is not the statutory register of members and given that it was prepared after the dispute had arisen little weight can be placed on it. 34.I note that in the earlier annual returns of the Association, the number of members was stated as “unlimited”. In the annual return for 2004, the number of members was stated as 25. From 2005 to 2011, it was stated that the number of members was 200. While this might be an estimate rather than an exact figure, it is some indication of the order of magnitude of the group of persons considered by the Board to be members of the Association. 35.In the absence of a proper and reliable register of members, I need to turn to the articles to see what persons qualify as members of the Association and then try to determine in relation to each applicant whether the requirements for admission to membership had been satisfied. 36.Whether or not the requirements were complied with is a question of fact to be answered on a balance of probabilities, the burden being on each applicant to satisfy the court that those requirements had indeed been complied with in respect of him and that he is therefore entitled to be recognised as a member of the Association. In deciding that question the court takes into account not only the primary facts established by direct evidence but also facts supported by such inferences as the court considers may properly be drawn. 37.In deciding whether to draw particular inferences I need to see whether the matters to be inferred are probable, not whether it is the only possible inference that can reasonably be drawn. As stated in Luxton v Vines (1952) 85 CLR 352, 358 (quoted with approval in Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387 at §185):
See also Lai Keung v Jetwell Engineering Co (CACV 179/2010; 14 April 2011) at §25. 38.A number of other legal principles relating to members’ unanimous consent and estoppel were also relied upon by the applicants. I shall refer to them below in the context in which they arise on the facts. THE CIRCUMSTANCES OF THE APPLICANTS The 1st, 2nd and 3rd applicants 39.The 1st applicant’s case is that in about early 2009, Mr Chiu Chi Kae (“Mr Chiu”) wished to inject “new blood” into the Board of the Association and approached the 1st applicant to gauge his interest. After the 1st applicant indicated an interest, Mr Chiu made a proposal to the 11th Board that he be admitted as a member of the Association with immediate effect. The proposal was seconded by the 1st applicant’s father Mr Ho Nam Chuen and Mr Wong Kwok Loong (“Mr Wong”). The Board unanimously agreed to the proposal. The 1st applicant signed a written application (though he did not retain a copy) and paid a $1,000 membership fee in cash to Mr Chiu. 40.After his admission as a member, Mr Chiu invited the 1st applicant to, and he did, attend some meetings of the 11th Board in 2009 and 2010. On 12 September 2010, the 11th Board held a meeting chaired by Mr Chiu. He proposed that the 1st applicant be appointed to the 12th Board. Eventually the 11th Board resolved unanimously to appoint 20 individuals to the 12th Board, one of whom was the 1st applicant. 41.The 2nd applicant’s case is that he was approached by Mr Wong in about late 2007 who wanted to inject “new blood” into the Board. Mr Wong proposed to the 10th Board that the 2nd applicant be admitted as a member of the Association and this was seconded by Mr Chiu. The 10th Board unanimously agreed to the proposal. The 2nd applicant had submitted a written application for membership though he did not have a copy. He also paid a $1,000 membership fee in cash to Mr Chiu. On 5 October 2008, the 10th Board chaired by Mr Wong resolved to appoint 20 individuals to the 11th Board, one of whom was the 2nd applicant. 42.The 3rd applicant’s case is that in early 2009, Mr Chiu approached him with a view to getting him involved in the Board. After the 3rd applicant showed an interest, Mr Chiu proposed to the 11th Board that the 3rd applicant be admitted as a member of the Association. The proposal was seconded by Mr Ho Nam Chuen (the 1st applicant’s father) and Mr Wong. The 3rd applicant also recalled having submitted a written application for membership (though he had not retained a copy) and having paid a $1,000 membership fee in cash to Mr Chiu. 43.On 12 September 2010, the 11th Board, chaired by Mr Chiu, resolved unanimously to appoint 20 individuals to the 12th Board, one of whom was the 3rd applicant. 44.It can be seen that the case of the 1st to 3rd applicants depends on compliance with the version of the relevant articles since 2001 (see paragraph 18 above) and therefore on their establishing that Mr Wong and Mr Chiu, by whom they were proposed or seconded, were in turn members and directors of the Association at the material times. 45.Mr Wong was apparently appointed a director of the Association in 1975. He was listed as a director in the annual returns of the Association between 1975 (filed in 1978) and 2007. When Mr Wong was first appointed a director, the 1975 Articles were in force. The following provisions concerning the Executive Committee (which for all intents and purposes seems to be the board of directors of the Association) may be noted:
As shown in the annual return of the year 1975, there were indeed 33 directors of the Association. 46.Art 20(a) of the 1975 Articles also provided that the quorum for the General Meeting of the Association was 30 members personally present. 47.Further, art 21(e) stipulated that to be eligible for election as a member of the Executive Committee, a candidate must have been a member of the Association for at least one year. Mr Wong might well have been a “member” of the unincorporated association all along but since the Association was only incorporated in March 1975 he could not have been a “member” of the Association (in the sense used in company law) for one year before he was elected a director. 48.It seems to me a proper inference that the Founding Members, at a time when they comprised the entire membership of the Association and Executive Committee in 1975, admitted the other 26 persons as members. It is unlikely that the Founding Members would have wanted to appoint a non-member to the Executive Committee. Moreover, a General Meeting had a quorum requirement of 30 members, which supports the inference that the Founding Members intended to expand the membership beyond themselves. 49.In addition, the inference is that the Founding Members unanimously waived the requirement that a person must have been member for a year before being elected to the Executive Committee, which would be effective by virtue of the Duomatic principle[3]. Even without this inference, however, the appointment of these persons to the Executive Committee from 1977 onwards (after the initial 2-year term) would be beyond dispute as they had by then been members for over one year. 50.I think there is sufficient basis for finding that Mr Wong had been a member of the Association since 1975. 51.Mr Chiu was in a similar position to Mr Wong. He was also appointed a director of the Association as shown in the annual returns for the year 1975 up to 2011. For the same reasons I find that he had also been a member of the Association since 1975. 52.In the case of the 1st to 3rd applicants:
53.One of the Receiver’s concerns was that there was neither an Executive Committee nor a committee of 3 members for the purpose of approving any application for membership. But, as Mr Lam SC submitted, the effect of the 1975 Articles was that the Founding Members were from the beginning the Executive Committee. I agree that the inference should be drawn that they either formed a 3-member sub-committee on membership albeit without keeping proper records or they as sole members unanimously waived the requirement. 54.On this basis I find that the 1st, 2nd and 3rd applicants are all members of the Association. The 4th applicant 55.The 4th applicant is the younger brother of the 5th applicant. They are both sons of the late Mr Cheng Ching Yu, one of the Founding Members. It appears that Mr Cheng Ching Yu had played a leading role in the Association in the decades after, and probably before, the incorporation of the Association. The 4th applicant said his father proposed all three of his sons, including himself and the 5th applicant, to be members of the Association in 1975. The 4th applicant could not identify who seconded his application. However, he had since been involved consistently in the activities of the Association and given advice on financial affairs. He also regularly received correspondence and notices from the Association including notices of general meetings which were intended for members of the Association. 56.While the evidence in support of the 4th applicant’s case is slender I think it is fortified by the position of the 5th applicant, who for reasons stated below I find to be a member of the Association. There is little reason on the evidence for their father Mr Cheng Ching Yu to propose the 5th applicant but not the 4th applicant to be members of the Association. Both were adults in 1975 and were involved in the activities of the Association. Further if the 4th applicant had been proposed by the late Mr Cheng it was inconceivable that the proposal would not have been duly seconded. I infer on the evidence that the 4th applicant had been admitted as a member of the Association. As for the requirement of an Executive Committee or a 3-member committee I refer to paragraph 53 above. The 5th applicant 57.The 5th applicant is also the son of the late Mr Cheng Ching Yu, one of the Founding Members. He said that from a young age he had begun assisting his father in managing and administering the activities of the Association. 58.His case is that in 1975, when the Association was incorporated, his father Mr Cheng Ching Yu proposed him as a member. The proposal was seconded by another member whose name he could not recall. His membership certificate was lost during home removals. He further said that his membership was entered in the Association’s record of members for correspondence purposes. That record had been lost since the dispute about membership arose. 59.According to the 5th applicant, he had been a director on the Board of the Association from 2002. This is supported by the minutes of the meeting of the 10th Board held on 5 October 2008 and of the 11th Board held on 12 September 2010, and the annual returns of the Association since 2002. In fact he was on the board which, according to the 1st to 3rd applicants, admitted them as members. Since by virtue of the articles a director must also be a member, this is significant evidence that the 5th applicant was considered by the board (ie the individuals intimately familiar with the affairs of the Association) to have been a member and in turn significant evidence supporting the inference that he had been validly admitted as a member of the Association. 60.I note also that the 5th applicant was included in the lists of members propounded by both camps. 61.The 5th applicant also relied on the fact that he held a longevity tablet (長生祿位) at the Association. Such tablets, as I understand it, are put in places of Buddhist worship for honouring friends and benefactors for whom prayers are said and sutras chanted. There is little evidence (apart from mere assertion) that this is a benefit to which only a member of the Association is entitled. In contrast, the position according to an earlier affirmation of Mr Wong is that these tablets are installed for donors and benefactors and not confined to members. I place little weight on the presence of these tablets. 62.The evidence overall is in my opinion sufficient to justify the inference that the 5th applicant had been validly admitted as a member of the Association. I accept the 5th applicant’s evidence that his admission was properly proposed (by his father) and seconded. It is not surprising that he could no longer recall who seconded his application 40 years ago. It is likely that his membership was acceded to by all the members concerned at the time of what seemed to have been a closely-knit organisation. The 6th applicant 63.The 6th applicant claimed that his father, Mr Jiu Suk Ming, had long been in the Association. The late Mr Jiu however was not one of the 7 Founding Members or one of the early 33 directors according to the 1975 annual return. The annual returns show that the late Mr Jiu was not appointed a director until 1998 and that he remained a director until around 2007. 64.The 6th applicant’s case is that in the year 2000, his father proposed him to be a member of the Association and the proposal was seconded by Mr Chiu. The application was unanimously approved by the Board. The 6th applicant says that his membership was entered in the Association’s record of members for correspondence purposes which had since been lost. 65.It is significant that the 6th applicant was, together with the 2nd applicant, appointed to the 11th Board in 2008, as shown in the minutes of the meeting of the 10th Board dated 5 October 2008 (see paragraph 52(4)(b) above). The minutes recorded that the fathers of the 2nd applicant and 6th applicant respectively were senior members of the Association. The 6th applicant’s certificate of appointment recorded that he was elected in accordance with the articles. Since only persons who had been members for at least a year were eligible for election as directors under the 2006 Articles, it is likely that the 6th applicant had also been admitted as a member of the Association prior to 2008. 66.It is to be noted that the 6th applicant also appears in the lists of members of both camps. 67.The 6th applicant also relied on the presence of a longevity tablet in his name but for reasons explained above I place no weight on this fact. 68.I conclude that the evidence sufficiently establishes that the 6th applicant is a member of the Association. The 7th applicant 69.The 7th applicant said that his late father, Mr Chiu Man Dot, was a significant member of the Association, although I note that he was not one of the 7 Founding Members or the 33 directors in 1975. His case is that he was proposed by seven members of the Association, namely, Mr Chan Wun Fan, Mr Chiu, Mr Yiu Chung Leung, Mr Chiu Chi Sing, Mr Cheng Ching Yu, Mr Jiu Suk Ming and Mr Cheng Hing in 1990. In his answer to the Receiver’s questionnaire he stated he was proposed by Mr Chiu and Mr Chan Wun Fan and seconded by Mr Cheng Hing. Mr Cheng Hing was a director of the Association between 1983 and 2003 and as such likely to have been a member. The 7th applicant said he was informed about a month later in 1990 that he had been accepted by the Board as a member of the Association. He said that his membership was entered in the Association’s record of members for correspondence purposes, though that record had been lost. 70.There is no dispute that in 1994 the 7th applicant was appointed a director of the Association. In 1995, he was elected to be Deputy General Secretary. In 2003 he was elected to be the General Secretary as the former General Secretary, Mr Cheng Hing, had passed away. In 2008, the 7th applicant was elected as the Deputy Chairman of the 11th Board as well as the General Secretary. The certificate of his appointment issued by the Association stated that he had been elected in accordance with the articles. In 2010, the 7th applicant was also elected as the Deputy Chairman of the 11th Board and the General Secretary. His election was, according to the certificate of appointment, made in accordance with the articles. The minutes of both board meetings were signed by him. 71.In my judgment, the evidence provides a sufficient basis to infer that the 7th applicant had been validly admitted and is a member of the Association. I place no weight on the presence of a longevity tablet in the name of the 7th applicant. The 8th applicant 72.The 8th applicant’s case is that he was proposed by a member, Mr Cheung Shui Lit, to be a member of the Association in 1984. His application was seconded by Mr Chiu and Mr Chiu Chi Sing. It was approved by the Board. He said a resolution was also passed in a general meeting and endorsed by the Chairman Mr Chan Kok Hin and a Founding Member Mr Cheng Ching Yu. The 8th applicant said that a membership certificate was issued to him but it was lost during removals. He said that four old members, namely, Cheung Shui Lit, Cheung Hon Kin, Sham Muk Wing and Chan Yue Chau can testify that he is a member of the Association. 73.The 8th applicant said he had actively participated in all the activities of the Association in particular various Buddhist ceremonies. In 2001 the 8th applicant was appointed together with a few others to establish a core group of sutra studies. In 2006 he was assigned to take up the position of clerk/secretary of the Association. The 8th applicant also said that he held a longevity tablet at the Association. 74.The question is whether this evidence was sufficient. It is unclear how the 8th applicant knew the process by which he became a member. He has not produced any direct evidence from the four living members (including his proposer) who, he said, could testify as to his membership. There is documentary evidence that the person said to be his proposer, Mr Cheung Shui Lit, had become a member of the sutra group and the leader of the decoration group of the Association in 1976. But that could be a position in the staff and not necessarily indicative of membership of the Association. Thus the membership of his alleged proposer is itself not yet established. The 8th applicant’s allegation that there was a resolution in the general meeting was unsupported by any evidence and inherently unlikely given that admission of new members is not a formal matter for the general meeting under any version of the articles. 75.While I do not doubt the 8th applicant’s evidence about his substantial involvement in the Association including his role with regard to resolutions and announcements, that evidence does not, in my judgment, show that he is a member of the Association. Nor is the evidence of the longevity tablet probative of membership. 76.Accordingly I hold that the 8th applicant has not established that he is a member of the Association. Estoppel by convention 77.Mr Cheng submitted on behalf of the 5th to 8th applicants that they could not be denied to be members by virtue an estoppel by convention. In the light of the conclusions I have reached in relation to the 5th to 7th applicants, based on inferences from the evidence, it is unnecessary for me to consider whether or not an estoppel can and did arise; see generally Chan Ho Har Wane Daisy & Another v Clearwater Bay Golf and Country Club [1992] 2 HKC 604; Hong Kong Racing Pigeon Association Limited & Others v Lam Koon Nam & Others [2002] 3 HKLRD 133 at §§20-23; Ma Po Chim Percy v Lee Tung Hai Leo (unreported, HCMP 3253/2004, 19 January 2007) at §24. 78.Nor is estoppel relevant to the 8th applicant. I do not think the evidence shows that the 8th applicant acted on a belief of his membership in such a way, and would not otherwise have so acted, that it would be inequitable to deny him the status of a member of the Association. CONCLUSION 79.For the above reasons I conclude that the 1st to 7th applicants, but not the 8th applicant, are members of the Association. 80.I make a costs order nisi that there be no order as to costs, save that the Receiver’s costs be paid out of the assets of the Association.
Mr Douglas Lam SC and Mr David Chen, instructed by T.H. Wong & Co., for the 1st to 3rd applicants The 4th applicant appeared in person Mr James C C Cheng, instructed by Johnnie Yam, Jacky Lee & Co., for the 5th to 8th applicant Attendance of So Keung Yip & Sin, for the Receiver and Manager of the respondent, was excused [1]The Companies Clauses Consolidation Act 1845 enacted in s 3 that the word "shareholder" shall mean "shareholder, proprietor, or member of the company," and in s 8 that "every person who shall have subscribed the prescribed sum or upwards to the capital of the company, or shall otherwise have become entitled to a share in the company, and whose name shall have been entered on the register of shareholders hereinafter mentioned, shall be deemed a shareholder of the company". [2] Now ss 627-628 of the Companies Ordinance (Cap 622) [3] Re Duomatic Ltd [1969] 2 Ch 365; applicable to companies limited by guarantee: see e.g. Seray-Wurie v Charity Commissioners for England and Wales [2007] 3 All ER 60 at [20]; Hussain v Wycombe Islamic Mission and Mosque Ltd, supra. |
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under HCMP 506/2013