釋照月 v. Secretary for Justice and Others

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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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 1^st respondent) (“SJ”) in his capacity as parens patriae (protector of charities);

(2)  authorisation in writing by the Secretary for Home Affairs (the 2^nd  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 3^rd 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 2^nd affirmation dated 22 March 2017 in reply to the 3^rd 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 3^rd) 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 4^th affirmation on 6 April 2017.  In response, the 3^rd respondent made their 2^nd 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 5^th) 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 5^th 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 3^rd 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 3^rd 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 3^rd 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 3^rd 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 3^rd 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 3^rd 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 3^rd 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

19.The Temple, standing on Lot 1255 in Demarcation District 453 in Fu Yung Shan, Tsuen Wan, New Territories, was first built by the late 釋融秋法師and the 8 Disciples in the 1920’s to 1930’s with funds raised from donations.  It formally opened (開光) on 20 November 1932.  It was subsequently expanded to its present scale in the 1970’s to 1980’s again with funds raised from donations.  The Temple has been registered as a Chinese temple by the Chinese Temples Committee under s 5 of the CTO since shortly after January 1948.

20.Apart from being a place of worship, there are built near the main hall of the Temple (大雄寶殿) rooms with a capacity for over 500 for the accommodation of destitute elderly people particularly those who had worked as domestic maids colloquially known as “媽姐”.

21.As for the Tong, according to the applicant, it was first formed in 1932 and is currently the registered owner of 400,000 odd square feet of land in DD 453 (including the lot on which the Temple stands) under s 15 of the New Territories Ordinance (Cap 97) (“NTO”).

22.The operation of the Tong and the management of the Temple is governed by a 2 page Chinese document entitled《曼華堂簡章》made by the then successors of 6 of the 8 Disciples[6] on 14 June 1985 (“Articles”). 

23.The Articles recorded the facts that the Tong was established and registered before the Second World War by the 8 Disciples (clause 1) and that the Disciples were devout Buddhists and had, with a view to spreading Buddhism, provided funds and made efforts to the establishment and construction of the Temple (named Chuk Lam Sim Yuen but registered in the name of Man Wa Tong) (clause 2). 

24.The Articles go onto to provide for, inter alia, the following:

(1)  Objects: “spreading Buddhism and helping the elderly and the poor according to the spirit of Buddha” (“弘揚佛法，濟老助貧，遵照佛祖慈悲精神為依歸”) (clause 3);

(2)  Succession to membership of the Tong by nomination by each of the 8 Disciples from his/her followers before after his/her death, failing which by the other Disciples (clause 4);

(3)  Establishment of management positions and responsibilities, to be filled by election by members of the Tong from amongst themselves except the position of keeper (住持) who is to be appointed by invitation by members of the Tong (clauses 5 and 6);

(4)  Management of Temple assets (“寺產”) by all members of the Tong jointly and prohibition of application of such assets which are communal (“悉歸公有”) for any private use or purpose (clause 7); and

(5)  Application of surplus assets for the welfare of the elderly people at the Temple as well as other charitable purposes which can be achieved through donations to the government or other charities (clause 8).

25.The management board of the Tong (comprising the current successors of 6 of the 8 Disciples including the 3^rd respondent) manages the Temple.

26.Apart from being recognised as a “t’ong” under s 15 of the NTO, the Tong is further exempted from tax liability as “charitable institution or trust of a public character” by the Inland Revenue Department within under s 88 of the Inland Revenue Ordinance (Cap 112) since 5 August 1985.

27.According to the applicant, at a meeting of the Tong on 5 June 1961, it was resolved that a company should be formed to replace the Tong and to receive from the Tong all its landed properties to continue the Tong’s charitable cause.  Solicitors were retained.  The memorandum and articles of association of a Chuck Lam Monastery Company Limited (竹林襌院有限公司) were printed in 1963 but such company was never actually incorporated.

Whether the assets held by the Tong are subject to a charitable trust

28.Pausing here, in paragraphs 5 to 8 of his 4^th affirmation filed on 6 April 2017 and paragraph 1 of his said list of issues, the applicant invites the court to determine whether the assets held by the Tong are subject to a trust and, if so, whether such trust is charitable in character before deciding whether the applicant has the necessary standing to bring these proceedings.

29.The essential premise upon which the applicant has commenced these proceedings is that the Tong holds the assets under its name on a charitable trust, within the meaning of s 57A of the TO, as per clause 3 of the Articles.  See the following parts of the applicant’s affirmations: paragraph 3 of the 1^st affirmation dated 6 March 2017, paragraphs 8 to 10 of the 2^nd affirmation dated 22 March 2017, paragraphs 7 to 9 to 10 of the 3^rd affirmation also dated 22 March 2017 and paragraphs 13 and 20 of the 4^th affirmation dated 22 March 2017.

30.The 3^rd respondent has not yet filed evidence in response to the originating summons due to the pendency of the Strikeout Application.  However, I note that they have not in their 2 joint affidavits disputed that the applicant’s assertion that the Tong holds the assets under its name on a charitable trust as per clause 3 of the Articles.  Rather, they have also characterised the Tong as “an unincorporated association set up for spreading Buddhism and for charitable purposes”.

31.The existence or otherwise of a charitable trust is a mixed question of law[7] and fact which, if it should be in issue in this case, obviously cannot be determined on the present state of the evidence before me.

32.However, I disagree with the applicant I need to decide such issue, which may not even arise, before ruling on his standing.  I will, for present purpose, simply proceed on the assumption (without pre-empting the issue) that the Tong holds the assets under its name on a charitable trust, more particularly, for the purposes set out in clause 3 of the Articles (“Trust”).

33.On this note, I turn to the matters referred to and relied upon by the applicant as making him a person interested in the Trust.

The applicant and his claimed association with the Temple

34.The applicant is a Buddhist monk and a disciple of 濟平大和尚.  He is more particularly a director of one Hui Wan Memorial Hall Limited (虛雲和尚紀念堂有限公司), a company limited by guarantee and operating another temple on Fu Yung Shan to the north of the Temple called Hui Wan Memorial Hall (虛雲和尚紀念堂).  The residential address given by the applicant in these proceedings is the address of Hui Wan Memorial Hall.

35.As a Buddhist monk and having regard to the objects of the Trust, the applicant claims to belong to a “small identifiable class which the charity is designed to benefit” thereby giving him a “special interest” in the Trust.  That being the case, he is a beneficiary of the Trust of which the Tong is the trustee so that any maladministration of the Trust by the Tong would cause loss to the applicant to give him standing to sue.

36.The applicant is, however, admittedly not a member of the Tong.  There is considerable dispute as to the precise nature and extent of the applicant’s association with the Temple.

37.First, the applicant claims that he and his master attend the Buddhist activities of the Temple.

38.Second, the applicant claims that a room had been arranged for him and his master at the Temple in 2016.   This was for the convenience of the master and for taking care of his health.  However, the lock of the room was changed in early January 2017 without prior notice to the applicant.  The applicant and his master have since been locked out of the room.  The applicant likens his and his master’s position to the situation of the 媽姐 who live at the Temple.

39.On the other hand, according to the 3^rd respondent, although short-term accommodation and meals are provided at the Temple to visiting Buddhist monks and nuns (a service known as 掛單), they deny having ever arranged a room in the Temple for the applicant or his master, nor had they ever made any request to stay at the Temple, whether in 2016 or at any other time.   The applicant had put 2 pieces of luggage at the Temple around 26 December 2016.  He took them back sometime later.  It is unnecessary for the applicant and his master, who is the keeper of Hui Wan Memorial Hall, to reside at the Temple as visiting monks.  In any event, the positon of the 媽姐 living at the Temple is different from that of visiting monks and nuns. The former are followers of past keepers of the Temple who had gone through the “皈依” process and they stay at the Temple permanently to learn Buddhism.  They are treated as “members’ of the Temple.   Visiting monks and nuns’ stay at the Temple under the 掛單service is in contrast transient, limited to 3 days.

40.Third, the applicant claims that the Temple invited him and his master to provide their opinion as “consultants” on one 釋果恆法師whose identity and ability was questioned by many followers of the Temple and the second-named 3^rd respondent.   This is denied by the 3^rd respondent.  釋果恆法師 was the disciple of the late 釋意眧老和尚, the last keeper of the Temple and was designated by釋意眧老和尚 before his death to succeed to the position of keeper of the Temple with the approval of all members of the management board of the Tong.  There was never any question about the identity or ability of 釋果恆法師.

41.Fourth, the applicant claims that he hosted a Buddhist event at the Temple in February 2017.  On the other hand, according to the 3^rd respondent, the said event was a private event organised by the off-springs of the late 釋融秋老和尚.

42.Fifth, by his 5^th affirmation, the applicant urges the court to take into consideration that fact that he has become the third keeper (第三任住持) of the Guan Yin Grotto (觀音巖), also on Fu Yung Shan, in succession to 釋照融法師 on 23 July 2017.  Guan Yin Grotto is situated in DD 453 to the further north of the Temple. 

43.Included in the exhibits to this affirmation is a copy of a Tomlin order made by Deputy High Court Judge Poon (as he then was) on 27 October 2006 in HCA 10388/2000 to which the Tong was the plaintiff and釋照融法師 was the 1^st defendant.  According to the schedule attached to this order, the Tong and釋照融法師 agreed to settle the said action on terms that, inter alia, gave釋照融法師 an irrevocable contractual licence to use and occupy the portion of Lot 1255RP in DD 453 (of which the Tong is the registered owner) marked orange and pink on the annexed plan for the remainder of the term under the government lease (“Licence”).  It was further agreed that the Licence belonged to 釋照融法師 personally and could not be assigned by her to anyone else save that it could be held after her death by a Buddhist successor nominated by her (“她指定的佛教繼承人”).  Written notice of the nomination signed by both 釋照融法師 and the nominated Buddhist successor should be given to the Tong. 

44.Save for stating that he has taken over from釋照融法師 as the third keeper of the Guan Yin Grotto, the applicant has not in the body of his 5^th affirmation explained the precise point that he wishes to make out of this court order.  However, if he is suggesting that he has also succeeded to the Licence (over land subject to the Trust), it is at variance with my reading of the schedule to the Tomlin order.  On my reading, the devolution of the Licence from釋照融法師 to her nominated Buddhist successor would take place only upon the former’s death.

The applicant’s complaints

45.The applicant has in his affirmations and submission repeatedly expressed discontent with the manner in which charities and charitable trusts, particularly those associated with Buddhism, are being regulated in Hong Kong.  He has further expressed the wish of disseminating a message to the public, through these proceedings, that, notwithstanding the absence of a charity or religion law, the courts in Hong Kong would intervene to stop abuse of Buddhist charities.

46.With regard to the Temple, the applicant has mentioned the following:

(1)  The address of the Temple was used as the business address of a 歡喜心慈善會有限公司, a Hong Kong company which has no connection with the Temple save that one of its director is a member of the Tong, from 2006 to 2012.

(2)  10 odd men dressed in black appeared at the Temple on 11 and 12 February 2017 in disruption of the worshipping activities and a management meeting.

(3)  After being in operation for nearly 90 years, the Trust with its vast assets and interests may have already become the target of “有心人”.

(4)  The Temple being a charitable trust with the aim of spreading Buddhism should not impose any restrictions on the entry and stay of visiting monks and nuns.

47.The applicant has further exhibited what appears to be a news extract downloaded from the internet to, inter alia, the effect that a female person who has been a volunteer in the kitchen at the Temple for about 10 years and has become a member of the management board of the Tong and an authorised signatory in respect of the Tong’s deposit of over HK$90 million acted in collusion with (1) some monks from mainland China to support a 果恆法師to be the keeper of the Temple and also engaged some men dressed in black to harass the family of the late釋融秋老和尚 who resided at the Temple and to obstruct followers from worshipping at the Temple.

48.Due to the pendency of the Strikeout Application, the 3^rd respondent have not yet filed evidence in opposition to the originating summons which (if required) would, I expect, address these matters complained of by the applicant.

Meaning of “persons otherwise interested in the trust” under s 57A(a)(iii)

49.The TO contains no definition of the expression "person otherwise interested in the trust" in section 57A(a)(iii).  Nor has this phrase been ever considered in any decided case in Hong Kong.

Judicial interpretation of similar statutory provisions in England

50.Similar expressions can be found in successive versions of the modern English Charities Acts since 1960.[8] More particularly, insofar as it is material, s 28 of the Charities Act 1960 (“1960 Act”) provided as follows:

“(1) Charity proceedings may be taken with reference to a charity either by the charity, or by any of the charity trustees, or by any person interested in the charity, or by two or more inhabitants of the area of the charity, if it is a local charity, but not by any other person.

(2) Subject to the following provisions of this section, no charity proceedings relating to a charity (other than an exempt charity) shall be entertained or proceeded with in any court unless the taking of the proceedings is authorised by order of the Commissioners.[9] 

(3) The Commissioners shall not, without special reasons, authorise the taking of charity proceedings where in their opinion the case can be dealt with by them under the powers of this Act.

…

(5) Where the foregoing provisions of this section require the taking of charity proceedings to be authorised by an order of the Commissioners, the proceedings may nevertheless be entertained or proceeded with if after the order had been applied for and refused leave to take the proceedings was obtained from one of the judges of the High Court attached to the Chancery Division.

…

(8) In this section “charity proceedings” means proceedings in any court in England or Wales brought under the court’s jurisdiction with respect to trusts in relation to the administration of a trust for charitable purposes.

…” (emphasis added)

Section 28 of the 1960 Act was in substance re-enacted (with minor changes which are not material for present purpose) in s 33 of the Charities Act 1993 (“1993 Act”) and s 115 of the Charities Act 2011 (“2011 Act”). 

51.The phrase “any person interested in the charity” as used in the said English Charities Acts, likewise not defined, has been considered by the English courts in a number of cases.

52.The first such case is Haslemere Estates Ltd v Baker [1982] 1 WLR 1109 in which the plaintiffs, property developers claiming to have a binding contract for the grant of a lease of property owned by the defendant charity, contended that the expression “any person interested in the charity” in s 28(1) of the 1960 Act should not be construed narrowly; that it was intended only to exclude officious intermeddlers and that if charity proceedings related to property, any person interested in the property was a person “interested in the charity”. Sir Robert Megarry VC held that the plaintiff was not a “person interested” in the defendant charity within the meaning of s 28(1) of the 1960 Act.  His Lordship said at 1121H-1122E:

"… When subsection (1), (2) and (8) of section 28 are put together, it is clear, first, what is being dealt with is a special type of proceedings, namely, those brought under the age-old equitable jurisdiction over charities and charitable trusts, and known as ‘charity proceedings’.  There is no question of the provisions relating to proceedings in general, whatever the type.  Second, those proceedings are contemplated as being taken ‘with reference to a charity’ or as ‘relating to a charity’.  Third, the phrase is ‘any person interested in the charity’, not any person who ‘has an interest in the charity’s property’, or any person who ‘has a claim against the charity’.  Fourth, that phrase is to be construed not on its own, but in relation to those who are to be permitted to take the special type of proceedings known as ‘charity proceedings’.

Now I do not aspire to define the meaning of the phrase ‘any person interested in the charity’ in this context.  That I shall leave for others; I am merely concerned to find a safe resting place for my decision in this case.  In my judgment the phrase, in its context, does not bear the wide meaning for which [counsel for the plaintiffs] contend.  Many a person may be interested in the property of a charity without, for this purpose, being interested in the charity.  I do not think that to contract with the trustees of a charity turns the contractor into a ‘person interested in the charity’, even if the contract relates to land or other property of the charity.  I do not think that the phrase includes every tenant of charity land, or those who have easements or profits or mortgages or restrictive covenants over charity land, or those who contract to repair or decorate charity houses, or those who agree to buy goods from the charity or sell goods to the charity.  An interest which is adverse to the charity is one thing, an interest in the charity is another.  Those who have some good reason for seeking to enforce the trusts of a charity or secure its due administration may readily be accepted as having an interest in the charity, whereas those who merely have some claim adverse to the charity, and seek to improve their position at the expense of the charity, will not.  The phrase, I think, is contemplating those who are on the charity side of the fence, as it were, however much they may disagree with what is being done or not being done by or on behalf of the charity.  The phrase does not refer to those who are on the other side of the fence, even if they are in some way affected by the internal affairs of the charity.” (emphasis added)

53.However, not everyone who can be said to be on “the charity side of the fence” is a “person interested in the charity”.

54.In Bradshaw v University College of Wales [1988] 1 WLR 190, Hoffmann J (as he then was) struck out a claim by the executors of the settlor of certain charitable trusts for educational purposes against the trustees for a full account of the administration of the trusts on the ground that the settlor’s executors were not “person interested in the charity” within s 28(1) of the 1960 Act.  They had no more interest in the charity than any other member of the public as neither they nor the estate of the deceased settlor could in any sense be regarded as beneficiaries under any of the charitable purposes, nor was there any possibility of the trust property reverting to the settlor's estate (see 192H). 

55.In response to the plaintiff executors’ submission that they were on the charity side of the fence, Hoffmann J observed at 193H:

“Megarry V-C was, however, concerned to exclude those persons whose interests were adverse to the charity. Not everyone who volunteers himself as interested in the proper administration of the trust will be a person 'interested' within the meaning of s 28(1).” (emphasis added)

56.His Lordship concluded at 194E as follows:

“Without, as Sir Robert Megarry V.-C. said in the Haslemere case, in any way wishing to essay a definition of “any person interested”, I do not consider that a person who could not in any circumstances be a beneficiary of the charity or take any interest under the trusts applicable to the property of the charity can be within that expression.”

57.That is, however, not to say that a beneficiary of a charity is necessarily a “person interested in the charity”.

58.In Re Hampton Fuel Allotment Charity [1989] Ch 484 (CA), the plaintiff council and 2 trustees of the subject charity sought orders concerning the administration of the charity.  The objects of the charity were to relieve needs, hardship or distress of persons resident in the ancient town of Hampton.  Such town was wholly within the area of the council.  3 of the 11 trustees of the charity were appointed by the council.  The council was held to qualify as a “person interested in the charity” within the meaning of s 28(1) of the 1960 Act.

59.Delivering the judgment of the court, Nicholls LJ (as he then was) analysed the matter at 493A-:

“We shall consider first the phrase “any person interested in the charity” without reference to the facts of the present appeals.  Parliament has chosen not to define the phrase.  As the argument before us proceeded, it became increasingly evident that there are insuperable difficulties in attempting a comprehensive definition.  In particular, we are unable to accept what was submitted to be the test to be extracted from the decision of Hoffmann J. in Bradshaw v. University College of Wales and Knox J. in the present case, viz., that to be interested a person needs either (a) to be capable of benefiting from the charity or taking some interest under the trusts affecting the property of the charity or (b) to be entitled to participate in the management of the charity. In our view, that is unsatisfactory as a test because in some respects it may be too wide and in other respects it is too narrow.  It may be too wide, because the class of potential beneficiaries under many nationwide charities is vast.  We accept that there may be cases where an actual or potential beneficiary under a nationwide charity will qualify as a person interested in that charity.  But we do not accept that an actual or potential beneficiary will always qualify. It must depend on all the circumstances.  Conversely, the test will, in some circumstances, be too narrow.  Take the example of a local authority which sets up a charitable trust for the relief of poverty of former employees as their dependants.  Assume the local authority has power to appoint all the trustees.  Assume further that the trust is maladministered. We are not at all attracted by the conclusion, which application of the suggested test would yield, that such an authority would not be a person interested in that charity: that it would not be able to launch charity proceedings in respect of that charity.”

“In Bradshaw v. University College of Wales [1988] 1 W.L.R. 190 it was not the settlor but her executors who brought proceedings. We agree with Hoffmann J. that they were nor persons interested. As the judge said in that case, at p. 194: “Executors succeed to the property of the deceased; not to her spirit and disembodied wishes.”

But if it had been the settlor herself who was plaintiff, we would not wish to rule that she was not a person interested.  Certainly we would have no doubt that a person does not qualify as a person interested in a charity simply because he has a sentimental or ultruistic interest in it or provides modest financial support for it, whether by making payments under covenant or buying a flag on its flagday or contributing to an appeal.  But, at the other edge of the spectrum, we think that it would be surprising if a person who founds and finances a charity can never thereby qualify as a person interested in that charity.

The words “interest” and “interested” are words which bear widely different meanings according to their context.  Although section 28 of the Act of 1960 contains no definition, the context does provide a little guidance on what Parliament must have in mind.  First, the context is that of standing to bring charity proceedings with reference to a particular charity.  So that the person needs to have some good reason for bringing the matter before the court.  Second, whilst there may be special historical reasons for this, it is to be noted that in the case of local charities, any two or more inhabitants of the area of the charity are competent plaintiffs.  So there the net is spread widely.  Third, a protective filter exists in respect of charity proceedings, in that persons competent to bring charity proceedings under section 28(1) generally require approval from the Charity Commissioners or the court, under section 28(2) and (5).  So that concern to avoid charities being vexed with frivolous and ill found claims does not dictate that “person interested” must be given a narrow meaning.

Fourth and importantly, the historic role of the Attorney-General, representing the Crown, is preserved in relation to charity proceedings by section 28(6). …

Again, as Lord Simonds observed in National Anti-Vivisection Society v. Inland Revenue Commissioners [1948] A.C. 31, 62, it is the right and duty of the Attorney-General to intervene and inform the court if the trustees of a charitable trust fall short of their duty. Thus the interest which ordinary members of the public, whether or not subscribing to a charity, and whether or not potential beneficiaries of a charity, have in seeing that a charity is properly administered is a matter in respect of which the Attorney-General remains charged with responsibilities. He can institute proceedings ex officio or ex relatione. This suggests, therefore, that to qualify as a plaintiff in his own right a person generally needs to have an interest materially greater than or different from that possessed by ordinary members of the public such as we have described.

In our view that may be as near as one can get to identifying what is the nature of the interest which a person needs to possess to qualify under this heading as a competent plaintiff. It is not a definition. But charitable trusts vary so widely that to seek a definition here is, we believe, to search for a will-o'-the-wisp. If a person has an interest in securing the due administration of a trust materially greater than, or different from, that possessed by ordinary members of the public as described above, that interest may, depending on the circumstances qualify him as a "person interested." It may do so because that may give him, to echo the words of Sir Robert Megarry V.-C. in Haslemere Estates Ltd. v. Baker [1982] 1 W.L.R. 1109, 1122C: "some good reason for seeking to enforce the trusts of a charity or secure its due administration...”  We appreciate that this is imprecise, even vague, but we can see no occasion or justification for the court attempting to delimit with precision a boundary which Parliament has left undefined.”

60.The plaintiff council in Re Hampton Fuel Allotment Charity was considered as having a substantially greater interest in the subject charity than ordinary members of the public because of the close nexus between the services provided by the council and the activities of the charity.  The council’s functions in providing facilities for the elderly, the disabled and children in the area it served and the functions of the charity in the relief of need, hardship and distress of those who lived in one part of the area served by the council ran hand in hand.  See 495A-C. 

61.In Rosenzweig v NMC Recordings Ltd [2014] PTSR 261, a British composer whose works had been rejected for publication by a charity the object of which was to promote contemporary British music was refused leave to continue charity proceedings commenced by him against the charity without the authorisation of the Charity Commission because (a) those proceedings had as their focus the composer’s personal benefit rather than the public benefit to be derived from the court’s intervention and (b) the composer had no prospect of establishing that the trustees’ conduct had been unlawful and their decision invalid.

62.The question of leave arose for determination as Norris J (as he then was), applying Re Hampton Fuel Allotment Charity, considered the composer to be a person interested in the charity within the meaning of s 115(1) of the 2011 Act because (a) he had applied to the charity for the inclusion of his work amongst the dozen or so CDs that the charity produced each year; (b) he was a composer whose work ought to be considered; and (c) the charity had recognised his standing by including him on its “musical map”.

63.I note for present purposes firstly that, in so holding, Norris J echoed what Nicholls LJ said in Re Hampton Fuel Allotment Charity, i.e. that there was no need to give the expression “person interested” in section 115 of the 2011 Act a narrow construction in order to avoid charities being vexed with frivolous and ill found claims given that a person bringing charity proceedings generally required either the authorisation of the Charity Commission or the leave of the court. 

64.Secondly, his Lordship did not accept the composer’s argument that his interest in securing the due administration of the charity was materially greater than and different from that of ordinary members of the public simply because he was a living composer whose work and livelihood was directly affected by the work of the charity.  “The many hundreds of composers of contemporary music within the UK simply constitute a section of the public.” (at 267E-F).

65.Lastly, in Reverend Berhanu Bisrat v Archimandrite Aba Girma Kebede [2015] EWHC 840 (Ch) which concerned the Ethiopian Orthodox Tewahedo Church of St Mary Debre Tsion.  There was an issue as to who were entitled to control the trust.  The claimants were, following the abovementioned authorities, held to be persons interested in the church as they had an interest which was far greater than ordinary members of the public and had a good reason for bringing the proceedings arising from their long standing connection to the church and the nature of that connection.  The claimants were registered members of the church and regular worshippers and contributors over many years, and (in the case of the first claimant) a priest until dismissed by those of the defendants then in control of the church.

66.What is of interest for present purpose is that Judge Purle QC, after citing Bradshaw, warned that caution should be exercised when using the concept or word “beneficiary” in the charity context at [22]:

“I think one has to be careful of the use of the word “beneficiary” in this context.  A charitable trust, as such, does not have beneficiaries in the same sense as beneficiaries under a private trust.  No individual has any proprietary interest in the charity’s assets and funds as such, but a person may become a beneficiary in a loose sense as an object of the charitable trust.  The advancing of the Ethiopian Orthodox faith would, in one sense, embrace all those of that faith.  That would not, I think, be sufficient to make all members of the Ethiopian Orthodox Church, anywhere in the world, who are very considerable in number, persons interested in this charity, but I do think that regular worshippers, who have contributed as such to the acquisition of the assets of the charity, as well as worshipping at the church in its various forms over many years, are undoubtedly interested persons for this purpose….”

67.I derive the following propositions from these English authorities:

(1)  A person having an interest that is adverse to a charity is not a person interested in the charity.  The phrase “person interested in the charity” embraces those on the charity side of the fence, however much they may disagree with what is being done or not being done by or on behalf of the charity.  It does not include those who are on the other side of the fence, even if they are in some way affected by the internal affairs of the charity.

(2)  Those who have some good reason for seeking to enforce the trusts of a charity or secure its due administration may be accepted as having an interest in the charity.

(3)  But the interest which ordinary members of the public, whether or not subscribing to a charity and whether or not potential beneficiaries of a charity, have in seeing that a charity is properly administered is to be protected by the Attorney-General as parens patriae through proceedings which he can take either ex officio or ex relatione.

(4)  For an individual to qualify as a plaintiff in his own right, he generally needs to have an interest in securing the due administration of the trust that is materially greater than or different from that possessed by ordinary members of the public.

(5)  That being the case, an actual or potential “beneficiary”, used in this context in a loose sense to mean an object of a charity, may not always qualify, depending on all the circumstances.

(6)  Save for the above, whether a person is a “person interested in the charity” for the purpose of bringing charity proceedings in relation to that charity is a fact sensitive question, depending on facts and circumstances that can be so varied that no helpful definition of the phrase could or should be attempted.

(7)  However, the specific context existing in England does not call for a narrow meaning to be given to “person interested in the charity” because:

(a)  Parliament has manifestly cast the net wide by enabling, in the case of a local charity, any two or more inhabitants of the area of the charity, to bring charity proceedings in respect of such charity.

(b)  Charity proceedings by even persons competent to bring the same are subject to the general control of the Charity Commissioners or the court.

Applicability of English authorities to the construction of TO s 57A(a)(iii) with modification in approach

68.Mr Chan, for the 3^rd respondent, has taken me through the legislative history leading to the addition of the present s 57A to the TO by the Trustee (Amendment) Ordinance 1997.  In summary:

(1)  By virtue of item 48 of the Schedule to the former Application of English Law Ordinance (Cap 88), the Charities Act 1812 had applied to Hong Kong until the enactment of the Trustee (Amendment) Ordinance 1997.

(2)  The new s 57A was intended to replace the Charities Procedure Act 1812 as applied to Hong Kong and to “re-enact in an updated form certain statutory provisions affecting the law of … charitable trusts”.[10] 

(3)  The current s 57A(a)(ii) and (iii) were not included in the original bill gazetted on 18 April 1997.

(4)  It was at the resumption of the debate on the second reading of the bill on 17 June 1997 (during the committee stage) that the Attorney-General moved to amend the amendment bill to include the current s 57(a)(ii) and (iii).  Such amendment was said to have been formulated after discussions between the Administration and the Hong Kong Bar Association.

69.Although I do not find in the materials placed by Mr Chan before me any express citation of s 33 of the 1993 Act (the provision current in England at the time of the enactment of s 57A), I regard the English cases set out under the last heading as having persuasive authority in our construction of the words “persons otherwise interested in the trust” in s 57A(a)(iii) for the following reasons:

(1)  The enactment of s 57A was to update the statutory provisions affecting charitable trusts. Section 33(1) of the 1993 Act was at the time the current provision in England.  And s 28(1) of the 1960 Act (in identical terms to s 33(1) of the 1993 Act) had been in place in England for more than 30 years before that.

(2)  Section 57A(a) of the TO is, in a material sense, similarly worded as section 33(1) of the 1993 Act.

(3)  Most importantly, the concern commonly cited as underlying the English provision, i.e. that charities should not be harassed by frivolous and ill-found suits brought by those with no stake in them, applies equally in Hong Kong.

(8)  Further, in Hong Kong, the interest which ordinary members of the public have in seeing that a charity is properly administered is likewise protected by the SJ as parens patriae who can take charity proceedings either ex officio or ex relatione.

70.There is, however, one aspect of the English position as summarised in paragraph 67 above that, in my view, has no place in Hong Kong.  And, that is, the 2 reasons identified by Nicholls LJ in Re Hampton Fuel Allotment Charity for not giving a narrow meaning to the phrase “person interested in the charity” in the successive English Charities Acts (set out in paragraph 67(7) above) do not apply in Hong Kong. 

71.I would resolve the question of the applicant’s standing to bring these proceedings with reference to the propositions set out in paragraph 67(1) to (6) above.

Further proposition

72.Furthermore, s 57A(a) is intended to enable only those who have some good reason for seeking to enforce the trust of a charity or secure its due administration to take charity proceedings.  Charity proceedings come in a variety of forms and contents.  In my opinion, one should not assess whether a claimant in charity proceedings is interested in the subject charitable trust in the abstract but in context which should include the specific manner in which he seeks to enforce the trust or secure its due administration.  This is, to my mind, brought into focus by the nature and extent of interests in the Trust asserted by the applicant which is on any view relatively insignificant and the fundamental way in which he prays to reconstitute the Trust.  In other words, to qualify as a “person otherwise interested in the trust” for the purposes of charity proceedings, the claimant needs generally have an interest in securing the due administration of the trust in the particular way sought by him.

No place for the concept of “small identifiable class which the charity is designed to benefit”

73.Before I turn to the applicant’s case on the fact, I refer to paragraph 35 above in which I have mentioned the applicant’s assertion of a “special interest” in the Trust as a result of his belonging to a “small identifiable class which the charity is designed to benefit”, i.e. Buddhist monks and nuns.

74.The applicant grounds this submission with reference to 3 authorities, none of which in my opinion has any application here.

75.First, the applicant refers to the following passage from the judgment of Buckley J (as he then was) in Boyce v Paddington Borough Council [1903] 1 Ch 109 at 114:

“A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with (e.g., where an obstruction is so placed in a highway that the owner of premises abutting upon the highway is specially affected by reason that the obstruction interferes with his private right to access from and his premises to and from the highway); and secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right.”

76.I am baffled by this quotation.  It is plainly out of context.  The proceedings in Boyce v Paddington Borough Council were not charity proceedings.  The plaintiff there was the owner of buildings abutting on a churchyard with many windows overlooking it.  It applied for an injunction to restrain the local authority (which had control over the churchyard as an open space) from erecting a hoarding in the churchyard to obstruct the access to light to the plaintiff’s windows with a view to preventing him from gaining a prescriptive right to the access of light over the churchyard.  The question was raised as to whether the plaintiff could maintain the action without the concurrence of the Attorney-General.  The words quoted above were uttered by Buckley J in the context of such issue.

77.Secondly, the applicant refers to Australian Conservation Foundation Incorporated v The Commonwealth (1980) 146 CLR 493 in which Gibbs J said at 530-531:

“I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.”

78.The applicant has not explained how his case is advanced by this statement, though I find it oddly apt in an out of context way.  It is out of context because the proceedings before the High Court of Australia was not concerned with any charity or charitable trust but a proposal to establish and operate a resort and tourist area in central Queensland which had been approved.  The issue was whether the plaintiff conservative council could sue because of its well known interest in the preservation and conservation of the environment and because it had lodged a submission on the proposal when it was being considered.

79.Thirdly and lastly, the applicant places reliance on the following statement which Mr Chan has traced to an article entitled Standing to Sue in the Charitable Sector by Blasko, Crossley and Lloyd published in 28 USFL Rev 37 (1993-1994) at p 71:

“The court[11] then explained, however, why these reasons should not and do not apply where the challenging beneficiaries are members of a small identifiable class potentially entitled to trust benefits. The court stated that “a particular class of potential beneficiaries has a special interest in enforcing a trust if the class is sharply defined and its members are limited in number.”

80.For the sake of completeness, Mr Chan urges me to read on:

“The nature of the benefitted class alone, however, did not mark the Hooker plaintiffs as having a “special interest”. Since “even when a class of potential beneficiaries is small and distinct enough that its members appear to have an interest distinguishable from the public’s, the problem of subjecting the trustees to recurring vexatious litigation may exist.” The court clarified the “special interest” doctrine by requiring that the complaining plaintiffs also show an immediate threat of injury. A plaintiff must be directly injured by a charity’s breach of its duties, and “[a] suit by a representative of a class of potential beneficiaries should aim to vindicate the interests of the entire class and should be addressed to trustee actions that impair those interests. …”

81.What is being discussed is the application of what is known as the “special interest” doctrine applied by the courts in the US for assessing whether a plaintiff deserves to be granted standing to initiate litigation against charitable organisations for malpractices.  It is developed as a matter of common law in the US against very different legal and socio-economical background.  For instance, it is suggested by the authors of the article that this doctrine has at least these 4 elements: (1) the extraordinary nature of the acts complained of and the remedy sought by the plaintiff; (2) the presence of fraud or misconduct on the part of the charity or its directors; (3) the state attorney-general’s availability or effectiveness; and (d) the nature of the benefitted class and its relationship to the charity.  See the discussion from page 61 onwards.  It clearly has no place in the statutory interpretation of s 57A(a)(iii) of the TO.

82.I now finally turn to the applicant’s case on the fact.

Whether the applicant is a person otherwise interested in the Trust

83.I have already set out the factual dispute between the applicant and the 3^rd respondent.  It is trite that disputed facts are to be taken in favour of the party sought to be struck out: Hong Kong Civil Procedure 2017, Volume 1, p 458, §18/19/4.  Hence, I will take the applicant’s case as asserted by him.

84.Once the applicable principles are identified (see paragraphs 67(1) to (6) and 72 above), the facts asserted by the applicant really speak for themselves and can be disposed of shortly.

85.Dealing with the last point first, if it is suggested that the applicant has actually inherited or would potentially inherit the Licence, that makes him a person having an interest that is potentially adverse to the Trust.  That is to say, as the actual or potential holder of the Licence, the applicant is not on the side of the Trust.

86.As for the applicant’s status as a Buddhist monk (even one attending the Buddhist activities of the Temple), the objects of the Trust as set out in clause 3 of the Articles are “spreading Buddhism and helping the elderly and the poor according to the spirit of Buddha”.  The “beneficiaries” of these objects are not limited to monks (and nuns) or believers in Buddhism, but also elderly and poor people who are vastly abundant in number.  Borrowing the words of Norris J in Rosenzweig v NMC Recordings Ltd, supra, at 267E-F, the potential “beneficiaries” of the Trust (including monks and nuns) simply constitute a section of the public.

87.The other interests put forward by the applicant (i.e. as someone previously promised but subsequently denied a room at the Temple, as someone having been consulted regarding the current keeper of the Temple and/or as someone having hosted one Buddhist event at the Temple), whether individually or together, likewise do not to my mind give the applicant an interest in securing the due administration of the Trust that is materially greater than or different from that possessed by ordinary members of the public.

88.In particular, the applicant asks for the complete overhaul of the Trust.  I do not see how the said relative inconsequential interests can give or add up to give the applicant an interest in the wholesale reconstitution of the Trust.

89.The applicant is thus not a person otherwise interested in the Trust.

Disposition

90.For the above reasons, I strike out the originating summons and dismiss the applicant’s claim against all the respondents.  I also make an order nisi that the applicant should pay all the respondents’ costs of the proceedings on a party-and-party basis, to be taxed if not agreed, with certificate for counsel.

Postscripts

91.As the interest which the Hong Kong public has in the proper administration of charities is protected primarily by the SJ as parens patriae, I trust that the SJ would in such capacity consider whether the matters alleged by the applicant and set out in paragraphs 46 and 47 above should be looked into.

The applicant appeared in person

Ms Minnie Wong, Senior Government Counsel (Ag), of Department of Justice for the 1^st and 2^nd respondents

Mr Stony Chan, instructed by Messrs Au, Thong & Tsang, for the 3^rd respondent

[1] Namely 釋茂清, 釋茂常, 釋茂顯, 釋茂霞, 釋茂寛, 釋茂雲, 釋茂願 and 伍茂法.

[2] Represented herein by 2 of its 6 current managers, Madames Au-Yeung Shum Mei and Poon Kit Fong, pursuant to the Order of Mr Justice L Chan made on 28 March 2017.

[3] Chuk Lam Sim Yuen is, according to the evidence, another name for Man Wa Tong and vice versa.  And the parties have in their submissions referred to Chuk Lam Sim Yuen and Man Wa Tong collectively as “the Temple”.  However, to avoid confusion arising from imprecision, I shall in this judgment use the expressions “Temple” and “Tong” to respectively denote the physical structure that is Chuk Lam Sim Yuen and the unincorporated association of individuals formed to manage the Temple and properties associated with the Temple.

[4] Under s 14 of the CTO, any person authorised in writing by the SHA may enter and search any registered Chinese temple in respect of which such person may have reason to suspect that the CTO is being or has been contravened, and seize and detain any books or documents any anything which may appear to be evidence of any contravention of the CTO.

[5] The issue of the applicant’s standing was raised in the Joint Affidavit of Au-Yeung Shun Mei and Poon Kit Fong dated 16 March 2017 in support of their application as the managers of the Tong to be joined to represent the 3^rd respondent and for the title of these proceedings to be amended accordingly.  The application for joinder and amendment was allowed by Mr Justice L Chan at the call-over hearing on 28 March 2017. Although the 3^rd respondent did not formally take out an application to strike out the originating summons, his Lordship gave directions for the hearing of such application.  The hearing before me on 25 July 2017 was fixed for such purpose. And all parties have filed and served affirmation evidence and lodged written submissions as directed by L Chan J.  For the sake of good order, I directed the 3^rd respondent to formally take out a summons within 2 working days.

[6] Namely 潘錦籣 (successor of釋茂清), 雷秀霞 (successor of釋茂常), 歐陽光慧 (successor of釋茂顯), 釋意皆 (successor of 釋茂寛), 釋宏光 (successor of釋茂雲) and 楊意誠 (successor of釋茂願).

[7] Insofar as the legal aspect is concerned, briefly, for a trust to be charitable, its purposes must have charitable character, that is, they must be within the spirit and intendment of the preamble to the Charitable Uses Act 1601; it must exist for the benefit of the public and it must be exclusively charitable.  See Cheung Man Yu v Lau Yuen Ching, CACV 265/2006, unreported, 7 May 2007, per Tang VP (as he then was) at [24], citing from Tudor on Charities (9^thedn, 2003), §1-002.  With regard to the first requirement, the locus classicus on the definition of “charitable purpose” in law is the passage by Lord Macnaghten in The Commissioners For Special Purposes of the Income Tax v Pemsel [1891] AC 531 at 583 (which was derived from the preamble to the 1601 Act), cited and applied in Cheung Man Yuat [25]: “‘Charity’ in its legal sense comprises four principal divisions: trusts for the relief of poverty; trust for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads.”  As for the second requirement, it means that the trust must be for the benefit of the community or an appreciably important section of the community, which involves the consideration of 2 related questions: (1) whether the purposes of the trust confer a benefit on the public or a section of the public; and (2) whether the class of persons eligible to benefit constitutes the public or a section of it.  See Cheung Man Yu at [26].  On the third requirement, as summarised by Lord Cohen in IRC v City of Glasgow Police Athletic Association [1953] AC 380 at 405:“(1) If the main purpose of the body of persons is charitable and the only elements in its constitution and operations which are non-charitable are merely incidental to that main purpose, that body of persons is a charity notwithstanding the presence of those elements… (2) If, however, a non-charitable object is itself one of the purposes of the body of persons and is not merely incidental to the charitable purpose, the body of persons is not a body of persons formed for charitable purposes only within the meaning of the Income Tax Acts…”.

[8] The involvement of an interested party in charity proceedings is, however, more dated.  See the summary in Tudor on Charities (10^th ed, 2015) at pp 688-689, §§16-001-16-003.

[9] That is the Charity Commissioners for England and Wales.

[10] See paragraph 2 of the Legislative Council Brief dated 15 April 1997.

[11] Referring to the court in Hooker v Edes Home 579 A.2d 608 (DC Cir 1990) in which 4 elderly women, with reference to their “special interest” were given standing to bring a class action suit objecting to the closure and relocation of a free home for elderly indigent Georgetown widows.