釋照月 v. Secretary for Justice and Others

CACV 221/2017

[2018] HKCA 488

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 221 OF 2017

(ON APPEAL FROM HCMP 496/2017)

________________________

__________________________

________________

JUDGMENT

________________

Hon Lam VP:

Introduction

1.The applicant commenced proceedings by originating summons on 22 March 2017 in respect of the administration of Man Wa Tong (“MWT”) which holds and manages a Buddhist temple at Fu Yung Shan (芙蓉山), Tsuen Wan called Chuk Lam Sim Yuen (竹林禪院) (“the Temple”).  For present purposes, there is no issue raised as to the charitable status of MWT. The specific relief sought by the applicant is summarized by the judge[1] at [2] as follows:

“ (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”), 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.”

2.In a joint affidavit of 16 March 2017, the managers of MWT challenged the right of the applicant to bring these proceedings.  Louis Chan J gave directions on 28 March 2017 for this issue to be determined.  When the matter came before Lisa Wong J for hearing on 25 July 2017, Her Ladyship directed a formal summons be issued by MWT.  In the summons of 25 July 2017, MWT sought to strike out the originating summons on the ground that the applicant did not have the locus standi to commence the proceedings. 

3.The crucial issue in the strike-out application is whether the applicant can be regarded as a person otherwise interested in the trust within the meaning of Section 57A(a)(iii) of the Trustee Ordinance Cap 29.  That section reads:

“ 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.”

4.On 6 September 2017, Lisa Wong J handed down a written decision.  The learned judge acceded to the application of MWT, holding that the applicant had no locus standi.  She ordered that the originating summons be struck out with costs.

5.The applicant appealed against that decision. We heard the appeal on 25 May 2018 and judgment was reserved.  We now give our judgment on the appeal.

The applicant’s case

6.At [34] to [44] of her judgment, the judge set out the connection between the applicant and the Temple.  In particular, she said at [34] to [36]:

“ 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.”

7.In addition, the applicant is also the keeper of Guan Yin Grotto (觀音巖), another Buddhist institute at Fu Yung Shan.  He was so appointed by the former keeper at an open ceremony on 23 July 2017. 

8.In the vicinity of the Temple at Fu Yung Shan, there are several Buddhist establishments.  According to a map at p.120 of the appeal bundle, apart from Hui Wan Memorial Hall and Guan Yin Grotto, at the northeast of the Temple, there was another Memorial Hall called 融秋老和尚紀念堂.  To the west of Guan Yin Grotto, there was a 法華禪院.  Further to its west, there was a 楞嚴覺苑.

9.The applicant claimed that the Temple had in the past maintained a close relationship with the monks in Hui Wan Memorial Hall.  Various matters were alluded to in his evidence summarized by the judge at [37] to [41] of the judgment.  The relationship between Guan Yin Grotto and the Temple was also relied upon, as highlighted at [42] and [44] of the judgment. 

10.In the appeal, the applicant applied for leave to adduce further evidence on the nexus of the Temple with Hui Wan Memorial Hall and Guan Yin Grotto.  We shall address that application later.

The judgment below

11.After referring to some English authorities decided under section 28 of the Charities Act 1960, the learned judge distilled several propositions at [67] of the judgment:

“ 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.”

12.Her Ladyship then considered the applicability of these propositions in the application of Section 57A(a)(iii) of the Trustee Ordinance.  She explained the reason for regarding the English authorities as persuasive at [69] and [70]:

“ 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.”

13.She therefore took the view that she could resolve the question of the applicant’s standing with reference to propositions (1) to (6) set out above.

14.She also added another proposition at [72]:

“ 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.”

15.At [73] to [81] of the judgment, the judge rejected the submission of the applicant based on the concept of small identifiable class which the charity is designed to benefit.  She held that such concept had no place in the construction of section 57A(a)(iii).

16.On the facts of the case, assuming that the factual allegations of the applicant were true, the judge found that the applicant was not a person interested in the trust within the meaning of section 57A(a)(iii).  She rebutted the arguments of the applicant point by point at [85] to [87] of the judgment.  

17.Hence, the judge held that the applicant had no standing to apply under section 57A and struck out the proceedings.  She also added this postscript at [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.”

18.[46] and [47] of the judgment set out some alleged matters of concern regarding the affairs of the Temple:

“ 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.”

A different statutory scheme in the Charities Act 1960 and the inadequacy of public supervision and accountability for charities in Hong Kong

19.The applicant submitted before us that statutory regulation of charities in Hong Kong is substantially and materially different from the position in England when the English authorities were decided.

20.In our judgment, it is fair to say that Hong Kong is indeed lagging far behind in terms of effective public supervision and accountability for charities.  In terms of statutory regulation, the English system is much more developed and sophisticated. 

21.The first modern charities legislation in England was the Charities Act 1960.  Before that, the Charitable Trusts Act 1853 already established professional board of charities commissioners with supervisory power and quasi-judicial power in the appointment or removal of trustees.  The following features in the Charities Act 1960 are absent in Hong Kong:

(1) There were a body of Charity Commissioners[2], whose general functions were of “promoting the effective use of charitable resources by encouraging the development of better methods of administration, by giving charity trustees information or advice on any matter affecting the charity and by investigating and checking abuses.”[3] The general object of the commissioners was “to act in the case of any charity … as best to promote and make effective the work of the charity in the meeting the needs designated by its trusts.”[4]

(2) The Official Custodian for Charities was established[5], and the court and the Charity Commissioners might order that property held in trust for a charity might be vested in the Official Custodian for Charities[6];

(3) A registry of Charities was established and was maintained by the Charity Commissioners[7];

(4) The Charity Commissioners were empowered to institute inquiries[8] and to call for documents and to search records[9]; and where as a result of the inquiry the Commissioners were satisfied that misconduct or mismanagement occurred, the Commissioners were empowered to take steps to protect the properties belonged to the charity, including to remove charity trustee[10]; and

(5) The Commissioners had the same jurisdiction and power as the court in charity proceedings to establish scheme for the administration of a charity, to appoint and discharge, or remove trustees or other officers of a charity[11].

22.Those powers were subsequently deemed inadequate and in the Charities Act 1992, Sections 6 and 7 of the 1960 Act were amended so that for the purpose of inquiry, the Commissioners might require any person to furnish copies of documents and to verify them in a declaration, that the Commissioners might require any person to furnish them with any information, including such information recorded otherwise than in legible form[12].  The Commissioners’ powers to protect charities under s.20 of the 1960 Act was substantially expanded, including the power to appoint additional charity trustee, to order any debtor not to make payment to a charity, and to appoint a manager or receiver in respect of the property and affairs of a charity[13].

23.Further reforms were brought in under the Charities Act 2006 and later on under the Charities (Protection and Social Investment) Act 2016.

24.Compared with the English statutory regime, Hong Kong does not even have any charities legislation.  The inadequacy of protection by resorting to the role of the Attorney General as parens patriae had been highlighted in the common law context in an article written by an assistant Attorney General of Ohio[14].  The following inadequacies were identified in that article:

(a) The attorney general tends to deal with the most egregious violation;

(b) Due to the lack of funds and/or lack of interests, the attorney general tends to take out enforcement action infrequently and arbitrarily; and

(c) Because of the monopoly position of the attorney general, the legitimately interested parties are precluded from correcting the charitable abuses.

25.Against such background, the discussion in the English authorities in the context of the statutory regime in England cannot fully address the purpose to be served by section 57A(a)(iii) in the Hong Kong context.

26.Though the role of the Secretary for Justice as parens patriae to safeguard public interest in respect of charities is well-established under our common law, that cannot provide an adequate answer to the practical problems in terms of effective public supervision and accountability of charities.  In this connection, the Consultation paper and the Report of the Law Reform Commission on Charities for Published in December 2013 (“the Report”) had highlighted some of the problems.

27.At paragraph 5.2 of the Report, the current situation in Hong Kong was summarized thus:

“ 5.2 As discussed in previous chapters, and earlier in the Consultation Paper,1 there is no single piece of legislation in Hong Kong governing charitable organisations. Existing Government monitoring of charities is fragmented and is mainly confined to charitable fundraising activities …”

28.In chapter 5 of the Report, the sub-committee concluded that Hong Kong need to set up a uniform framework for governance, accounting and reporting by charities and recommendations were made in those regards.  At paragraph 5.13, the Report said:

“ 5.13 Based on the Sub-committee’s study of the reporting and monitoring mechanisms in overseas jurisdictions, it was concluded that a monitoring mechanism should be in place in order to serve the major objectives of transparency, openness and accountability to the donors and beneficiaries of charities and to the general public. It was observed that a monitoring mechanism which aims to achieve these major objectives would help to promote trust and confidence on the part of the public while meeting their philanthropic needs.”

29.The Report alluded to another aspect of effective monitoring at paragraph 5.108:

“ 5.108 We consider it important that the Administration should designate a Government bureau/department to take up the responsibility in relation to enforcement action to ensure compliance by charitable organisations…”

30.The significance of having a designated authority was further discussed in Chapter 9 of the Report in examining the proposal to set up a charity commission in Hong Kong.  At paragraph 9.2, the current problem was pinpointed as follows:

“ 9.2 As the Sub-committee had observed in the Consultation Paper and earlier in this report, there are a number of shortcomings in the existing system of regulating charities. Fundamental to these is the absence of a single regulatory authority administering a comprehensive, central register of charities. The current monitoring arrangements for charities and their fundraising activities appear to be fragmented and cumbersome, involving split responsibilities across different authorities, each applying different monitoring mechanisms and standards.”

31.For present purposes, the complimentary nature of the role of the Secretary for Justice and that of the charity commission was discussed at paragraphs 9.12 to 9.16 of the Report.  

32.In the end, the recommendation in the Report was that the setting up of a charity commission should be a long term goal.  In the meantime, the Sub-committee recommended the setting up of a registration system. 

33.The Report was published in December 2013.  As far as we are aware, the recommendations in the Report have yet to be implemented. 

34.We alluded to these aspects of the Report because what allegedly happened in the present case underscores the concerns raised by the Sub-committee.  As mentioned above, by way of postscript in her judgment, the judge did not rule out that there were matters that should be looked into.  The applicant told us that he had raised his concerns to various authorities but to no avail before he commenced these proceedings.  Ms Wong, who appeared on behalf of the Secretary for Justice, informed us that the applicant would have to provide the Department of Justice with more substantial evidence before the Secretary for Justice could take the matter further.  As such, the observation of the judge in the postscript may not yield any useful redress to the concerns. 

35.The stark reality is that under our present system, those in the Department of Justice have no resource or power to carry out any investigation.  Thus, unless a complainant can produce concrete evidence, it is unlikely that the role of Secretary for Justice as parens patriae could be effectively evoked.  But most complainants may have difficulty in procure proper evidence because they do not have the means to carry out the necessary investigation.  There are significant gaps in practice and in reality in the fulfilment of the role of the Secretary for Justice in protecting public interest in respect of charities.

The proper approach in the application of Section 57A(a)(iii) 

36.Against such background and context, we are of the view that the Court must not construe the expression “persons otherwise interested in the trust” narrowly.  Even in the context of the English scheme, Nicholls LJ cautioned against any attempt to offer a judicial definition for the expression in Re Hampton Fuel Allotment Charity [1989] Ch 484 at p.493B and p.494G:

“ 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 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 VC in Haslemere Estates Ltd v Baker [1982] 1 WLR 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.”

37.Likewise, neither Megarry VC in Haslemere Estates Ltd v Baker [1982] 1 WLR 1109 nor Hoffmann J in Bradshaw v University College of Wales [1988] 1 WLR 190 attempted to do so.

38.As there are many charities set up in different areas with different rules of governance, and the courts primarily decide the matter on the specific facts and circumstances of the cases, we respectfully find it not too helpful to extract some tests from one setting for application of the same to a wholly different one.  The operation of a Chinese Buddhist temple set up in the 1920’s in Tsuen Wan is self-evidently quite different from an English charitable trust in respect of land bestowed to a college in a university.  The tests derived from the latter may not be opposite for the former.

39.Though we have no disagreement with any of the propositions distilled by the judge from the English authorities, in the present case we think the most relevant ones are propositions (3) and (4).  They are basically a reiteration of Nicholls LJ’s observation that an applicant should 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.  In short, the requirement is to prevent charities from being vexed by busy bodies.   

40.In the context of the present appeal, we hasten to add that the interest in question need not be a legal interest or duty.  Having said that, the applicant must be able to pinpoint some greater interest than those of ordinary members of the public in the due administration of the trust. 

The determination of the appeal

41.Through no fault on the part of the judge, she examined the interest of the applicant (probably in light of the way in which the arguments were advanced by him) with reference to the status as holder of a licence, a Buddhist monk, the occupation of a room at the Temple and the person consulted, the hosting of events at the Temple on a point by point basis. 

42.However, as we understand it, the applicant’s case is not confined to these specific interests individually.  Rather, his contention is that based on the relationship of the Temple and the other Buddhist institutions at Fu Yung Shan in the past, the applicant as keeper of Hui Wan Memorial Hall and Guan Yin Grotto has an interest in the due administration of the trust.  The specific matters were merely instances where the close relationship were manifested.  In the course of the appeal, the applicant mentioned that some worshippers at the Temple had gone to him to complain about the affairs there.

43.This aspect of the case has not been sufficiently considered at the court below.  

44.In addition, with respect, we do not agree with the judge on her additional proposition at [72] of the judgment.  Section 57A(a)(iii) gives the court the power to provide such relief, make such order, or give such direction, as it thinks just relating to a charitable trust.  Thus, even if there is ground warranting intervention by the court in the administration of a trust, it has an overriding discretion to formulate the appropriate relief.  

45.Very often, in cases of this nature where an applicant is not fully conversant with the internal operation of those responsible for the administration of the trust, he or she may not be able to formulate the precise relief at the time when proceedings are commenced.  The scope and precise form of relief may have to be revised in light of the information disclosed by the trustees or those managing the affairs of the charity.  In the consideration of the standing of an applicant in bringing proceedings under Section 57A, the mere fact that the relief sought may appear at first sight to be extravagant may not be a sufficient ground for denying an applicant the access to court. 

46.In the present case, amongst the relief sought in the originating summons, prayers (1) and (2) cannot be regarded as extravagant.  As to prayer (3), it may be too intrusive.  But it is not a ground for holding against the applicant in terms of standing.  Hence, we cannot agree with [88] of the judgment.   

47.In the circumstances, there are errors in the judge’s assessment which warrant this Court’s intervention.  On the materials presently available, we are not prepared to dismiss the applicant’s case on standing though he should place the necessary evidence before the court, including the evidence on he being approached by some worshippers for assistance. 

48.Therefore, we allow the appeal and set aside the order of the judge striking out the proceedings and her costs order.  We further remit the summons of 25 July 2017 to the judge for reconsideration in light of this judgment and the further evidence that the applicant shall file.  The judge can give further directions on such further evidence, including evidence in reply from the Temple and the Secretary for Justice, as she thinks fit.

49.In light of the above, we need not determine on the admission of fresh evidence in the appeal.  We make no order on the summons of 29 December 2017.

50.Since the applicant has to come to this Court to set aside the order of the judge, we will make an order nisi that MWT shall pay the applicant the costs of the appeal (except the costs relating to the summons of 29 December 2017).  There will be no order as to costs with regard to the costs of the Secretary for Justice.  As for the costs below, they should be costs in the cause of the summons of 25 July 2017.

Hon Cheung JA:

51.I agree with the judgment of Lam VP.  In view of the paucity of cases in this area, particularly in context of Buddhist temples, I would add the following view of my own.

52.南懷瑾 (“Nan Huai Jin”) (1918-2012), a leading Zen (or translated as “Chan”) teacher of this era, stated in his book《中國佛教發展史略》(“A Brief History of the Development of Chinese Buddhism”) that Buddhism in China during its height at the Tang Dynasty had ten different schools of discipline with sub branches amongst each school. By the end of the Ching Dynasty, there were basically only three major schools (based on Chinese Buddhist tradition) left, namely,「禪宗」 (“Zen”),「淨土宗」(“Pure Land”) and「天台宗」(“Tiantai”), although there was a brief revived interest in Buddhism during the Republic era. This situation remains very much to be the same today. But unlike Occidental religions like the Catholic or Anglican faith, which has a leader at the top of its own hierarchical structure, these Chinese Buddhist schools do not have a central leader as such.

53.However, despite this fragmented approach, the common theme of Buddhism (in its simplest form) such as equality of all living beings and compassion, is observed by all Buddhists. They also have to observe precepts regulating behavior and thoughts.  For those who have taken the monastic vow to become monks or nuns, further precepts appropriate to their status are required to be observed on their ordination. There are also rules of the「叢林制度」(“monastic structure”) regulating the operation and management of Buddhist temples.

54.In my view at this stage, the applicant 釋照月(transliteration “Sik Chiu Yuet”) appears to be someone who has an interest materially greater than or different from that possessed by ordinary members of the public which may qualify him to bring this proceeding.  He is not just a ‘busy body’ nosing into the affairs of others.  He is an ordained Buddhist monk and an abbot of a Buddhist temple「觀音巖」(“Guan Yin Grotto”).  He resides at the nearby「虛雲和尚紀念堂」(“Hui Wan Memorial Hall”).  「虛雲大師」(“Master Hui Wan or Xu Yun”) (1840‑1959) was one of the most respected Zen monks of the modern age.  It appears there is a long‑standing historical connection of the temples in the hill known as「芙蓉山」(“Fu Yung Shan”), such as「觀音巖」(“Guan Yin Grotto”),「虛雲和尚紀念堂」(“Hui Wan Memorial Hall”) and「竹林禪院」(“Chuk Lam Sim Yuen”) managed by「曼華堂」(“Man Wa Tong”).  The applicant has received complaints from the followers of「竹林禪院」(“Chuk Lam Sim Yuen”) about mismanagement of its affairs and misuse of its assets.  He has sought help from the Authorities without success.  It seems the Authorities are taking a passive approach towards the events that had been happening at the「竹林禪院」(“Chuk Lam Sim Yuen”).

55.At this stage of the proceedings, the applicant’s claim of a ‘loosely organized family arrangement’ amongst「觀音巖」(“Guan Yin Grotto”) and「竹林禪院」(“Chuk Lam Sim Yuen”) which are Buddhist temples and which should in practice observe the rules of the monastic structure cannot be brushed away without further consideration at a full hearing.  Amongst the rules which「曼華堂」(“Man Wa Tong”) itself prescribed are the application of the surplus assets for charity and the prohibition of private use of temple assets.  As the applicant mostly eloquently submitted in Court, once he wears the gown of a Buddhist monk, he has a duty to ensure that people should not make money under the guise of Buddhism and cheat people in the name of religion.  In my view, whether the applicant is qualified to commence the proceedings to ensure that the complaints can be properly investigated by the Authorities needs to be reconsidered.

Hon Poon JA:

56.I agree with the judgment of Lam VP and the judgment of Cheung JA.  I just wish to highlight one important point on statutory construction of a provision modelled on some foreign equivalent.

57.It is axiomatic that in construing a statutory provision, the court must bear in mind its context and purpose.  While a particular statutory provision is modelled on some comparable provision in another common law jurisdiction, the relevant law in that jurisdiction may well inform the construction of the provision at hand.  But it is not definitive.  For one thing, our statutory regime may be markedly different from the foreign one.  For another, our local circumstances may be materially different, too.  Such differences may well drive the court to a different conclusion, in terms of statutory construction, from that in the foreign jurisdiction.

58.Here, as demonstrated by my Lords, while it would appear that section 57A of the Trustee Ordinance is modelled on section 33(1) of the 1993 English Charities Act, there are significant differences between the local and English statutory regimes.  And the local circumstances pertaining to Buddhist temples as charities are not found in England.  These differences must materially bear on the proper construction of section 57A.  They lead us to a wider construction than that adopted by the judge on “persons otherwise interest in the trust” and a different conclusion on the facts of the present case.

Hon Lam VP:

59.In the circumstances, the appeal is allowed and the order of the judge is set aside. We remit the summons of 25 July 2017 to the judge for reconsideration in light of this judgment and the further evidence that the applicant shall file. We also make an order nisi that MWT shall pay the applicant the costs of the appeal (except the costs relating to the summons of 29 December 2017).  As for the costs below, they should be costs in the cause of the summons of 25 July 2017.

The applicant appearing in person

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

Ms Percy Yue, instructed by Francis Kong & Co, Solicitors, for the 3^rd respondent