Wong Pui Ying and Others v. Kowloon Tong Baptist Church

HCMP 1332/2019

[2020] HKCFI 518

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1332 OF 2019

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Before:  Hon Mimmie Chan J in Court

Date of Hearing:  8 January 2020

Date of Judgment:  28 May 2020

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J U D G M E N T

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Background

1.The Plaintiffs in this case are members of the Kowloon Tong Baptist Church (“Church”).  These proceedings are instituted by them against the Church, to seek a declaration that the resolution of the Council of Management of the Church (“Council”) dated 14 July 2019 (“Resolution”) is null and void, for being in violation of Article 7 (ii) of the Articles of Association of the Church (“Articles”). They further seek, inter alia, a declaration that they are eligible to stand for election as Councillors of Management of the Church for the term 2020-2021 (“Election”), and an order that the Church should take all necessary steps to enable and facilitate the Plaintiffs to stand at the Election.

2.The proceedings were commenced by the Plaintiffs by Originating Summons, under section 729 of the Companies Ordinance (“Ordinance”), on the basis that the Council had engaged or was proposing to engage in conduct which constituted a breach of the Articles, such that they were parties affected by the breach and are entitled to remedies under section 729.  On 27 August 2019, the Plaintiffs applied for an interim injunction to restrain the Church by its Council to proceed with the Election which was scheduled on 31 August and 1 September 2019.  The Church undertook not to proceed with the Election until the determination of the Originating Summons, the hearing of which took place on 8 January 2020.

3.The facts are not disputed.

4.The Church was incorporated under the Ordinance in February 1967, as a company limited by guarantee.  The Memorandum of Association and Articles of Association were adopted for the Company upon its incorporation.

The Articles

5.Under its Articles, the business of the Church is to be managed by the Council.  The Council may (under Article 36) exercise all powers of the Church which are not required by the Ordinance or by its Articles to be exercised by the Church in general meeting, subject to any regulation of the Articles, to the provisions of the Ordinance, and to “such regulations, being not inconsistent with the aforesaid regulations or provisions, as may be prescribed by the Church in general meeting”.

6.Councillors or the Council of Management is defined in the Articles as the Councillors from time to time of the Church, as the majority of Councillors present and voting at a meeting of Councillors.  The Council is defined to mean a meeting of Councillors duly called and constituted or the Councillors assembled at a Council.

7.Regulations are defined to mean any regulations, rules, bye-laws and similar constitutions made from time to time by the Council for the conduct of the affairs of the Church.

8.Chapter II of the Articles governs membership of the Church.  Under Article 6, members of the Church are to abide by the teachings of Christ, obey the regulations of the Church and act upon the resolutions of the Council.

9.Article 7 states:

“The members shall be entitled:

(i)  To attend all general meetings of the Church and to vote thereat.

(ii)  To the privilege of electing officials and being elected at the general meetings, provided that in regard to the election of Councillors of Management, the candidate shall have been a member for 3 years and reached the age of 21 years.

(iii)  To advance suggestions regarding any divine work.

(iv)  To enjoy all privileges and benefits provided by the regulations of the Church.”

10.Articles 10 and 11 of the Articles provide for the staff and salaried workers of the Church.  Article 10 provides for honorary staff who shall not be given any emoluments, and these include the Assistant Pastor (who shall be elected by the general meeting of the Church) and the Councillors, who are to be decided and elected by the Church in annual general meetings.  Article 11 provides for salaried workers of the Church who are to be elected and recommended by the Council, for approval of the general meeting of members.  The salaried workers include a principal pastor, a preacher, and a clerk to assist the pastor in administering the work of the Church and to attend to its routine.

11.Chapter III of the Articles provides for meetings.  There are monthly general meetings of members of the Church, and meetings of the Council, which are held 2 days prior to the monthly general meetings of the members.

12.Article 19 provides for notice of general meetings.  This states that at least 7 days’ notice shall be given in the manner provided for in the Articles, or in such other manner, if any, as may be prescribed by the Church in general meeting, to all members of the Church.

13.Chapter VII provides for notices, and so far as relevant to these proceedings, Articles 69 and 70 provide as follows:

“69. A notice may be given by the Church to any member either personally or by sending it by post to him to his registered address, or (if he has no registered address within the Colony) to the address, if any, within the Colony supplied by him to the Church for the giving of notices to him.

Where a notice is sent by post, service of the notice shall be deemed to be effected by properly addressing, prepaying, and posting a letter containing the notice, and to have been effected at the expiration or 24 hours after the letter containing the same was posted.

70. If a member has no registered address within the Colony and has not supplied to the Church an address with the Colony for the giving of notices to him, a notice addressed to him and posted up in the Church shall be deemed to be duly given to him on the day on which it is so posted up.”

14.Finally, Article 73 states that any amendment to the Articles must be submitted in writing by at least 10 members of the Church to the Council for consideration, for the Council to convene an extraordinary general meeting of members to amend the Articles by special resolution, and subject to approval by the Registrar-General in writing.

15.Members of the Church had apparently proposed in 2014 to update the Articles of the Church.  Legal advice was sought, and at a meeting of the Council on 25 October 2015, the amendment of the Articles and the legal advice given was considered and discussed amongst the Councillors.  According to the minutes of the meeting, it was resolved that since the matter not urgent, the amendment of the Articles was not pursued and the decision was to compile a Members’ Handbook (“Handbook”) instead, but the amendment of the Articles was stated to be the ultimate aim.

16.On 15 January 2017, a draft Handbook was approved by the Council for further discussion by members.  At a monthly meeting of members held on 23 April 2017, the draft Handbook was approved by the members.

17.It is not disputed, that the Church had not, since October 2015, taken any further action to pursue the amendment of the Articles.

The election of Councillors and nomination of candidates for the 2020/21 Election

18.It is agreed, that pursuant to a Notice issued by the Church for nomination of candidates for the election of Councillors, the 1^st, 2^nd and 5^th Plaintiffs had participated in the election of Councillors in 2017.  This process was done by the submission of nomination forms signed by a nominator, and a declaration form signed by the nominee, by which the nominee completed his/her personal particulars and confirmed (in 2017) his/her fulfillment of the qualifications to be nominated (“Declaration”).  The nomination would be discussed by the current Council, and the candidates for election would be tabled before the monthly general meeting.

19.The election of Councillors for the term of 1 January 2018 to 31 December 2019 was held in October 2017, and the 1^st, 2^nd and 5^th Plaintiffs were all elected as Councillors for that term.

20.In 2019, the Church invited nomination of candidates for the Election of 17 Councillors for the term of 2020 to 2021.  A nomination form for candidates for the Election was issued by the Church in May 2019 (“Nomination”).  The Plaintiffs submitted the completed nomination forms and their respective Declarations to the Church in June 2019.

21.The Nomination states (in paragraph 3 of the notes) that each nomination would be examined (審核) or assessed by the “pastor team” as to the candidate’s qualifications, and that the list of qualified candidates would then be submitted to the Council for assessment, before the list of approved candidates was to be resolved or approved by the members at the monthly meeting as nominees. 

22.Paragraph 8 of the notes to the Nomination state the criteria for assessment of the candidates for the Election (“Criteria”) to be:

(1)  To comply with the biblical requirements under Acts 6:3 and 1^st Timothy 3:8-13 (“Bibical Requirement”);

(2)  To be a member of the Church, who is born again;

(3)  A nominee (either a baptized member of the Church or a member originated from another church) shall have been a member of the Church for at least 3 years at the time of nomination;

(4)  Attainment at the age of 21 at the time of nomination; and

(5)  Regular attendance at Sunday service for at least the past 3 years, has stable ministerial post and has actively taken part in church activities and ministry.

23.Each of the Plaintiffs signed the Declaration and submitted same with the Nomination signed by the nominator.  The Declaration signed by each of the Plaintiffs in 2019 states, inter alia, that the Plaintiff satisfied the Biblical Requirement, and had regularly attended service in at least the past 3 years.

24.At a meeting held by the pastor, the preacher and 2 other officers of the administrative staff of the Church (“Pastoral Staff”) on 5 July 2019, the nominated candidates for the Election were considered.  Out of the 42 members of the Church who had submitted Nominations and Declarations, the pastoral staff decided that only 23 were eligible to stand for the Election.  The minutes of the meeting record that the Pastoral Staff considered that there was specific (and named) conduct on the part of the 1^st Plaintiff, the 2^nd Plaintiff, the 4^th Plaintiff and 5^th Plaintiff which did not satisfy the Biblical Requirement, and further, that the 3^rd Plaintiff and 4^th Plaintiff had not regularly attended service.

25.At a meeting of the Councillors held on 14 July 2019 (“Council Meeting”), the Council was informed of the 42 nominations received.  The pastor explained at the meeting that the Pastoral Staff had assessed the candidates on the basis of the Criteria, that 23 nominees had satisfied such Criteria, and that the others had not.  The Council passed an ordinary resolution on 14 July 2019 that only the 23 nominees who had passed the screening or assessment of the pastoral staff could stand as candidates for the Election (“Decision”).  The Council also confirmed in the Decision that the other nominees, including the Plaintiffs, did not satisfy the Criteria.

26.The Plaintiffs were notified by a letter dated 15 July 2019 from the Council that they were not eligible to stand as candidates for the Election and had been disqualified from so standing.

27.The Plaintiffs, with the exception of the 4^th Plaintiff, wrote to the Church on 27 July 2019 and 1 August 2019 to complain about the Decision of the Church made at the Council Meeting on 14 July 2019.

28.On 28 July 2019, at a monthly members’ meeting, the members were informed that the Council had, on the basis of the Criteria, decided on the qualifications of the candidates nominated for the Election, and had approved the 23 nominees assessed by the Pastoral Staff in accordance with the Criteria.  The nominees were submitted to the members for approval, and the members voted on and accepted the list of 23 nominees for the Election.

29.On 4 August 2019, the Church posted on the notice board a notice of the Election to be held on 31 August 2019 and 1 September 2019 (“Notice”).  The 23 nominees were named in the Notice.

30.In the pastor’s letter issued by the Church in August 2019, reference was made to the 23 nominees for the Election to be held on 31 August and 1 September 2019.  In the weekly newsletter of the Church, the date of the Election was mentioned under “Sharing of Family Matters”, with reference to the 12 nominees.

31.On 27August 2019, the Plaintiffs issued the Originating Summons (“OS”) in these proceedings, seeking: (1) a declaration that the Decision and resolution of 14 July 2019 violate Article 7 (ii) and is null and void; (2) a declaration that the Plaintiffs, having satisfied the requirements stipulated in Article 7 (ii), are eligible to stand at the Election; (3) an order that the Church do take all necessary steps to enable and facilitate the Plaintiffs to stand at the Election; and (4) an Order that the Church do give proper notice of the Election to all members of the Church in accordance with Articles 69 to 71 of the Articles, and do hold the Election within 28 days from the date of the Order.

32.The Plaintiffs have not filed any factual evidence in these proceedings to challenge the substance of the Decision, that the Plaintiffs did not satisfy the Biblical Requirement (although the allegation of their failure to comply is denied).  The focus is on their claim that the Council had no power to include in the assessment of the candidates nominated for the Election any requirement over and above, or in addition to, the conditions of entitlement specified in Article 7 (ii): namely, that the candidate for election of Councillors shall have been a member for 3 years, and reached the age of 21 years (“Article 7 Conditions”).

The Handbook

33.The Church seeks to rely on the fact that Criteria are set out in clause 4.5 of the Handbook which had been approved and adopted by the Council since April 2017.

34.In its Foreword, the Handbook states that it had been accepted by the members, and that it was to briefly introduce the basic information of the Church.  It is also stated that the Handbook sets out the practices of the Church and the wisdom and experience of its elders.  The Councillors state that the Handbook had been compiled after long periods of discussion, that it sets out principles of guidance, and the Councillors expressed the hope that members can utilize and abide by the Handbook.

35.Chapter 3 of the Handbook sets out the organization of the Church.  The position of the Councillors are referred to paragraph 3.4.

36.Chapter 4 sets out the administration of the Church.  Paragraph 4.5 sets out the qualifications and principles of examination or assessment of candidates for the Council.  These include the Article 7 Conditions (in paragraph 4.5.1 and 4.5.2), the Biblical Requirement (in paragraph 4.5.3) and the requirement for regular attendance of Sunday service, etc.

37.On behalf of the Church, Mr Lam Kong Sang as the Chairman of the Council (“Chairman”) claims that the Council has power under the Articles to make regulations for the conduct of the affairs of the Church.  He claims that the Handbook “forms a part of and is adopted as the Church’s bye-laws for the regulation of the affairs of the Church”.  On such basis, it was argued that the Council was entitled to adopt the Criteria in order to assess the qualifications of the nominees.  The Chairman sought to explain that the Article 7 Conditions are “patently inadequate” for assessing the persons entitled to be elected as Councillors.  He explained that the Church is not a secular institution, or a mere company, but must follow the beliefs, practice and principles of the Baptist Convention.  The Councillors as leaders of the Church must have faith and Godly character, exhibit qualities of a good Christian, a good steward and a good servant as prescribed in the Bible, and that was the reason why the Biblical Requirement must be included in the assessment process.  He referred to clause 3.2 of the Handbook which sets out criteria for the selection of deacons of the church, namely: good reputation outside the church, being filled with the Holy Spirit and full of wisdom.  The Chairman also referred to the requirements of modesty, loyalty, self-restraint, not being greedy, etc which he suggests are all included in the Biblical Requirement.

38.Notwithstanding the claim made by the Chairman, that the Handbook was adopted as the bye-laws of the Church, there is no such evidence apart from his assertion.  The minutes of the meetings of the Council and of the members’ record otherwise.  The minutes of the meeting of the Councillors held on 25 October 2015 record that at the meeting, the Councillors had considered the legal advice obtained, namely, that the number of members of the Church had to be confirmed first, that 75% of the members had to approve of the amendment to the Articles, and that the amendment had to be approved by the Companies Registrar and the Inland Revenue Department.  As a result of the discussions made at the meeting, the Council resolved that due to the lack of urgency, and the extensive work required, the Articles would not be amended yet. The Councillors considered that of the matters which had been queried in the past, most of them related to the operation, administration and policies of the Church, and that it was sufficient to resolve on the compilation of an “administrative” handbook, although the ultimate amendment of the Articles of the Church would remain the ultimate goal.  The minutes further record that the compilation of the Handbook was to set out the existing documents, the information to be discussed at meetings of the Council and the decisions and policies which had already been resolved, to facilitate the future work of the Council, to serve “as a basis”, and to avoid unnecessarily long meetings and duplicated discussions in the future.

39.There was no mention in such minutes of any decision, that the Handbook to be compiled was to serve as the “bye-laws of the Church”, or to supplement the Articles, as the Chairman claimed.

40.At the meeting of the Council held on 15 January 2017, the Handbook was adopted and approved.  Again, there is no record in the minutes of the meeting that the Handbook was to serve as the “bye-laws of the Church”.

41.The Handbook itself does not state, for members’ information, that it served as bye-laws of the Church, and that the Handbook was to supplement the Articles and should be treated as such.

42.Even if the Council has the authority to make regulations for the Church, as the Chairman claims, the powers of the Council which may be exercised by it are expressly limited by Article 36 of the Articles.  Article 36 states that the Council may exercise the powers of the Church, subject nevertheless to any regulation of the Articles, to the provisions of the Ordinance, and to such regulations being not inconsistent with the aforesaid regulations or provisions as may be prescribed by the Church in general meeting.

43.Article 7 of the Articles provides expressly for the “entitlement” of the members.  These entitlements include the “privilege” of electing officials and being elected at the general meetings, provided that in regard to the election of Councillors of Management, the candidate shall have been a member for 3 years and reached the age of 21 years.  The privilege of being elected as a Councillor is only made subject to the 2 conditions set out in Article 7 (ii): membership in the Church for 3 years, and attainment of the age of 21.

44.I disagree with Leading Counsel for the Church, that the conditions are not exclusive.  On a plain reading of Article 7, there are only 2 conditions to the privilege, as set out in the proviso, and there is nothing in Article 7 which enables the Church to extend these only 2 conditions which limit the privilege conferred on the members.  It is not a case of the Articles being silent on the right or any restriction to the right (as distinguished from Wo Yu Wai and ors v The Federation of Hong Kong Chinese Travel Agents Limited and ors, unreported, HCMP 395/2010, 22 April 2010).

45.Any regulation purportedly made by the Council which extends the conditions on the privilege, and restricts the entitlement conferred under Article 7, are inconsistent with Article 7 itself, and outside the power and authority of the Councillors conferred under Article 36.

46.By incorporating the Church under and in accordance with the Ordinance, and by adopting the Memorandum and Articles of the Church, the Church submits to the secular jurisdiction of the Court and to the governance by the Ordinance.  The Court has made it clear in its decisions that religious associations and institutions which are incorporated are governed by the law applicable to companies generally, and that their members have rights under the articles of association of the company as well as under the Ordinance (Re Hong Kong Chiu Chow Po Hing Buddhism Association Ltd [2016] 1 HKLRD 513, and Re Kam Lan Koon [2015] 5 HKLRD 79).

47.The Biblical Requirement and any other spiritual and religious considerations relevant to the selection and appointment of members to lead the Church may well be relevant when members vote on persons nominated to be Councillors.  Members are not prevented nor hindered in any way by the Articles in this case from voting as they consider themselves to be guided by the principles and teachings enunciated either in the Handbook, or in the teachings of the Church.  However, the Councillors had no authority, by the Handbook, to add to the conditions of entitlement prescribed under Article 7, or to abrogate or restrict the privilege conferred under Article 7 (ii) on members. 

48.By disqualifying the Plaintiffs from standing for the Election, and not including them on the list of nominees to be voted upon by the members, the Council had deprived the Plaintiffs of their privilege conferred under Article 7 (ii).  As they were excluded from the list of nominees, they were deprived of the right to be considered by the members, as to whether they were suitable to the voted as Councillors and to be appointed to the Council.

49.Unless and until the Articles are formally and properly amended by resolution of the members, to include criteria other than the 2 Article 7 Conditions, and until the amendment has been accepted by the Companies Registrar and/or the Inland Revenue Department as may be required, the Church cannot use the Handbook to alter or revise the provisions of the Articles.

Procedural irregularities?

50.On behalf of the Church, Leading Counsel argued that the powers of the Court under section 729 of the Ordinance are discretionary, and the Court is entitled to take into account considerations, such as those underpinning the irregularity principle in Foss v Harbottle, in determining whether it is appropriate to acede to the grant of an order.

51.Counsel relies on WHC Limited trading as Wine High Club and others v Hong Kong Wine Chamber of Commerce Limited and Another [2019] HKCFI 2548, and the irregularity principle summarized therein:

“55. The irregularity principle is a well-settled principle that the court may decline to interfere despite procedural irregularities in the operation of a company. As it was put by Le Pichon J in Yip Peter V Asian Electronics Ltd [1998] 2 HKC 96 (at 1021-103B), the principle really comes to this: the lawfulness of a decision taken by a meeting of members or board cannot be questioned if the only fact alleged to make it unlawful is a mere informality and irregularity and the intention of the meeting is clear. This is particularly so if there is no evidence that the decision of the meeting would have been different if the correct procedure had been observed. Essentially, this is because equity will not interfere where an irregularity has been permitted if it is within the power of the persons who permitted the irregularity at once to correct it by calling a fresh meeting and dealing with the matter with all due formalities.

56. In the Court of Appeal decision of Re Dalney Estates Ltd [2018] 1 HKLRD 409, Godfrey Lam J (at §19-25) identified the four-fold rationale of the irregularity principle. First, there is the notion that if there was an irregularity in the making of decisions for the company, it is the company which has been done a wrong and the company alone who is the proper plaintiff to bring a suit for redress. Secondly, the Court’s traditional policy in the area of company law is that, generally, matters of internal management should be left to the company to be dealt with by its proper organ. Thirdly, when exercising its equitable jurisdiction, the Court generally does not act in vain, so that if what has been done irregularly is capable of being and will inevitably be confirmed by the majority, the Court will not interfere. Fourthly, there is a concern that courts would be unnecessarily inundated with internal disputes of companies if each and every breach of the articles in the conduct of the affairs of the company might be the subject of an action by any shareholder.

57. In Re Hong Kong Sailing Federation [2010] 1 HKLRD 801, Kwan JA explored the scope of exceptions to the irregularity principle. She endorsed the view (at §§48 and 49) that the law will not bother about irregularities at meetings unless there is a chance that they have influenced the result of a vote, and that in addition intervention must be appropriate. The pertinent question was whether a particular dispute was appropriate for determination by an ordinary majority. Thus, a shareholder was allowed to sue where acts were beyond the competence of an ordinary majority, as in the case of ultra vires, illegality or fraud on the minority, or where it was impossible or impracticable for members to sort things out for themselves.” (Emphasis added)

52.I reject the submissions made on behalf of the Church, that the Resolution and the Decision of the Council on 14 July 2019 are mere irregularities or informalities.  The Council simply had no power to resolve or decide to exclude the Plaintiffs from nomination and to deprive them of the right to be elected under Article 7 (ii).  The exclusion of the Plaintiffs from the list of nominees was not “a matter of internal management” to be left to the Council, nor can the Decision of the Council be confirmed by the majority of the members at their monthly meeting.  The members may decide ultimately not to vote for and select the Plaintiffs for a plethora of reasons, but they cannot approve the adoption of criteria which altered the conditions of members’ entitlement set out in Article 7, without an amendment of the Articles of the Church.   

53.The Articles constitute a contract between the company and its members, and between the members inter se, each member covenants that it will observe the provisions of the Articles.  In my view, the entitlement of the members and the privilege conferred upon them under Article 7 fall within the category of rights which are enforced by the Courts, and referred to in the part of the judgment in Towcester Racecourse Company Ltd v The Racehorse Association Limited [2002] EWHC 2141, cited by Leading Counsel for the Church.  After referring to various authorities, the Court observed at para 19 of the judgment:

“These decisions were concerned with the extent to which the members of a company could control the actions of the board of directors where the articles of Association listed in the directors exclusive control of the business of the company. They recognize and respect the rights of the members to enforce compliance with the articles in so far as the articles of association guarantee specific rights to the members as such. Obvious examples of this are the provisions governing the convening of general meetings and the rights of members to vote on resolutions at such meetings or the articles (if any) providing for the payment of dividends. But by the same token, in the absence of articles permitting the members to control the board, it is entitled to govern the company and exercise its powers without interference.” (Emphasis added)

54.The breach by the Council, in deciding to exclude the Plaintiffs as nominees by applying criteria not contained in Article 7 (ii), is not “a matter of internal management” of the Councillors acting within their powers.  The case of Kwok Ping Sheung Walter v Sun Hung Kai Properties Ltd [2009] 2 HKLRD 11 is therefore distinguishable.

Estoppel and adoption of the Criteria by the Plaintiffs?

55.The Church argued that the Plaintiffs were aware of and had agreed to the application of the Criteria, by standing for election as Councillors for the term 2017 to 2019, and by signing the Declaration in June 2019 for the Election.

56.The Nomination referred to the Criteria for nominees.  The Declarations signed by the 1^st Plaintiff, 2^nd Plaintiff and 5^th Plaintiff in 2019 stated (inter alia) that they had regularly attended service, and contained a statement of confirmation that the Plaintiffs satisfied the Criteria.  Such is the representation or conduct relied upon by Counsel for the Church.

57.As highlighted by Counsel for the Plaintiffs, even at the Council Meeting held on 20 August 2017 for the 2018 election (which was attended by the 1^st Plaintiff as one of the Councillors), the Pastoral Staff had reported that they had considered and assessed the qualifications of the nominees “in accordance with/on the basis of the Articles”.  The minutes of the meeting record this.

58.The mere fact that the Nomination had referred to the Criteria as the principles for assessing the qualification of nominees for the Council, and the acceptance by the Plaintiffs in their Declarations, that they comply with Criteria or the Biblical Requirement, cannot in my view amount to clear and unequivocal conduct on the part of the Plaintiffs, to give rise to any representation on which the Church can reasonably rely, for estoppel to apply.   The Criteria can be used by members of the Church when they consider the personal qualities of the nominees, and whether they are qualified and suitable to be selected as Councillors.  As stated earlier in this Judgment, the Biblical Requirement as well as other factors and consideration may legitimately come into play, when the members consider their selection and votes on the nominees.   Paragraph 8 of the notes in the Nomination can reasonably and objectively be read to mean, and to serve as a reminder to members and nominees, that the Criteria would be used in the ultimate selection of the candidates as Councillors.  By agreeing to the Criteria in the selection, the Plaintiffs cannot unequivocally be said or understood to have represented and accepted that the Criteria apply in place of Article 7 (ii), or are to have the effect of abrogating their privilege and right under Article 7 (ii). 

59.As for paragraph 3 of the notes, there is no clear reference to the Criteria being applied by the pastor team in the selection and assessment of the nominees, nor to the fact that the nominees may be excluded from the candidates submitted to the general meeting for voting and selection, for failing to comply with conditions other than the Article 7 Conditions.

60.As for the principle of estoppel by convention, I agree with Counsel for the Plaintiffs, that there is no clear evidence of any mistaken assumption shared by both the Council and the Plaintiffs, as to the application of the Criteria in place of or in addition to the Article 7 Conditions, with the consequence of nominees being excluded from the right and privilege to be put to the vote of the members in general meeting.

Notice of the Election

61.Having decided that the Decision to exclude the Plaintiffs as nominees for the Election was not lawful, it is not necessary to decide whether the notice of the Election had been properly served.  There is in fact no evidence as to whether notices had been sent to all members at their registered addresses, or the addresses supplied by the members to the Church for the giving of notices.  The Plaintiffs accepted that notice of the Election had been posted on the notice board of the Church.  However, that is deemed due service only for a member who has no registered address and has not supplied any address for service.  I agree that any reference to the Election in the informal newsletters and bulletins cannot constitute service as provided for under Articles 69 to 71.

Disposition

62.On the basis of my findings and for the reasons set out above, I grant the declarations and orders sought in paragraphs 1 to 3 of the OS. 

63.In view of the lapse of time from August 2019, it may not be appropriate to make the orders sought in paragraphs 4 and 5 with the timing stipulated.  No doubt further action may be required to be taken before the Election can be held and notice of the Election may be given in accordance with the Articles.  The parties should confer and if necessary submit a form of agreed order, as a result of the findings I have made. 

64.I further make an order nisi that the costs of these proceedings (including the costs reserved) are to be paid by the Church to the Plaintiffs.

Miss Kay Seto, instructed by Lui & Law, for the 1^st to 6^th plaintiffs

Mr Clifford Smith SC and Ms Annie Lai, instructed by So, Lung & Associates, for the defendant