Leung Siu Wan Iris, The Personal Representative of the Estate of Leung Yun Cheung, Deceased v. Tin Kwong Shin Tong Ltd

DCCJ 48/2018

[2020] HKDC 1066

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 48 OF 2018

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Before: His Honour Judge KC Chan in Court

Date of Hearing: 17 November 2020

Date of Decision: 17 November 2020

Date of Reasons for Decision: 20 November 2020

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REASONS FOR DECISION

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1.On the first day of trial, I ordered that the trial be adjourned and gave a number of directions with written reasons to be provided. These are my reasons.

2.It is common ground that the late Madam Leung Yun Cheung (“Leung”) had since early 1960s become very devoted to Buddhism, to learning and preaching it, and to setting up Buddha halls for that purpose.

3.The plaintiff who became the personal representative of Leung’s estate in the circumstances mentioned below now claims against the defendant for vacant possession of the subject property.

4.The defendant was incorporated on 30 June 1998 to take over and continue the affairs of 天光佛堂.  The defendant has been recognized by the Inland Revenue as a charity.

5.The plaintiff is all along legally represented while the defendant all along is not and is represented by Mr Lam Po Lung who is a director of the defendant and an officer of 仁光佛堂, the head branch of 天光佛堂.

6.The defence case in gist is that prior to 1975, Leung was appointed a preacher (點傳師) and had preached for, sought and obtained donations from followers for the purchase of the subject property to set up therein a Buddha hall in To Kwa Wan for the dissemination of Buddhism.  In 1975, Leung then used the donations as well as money from the Buddha hall to purchase the subject property, which was registered in her sole name.  A Buddha hall in the name of 天光佛堂was then set up using and occupying the subject property. Short witness statements by 9 followers, many of whom were already followers in 1975 and had donated money for the said purpose were filed by the defendant. It is also not serious disputed that since 1975 until to date the subject property has been used continuously and undisturbedly for over 40 years as a Buddha hall in the name of 天光佛堂.  The core of the defendant’s pleaded case, as expressed in its layman way, is that by reason of the above the subject property belongs to “大眾” for use as a Buddha hall.

7.However, the defendant being unrepresented has not made a counterclaim in respect of the subject property, so that even if at the end of the day the dispute were to be adjudicated in its favour, the court technically cannot grant any relief to the defendant.

8.Leung emigrated to Australia in 1998.  She died testate in 2015.  In Leung’s last Will prepared by a firm of solicitors dated 28 June1989, the mother of the plaintiff, who was the sister-in-law of Leung, was named the sole executor, and all of Leung’s personal and real properties (including the subject property) were devised and bequeathed to the plaintiff’s mother and one 朱文仙 jointly.  The plaintiff has no idea who 朱文仙 was.  However, according to Mr Lam, 朱文仙 had been the leader of 仁光佛堂, which as said was and is the head branch of 天光佛堂.

9.朱文仙 and the plaintiff’s mother have since also passed away.  On 28 November 2016, Letters of Administration with the Will Annexed of Leung’s Estate was granted to the plaintiff.

10.The plaintiff does not dispute Leung’s devotion to Buddhism or the use of the subject property by 天光佛堂 as a Buddha hall, but she does not accept that the money for the purchase of the subject property was obtained by donations or was taken from the Buddha hall.  Based on an unsigned note allegedly written in Leung’s handwriting dated the year 1998, the plaintiff’s case is that the subject property was allowed by Leung to be so used for more than 40 years under a license at will, which the plaintiff has now terminated.

11.It is in my view abundantly clear that by the facts, as referred to above, pleaded in the Defence and in the Further and Better Particulars of the Defence, the defendant is contending that 天光佛堂 was at the material time and still is a public charity for the advancement of religion, even though the exact words “public charity” were not used.  Ms Ling, advocating for the plaintiff, submitted that such was not the defendant’s pleaded case as the words “public charity” were not expressly pleaded.  With respect, I do not accept that submission.  It is trite that only material facts are required to be pleaded and not necessarily their legal effect.

12.Since the plaintiff is claiming for the ownership of a landed property against a defendant who might very well be held to be a public charity, the Secretary for Justice, as the protector of public charities, is a necessary party and ought to have been joined or to have been properly informed of this action so that she could take part, or could howsoever intervene, if she so wishes (for instance, as in Cheung Man Yu v Lau Yuen Ching & Others [2007] 4 HKC 314 and more recently Wan Hoi Yan & Another v Ho Chi Hung & Others HCA 2177/2013, unrep., 4 September 2019, DHCJ MK Liu).  This was not disputed by the plaintiff.  Unfortunately, the Secretary for Justice has not been joined or so informed, while it seems to me from present materials that the defendant has a substantial case that it was and is a public charity and the subject property was acquired in the manner and for the purpose as contended by the defendant.

13.In the premises, I adjourned and re-fixed the trial with the necessary directions so that the Secretary for Justice could be served with the core papers in these proceedings and could have an opportunity to join/intervene, if she should so wish.

14.Regarding costs thrown away by the adjournment, Ms Ling contended that the defendant was solely at fault in not joining or informing the Secretary for Justice and therefore should bear such costs.  In my view, the plaintiff, as the party claiming for a substantial interest against a party whom she knew or ought to have known might be held to be a public charity, was as much responsible as the defendant (if not more) for joining the Secretary for Justice as a necessary party.  The fair costs order was to make the costs thrown away be in the cause.  I so ordered.

Miss Ebony Ling, instructed by Marie Tsang, Dustin Chan & Co, for the plaintiff

The defendant represented by director, Mr Lam Po Lung