龐孟婷 v. 華人廟宇委員會

CACV 263/2019

[2021] HKCA 661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 263 OF 2019

(ON APPEAL FROM HCAL 506/2018)

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Before: Hon Lam VP, Chu and Au JJA in Court

Date of Hearing: 16 March 2021

Date of Judgment: 11 May 2021

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.By a Form 86 of 28 March 2018 as amended on 26 September 2018, the Applicant sought leave to apply for judicial review. The subject decision or other proceedings in respect of the relief was sought was stated to be as follows:

“ 1. Declaration that the Respondent’s confirmation of the change of membership of Man Wa Tong on the basis of the materials provided by Man Wa Tong received on 31 December 2017 was unlawful and invalid.

2. Declaration that the Respondent is required to comply with the Abridged Regulations of Man Wa Tong in confirming the membership of Man Wa Tong and dealing with Man Wa Tong’s management of the temple named Chuk Lam Sim Yuen.

3. Mandamus ordering the Respondent to perform its public duty imposed upon it by the Chinese Temples Ordinance and take all necessary action to ensure that the change of membership of Man Wa Tong and the management of Chuk Lam Sim Yuen complies with the Abridged Regulations of Man Wa Tong.”

2.The Applicant’s concerns are in respect of the affairs of a Tong (a Chinese customary unincorporated association recognized under Section 15 of the New Territories Ordinance, Cap 97) called Man Wa Tong (“MWT”) which manages a Buddhist temple called Chuk Lam Sim Yuen (“CLSY”) at Fu Yung Shan in Tsuen Wan.  CLSY was founded in 1928 by the Venerable Yung Chau building on land purchased with financial contributions from his 6 disciples.  Before he became a monk, Venerable Yung Chau was called Pong Yat Tung.  The Applicant is the grand-daughter of Pong Yat Tung.  The 6 disciples founded MWT with two further disciples joined in to become the 8 founders.

3.It is the Applicant’s case that the affairs of MWT have been run in contravention of its own Regulations as set out in the Abridged Regulations of 1985.  For present purposes, it is not necessary for us to go into the details.  It suffices to highlight that one of the main complaints of the Applicant is that there were people who should not be members according to the Abridged Regulations being nominated and accepted office as members of MWT and have been participating in the management of MWT.

4.The intended respondent was the Chinese Temples Committees (“the CTC”) which is a statutory body established under the Chinese Temples Ordinance (“the CTO”), Cap 153.  The CTC is the respondent in this appeal.

5.According to the Applicant, MWT falls within the purview of the CTO as a Chinese Temple and CTC as the statutory body overseeing the affairs of Chinese Temple should intervene.  There is substantial public interest because MWT held a substantial public asset: it owns land of 400,000 square feet and holds substantial fund as a public charity.

6.After a hearing on 9 May 2019, Lok J (“the Judge”) gave a judgment on 5 June 2019 refusing to grant leave to the Applicant to apply for judicial review.  The Judge held that there was no “decision” amenable to judicial review.  He also held that there were other channels providing for redress which had not been exhausted.

7.From that decision, the Applicant appeals to this Court.  After hearing submissions of the parties in the appeal on 16 March 2021, we reserved our judgment. 

8.We now give our judgment in the appeal.

9.From the reasons set out in judgment of 5 June 2019, the main reason of the Judge in refusing leave is that he could not discern any decision of the CTC which is amenable to judicial review.  Firstly, the Judge explained that the letter of 26 February 2018 from the CTC could not be a decision on the membership of MWT, see [17] to [20] of the judgment. Secondly, the Judge took the view that the CTC is ill-equipped to resolve the dispute concerning membership of MWT and the matter should be addressed by court in civil litigation, see [21] to [25] of the judgment.

10.We agree that the letter itself could not be read as a decision as such.  However, we are of the view that the significance of CTC’s reply to inquiries from others who have dealings with MWT concerning its membership should be viewed in the context of the role of CTC under the CTO and the overall context of the applicant’s complaint of failure on the part of CTC to act.  The reply of CTC to inquiries included reply to bank at which accounts of MWT are maintained.  It is at least reasonably arguable that the reply from CTC did have an impact on the actual operation of MWT as far as access to the funds in those accounts.  It is also reasonably arguable that the stance taken by CTC might affect the proceedings in HCA 2256/2017 as alleged in paragraphs 24 to 27 of the Form 86.

11.This brings us to the applicant’s complaint of failure to act which on our reading of the Form 86 was actually her main complaint.  See in particular paragraphs 34, 38, 42 and 43 of the Form 86.

12.As canvassed at the appeal hearing, in some circumstances a failure to act can be amenable to judicial review.  This is accepted by Mr Ma (appearing with Mr Tam) for the CTC.  The crucial question is whether the circumstances in the present case called for some actions on the part of CTC.

13.We have gone through some of the provisions of the CTO with counsel at the hearing.  It is a statute enacted in 1928 and the style of drafting is rather out-dated.  It is plain that there are some underlying assumptions regarding the power of CTC incidental to the due performance of its statutory role under the CTO.

14.In the overall statutory regime of CTO, it is reasonably arguable (and we put it no higher than that since the present appeal is only concerned with leave to apply for judicial review) that, having regard to the statutory objective set out in the preamble of the CTO and the respective roles and functions of the CTC and the Secretary for Home Affairs, the CTC is a statutory body tasked with the overseeing of the proper management, control and finance of Chinese Temples.  One of the means to achieve that is to make regulations on these matters under Section 3(1) of the CTO.  But it is not the only means (as the only regulations that have been made are the Chinese Temple Fund Regulations, Cap 153A and the General Chinese Charities Fund Directions, Cap 153B). 

15.It is also clear to us that it is reasonably arguable the CTC plays the role of exercising control over the finance of Chinese Temples (see Sections 7(1) and (6) to (8), 8(2) and 9 of the CTO).  It is also reasonably arguable that either the CTC or the Secretary for Home Affairs acts as the registrar for keeping the register provided under Section 5 of the CTO.  Though registration is to be effected at the office of the Secretary for Home Affairs (see Section 5(2) of the CTO), the evidence is that the actual handling of registration, requisitions on registration and dealing with inquiries are done by the CTC.  Reading Sections 5, 6, 10, 11 and 12 together, it is reasonably arguable that the CTC should intervene in cases where there is serious issue over the proper management of a Chinese Temple.  

16.Whilst the powers set out in the CTO are quite extreme, it is reasonably debatable that CTC has some implied powers to carry out the necessary functions to fulfil its statutory role, including the power to conduct inquiries with the Chinese Temple in question for determining if such explicit powers should be exercised. 

17.Though the Judge is correct in holding that the CTC does not have the adjudicative power of the court to make a judicial determination on the application of the Abridged Regulations to MWT, it does not mean that CTC can abdicate its administrative role prescribed under the CTO.  In that regard, we respectfully disagree with the Judge that CTC should only play a passive role and his analysis at [25] of the judgment.  For all sorts of reasons, the other legal proceedings may take time to reach a finding (assuming that such proceedings would come to trial) but in the meantime the public interest which the CTO entrusted the CTC to safeguard should not be ignored.

18.On the materials before the court, we are of the view that there are serious issues to be looked into and the Applicant’s challenge against CTC’s failure to act is reasonably arguable.

19.In her oral submissions before us, the Applicant mentioned many instances of the monks and supporters of MWT appealing in vain to the CTC to take positive steps.  These instances were not referred to in the Form 86 (as they should be) and they should be set out in the evidence. Likewise, the complaints that the current management of MWT had used the resources of the Temple in a manner inconsistent with the intention of the founders and the Abridged Regulations (insofar as they had been put to the CTC) are not currently within the scope of the judicial review.

20.We would not rely on these un-pleaded matters in the determination of this appeal.  In light of our decision in this appeal, it is up to the Applicant to consider whether she would seek leave to add these matters by re-amending her Form 86 and to file additional evidence in that regard.

21.In the premises, the Judge erred in his first reason for refusing to grant leave.

22.As regards the second reason of the Judge, the Judge seemed to take the view that the only thing that can be done to address the concerns of the Applicant over the affairs of MWT was a determination by the court on the membership of MWT.

23.With respect, such focus is misplaced.  As mentioned above, it is reasonably arguable that CTC has a statutory role to play in overseeing the management of a Chinese Temple and such a role is an administrative one which should function in tandem with judicial redress over the dispute on membership.  In the judicial review, the Applicant is seeking to compel the CTC to play its administrative role as opposed to the seeking of a judicial determination of the membership by the CTC.

24.Whilst the CTC cannot function as a court in making judicial determination, likewise the court cannot take up the administrative role of the CTC in overseeing the management and administration of Chinese Temple.

25.It is reasonably arguable that pending the judicial determination, the CTC should act administratively to safeguard the public interest as required under the CTO.

26.We therefore respectfully disagree with the Judge in his second reason for refusing leave.

27.By a Respondent’s Notice of 4 July 2019, the CTC contended that the Applicant has no standing to bring the present judicial review.  It is said that the Applicant has insufficient connection with MWT and the Temple and she has not shown any impingement of her own rights in public law.  Further, she has not shown an interest materially greater than or different from that possessed by ordinary members of the public which may qualify her to bring this application.

28.The law on standing has recently been reviewed by this Court in Kwok Cheuk Kin v President of Legislative Council [2021] HKCA 169.  As held therein, the issue of standing involved a multi-facet consideration in the particular context of a case.  Whilst there are cases where the standing of an applicant is founded upon his or her personal right or interest being directly engaged, there are other cases where the standing is founded on the applicant acting as a representative of wider public interest. The overarching question is whether the preservation of the rule of law requires standing be given to this applicant to ventilate the issue in question in light of his or her interest. 

29.The relationship between the Applicant and MWT is not confined to her being the grand-daughter of the founding monk.  Her mother had been the seal-keeper of MWT and, with the delegated authority from the then members, ran the affairs of the Temple like a de facto manageress.  Her mother resided and still resides at a house which situated within the land controlled by the Temple.  The Applicant also actively and regularly assisted her mother though her assistance was provided on a voluntary basis.  She was familiar with the history and affairs of MWT.  She brought these proceedings on her own resources as well as some supporting monks and followers of the founding members.

30.In our judgment, the Applicant is not a busy-body and she has raised reasonably arguable public law issues for the court to consider.

31.The principal issue to be considered in the judicial review is the role of CTC in overseeing the management of MWT in light of, according to the Applicant, repeated complaints from those having genuine and sufficient interest in the affairs of MWT.  The determination of the issue would have public law significance for CTC in the proper performance of its role management and administration of Chinese Temple in Hong Kong under the CTO.

32.We conclude that the safeguard of the rule of law requires standing to be given the Applicant to bring this judicial review.

33.Another issue raised by the Respondent’s Notice is that the reliefs sought in the Form 86 are inappropriate in that they are uncertain and infeasible and serve no practical purpose.

34.With respect, we do not agree with the submission of Mr Ma that the determination of the issue in this judicial review serves no utility.  It could at least clarify the role and power of the CTC under the CTO.  Whilst the exact form of relief may have to be considered in the substantive application, we are not satisfied at this stage that leave for the bringing of this judicial review should be refused by reason of lack of proper relief being sought.

35.For these reasons, we allow the appeal and set aside the order of the Judge (both in terms of refusal of leave and the order as to costs).

36.Exercising the discretion afresh, we grant leave to the Applicant to bring the judicial review and order that the costs of the application below be in the cause.

37.As regards the costs of this appeal, we shall make a costs order nisi that the Applicant’s costs in the appeal be in the cause of the judicial review application.  The Respondent should bear its own costs in any event.

38.This judgment is delivered in English.  If the Applicant needs interpretation assistance she can contact the clerk to Lam VP to arrange for oral interpretation by appointment at the High Court Building.

The applicant appearing in person

Mr Jimmy Ma and Mr Keith Tam, instructed by F Zimmern & Co, for the intended respondent