Yim Kow (釋衍隆) As Manager of Po Lam Tong (寶林堂) v. Kong Wing Hon (江榮漢) Otherwise Known As Sik Hin Fung (釋衍峰) Otherwise Known As衍峰 Otherwise Known As Sik Guo Lam (釋果林)

DCCJ 3583/2016

[2021] HKDC 1119

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3583 OF 2016

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Coram:  His Honour Judge H. Au-Yeung in Court

Dates of Trial: 27 – 28 July 2021 and 20 August 2021

Date of Judgment: 3 September 2021

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JUDGMENT

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BACKGROUND

1.In this action, the plaintiff seeks to recover vacant possession of the land known as Lot No.345 in D.D.358 and the extension thereto, Lot No.346 in D.D.358 and Lot No.347 in D.D.358, Tsuen Wan, New Territories (collectively, “the Land”) and the buildings erected thereon which are known as, among other names, “Kei Yuen” (“Kei Yuen”). 

2.The following facts are undisputed or not challenged:

(1)  Both 釋寶光and 楊裔禪were Buddhist monks. 楊裔禪was 釋寶光’s disciple. 

(2)  楊裔禪 had a lot of disciples himself.  A “Disciple Tree” can be seen at Annex A of this Judgment.

(3)  Sai Chuk Lam Zen Monastery (西竺林禪院), otherwise known as Sai Chuk Lam (西竺林) (“Sai Chuk Lam”), was and is a Buddhist Zen Monastery, and an unincorporated association of Buddhist monks.

(4)  The Land was originally purchased by 釋寶光and 楊裔禪in 1930.  They had caused Kei Yuen (祇園) to be built on the Land for the use of their disciples.

(5)  釋寶光and 楊裔禪 passed away in 1952 and 1955 respectively. 

(6)  Pursuant to 2 documents both entitled “Succession to Property” dated 23 September 1960 and 26 October 1960 (Memorial Nos.70610 and 70707 respectively), 楊郁參 (who was a disciple of 楊裔禪, and the chief managing monk (住持當家師) of Sai Chuk Lam since 1955) became the registered owner of the Land.  Although 楊郁參had died back in 1979, the legal title of the Land had not passed to anyone else up to today.

(7)  釋芝求 became the chief managing monk of Sai Chuk Lam in around 1973.

(8)  In around 1988/1992, 釋護求 (who was a disciple of 楊裔禪), invited the defendant (who became a Buddhist monk in 1984 in the Po Lin Monastery) to reside in Kei Yuen[1], which the defendant accepted.

(9)  The defendant moved to reside in Kei Yuen thereafter and his use of the Land and Kei Yuen was uninterrupted by any monks or representatives from Sai Chuk Lam or Po Lam Tong since then until 2004, when he received a letter from Messrs. Ho, Tse, Wai & Partners dated 7 June 2004 (which was stated to be issued pursuant to the instruction of the then chief managing monk of Sai Chuk Lam: 釋聖一), by which the defendant was demanded to, among other things, vacate Kei Yuen within 60 days. 

(10)  The defendant was one of 釋聖一’s disciples.

(11)  Po Lam Tong was and still is a t’ong within the meaning of section 15 of the New Territories Ordinance (Cap.97, Laws of Hong Kong).

3.In a gist, the plaintiff’s case is that:

(1)  The defendant was granted an oral licence by 釋芝求 (who was the then chief managing monk acting on behalf of Sai Chuk Lam) through 釋護求 in around August 1992 to manage Kei Yuen.

(2)  Since 1998, the overall right of Sai Chuk Lam, including the right to possess the Land and Kei Yuen, has been passed to Po Lam Tong.

(3)  The said oral licence had been terminated by virtue of the demand letter dated 7 June 2004 referred to above.

(4)  As a result, the plaintiff is entitled to an order of vacant possession against the defendant.  The plaintiff also asks for mesne profits from 21 July 2010 (6 years prior to the issuance of the writ herein) until delivery of vacant possession of the Land.

4.On the other hand, the defendant’s case is that:

(1)  楊郁參 had passed the ownership of the Land and Kei Yuen to 釋護求.

(2)  釋護求 had passed the ownership of the Land and Kei Yuen to the defendant as a gift.

(3)  In any event, the plaintiff lacked the necessary locus standi in bringing this action against the defendant.

(4)  As there is no evidence before the court regarding mesne profits, and no particulars of loss and damage was pleaded, no order on loss and damage should be made.

5.In my view, the main issues which this court has to resolve are as follows:

(1)  Whether the defendant had been given the Land by 釋護求as a gift?

(2)  Whether the plaintiff has locus standi to bring this action against the defendant?

(3)  Where liability is established, whether the plaintiff is entitled to recover mesne profits from the defendant, if so, the amount thereof.

6.Before I consider these issues, I should, as a matter of record, deal with the plaintiff’s application to rely on some new documents which was made and disposed of on the first day of the trial.

THE PLAINTIFF’S LATE APPLICATION

7.At the beginning of the trial on 27 July 2021, the plaintiff applied to insert further documents into the trial bundle.  They were documents set out in the plaintiff’s 2^nd Supplementary List of Documents which was only filed into the court on 22 July 2021 (i.e. 3 working days before the trial).

8.Having considered those documents, Mr Cheung for the defendant informed this court that he would only raise objection against the inclusion of a copy of declaration of 釋聖一 made on 29 May 2004 (“the new document”)[2].

9.Having heard submissions from the parties, I had refused the plaintiff’s application for the following reasons:

(1)  It would be unfair to the defendant if the new document was included at such a late stage without any adjournment of the trial.

(2)  To be fair to the defendant, if the new document were to be admitted, the defendant’s legal team should be given time to take instructions from the defendant, and if necessary, to serve further witness statements. This would unavoidably lead to adjournment of the trial which is a milestone date.  However, there were no exceptional circumstances justifying such an adjournment.

(3)  When the plaintiff made an application to amend the Statement of Claim on 14 July 2021, it was submitted by Mr Chan for the plaintiff that no further document would have to be produced even if leave to amend was granted (the application to amend was at the end of the day dismissed). 

(4)  Mr Chan explained that the new document was only found on 20 July 2021.  This I accept as a matter of fact.  However, this could not amount to a valid excuse, because this action was started 5 years ago in July 2016.  The plaintiff only had himself to blame if he did not cause a thorough search among his papers (and, if applicable, all papers of Sai Chuk Lam) to be done earlier.

(5)  In the course of his submission, Mr Chan confirmed that the relevant and disputed part of the new document had been covered by another declaration made by 釋聖一 (which was already included as part of the trial bundle) anyway.  That being the case, the plaintiff would not be prejudiced even if the new document was not incorporated into the trial bundle.

10.I had therefore dismissed the plaintiff’s application to rely on the new document at the trial, and granted costs of the plaintiff’s application to the defendant in any event, with certificate for one counsel, to be taxed if not agreed[3].

LIABILITY

Had the defendant been given the Land as a gift?

11.As mentioned above, 楊郁參 had become the registered owner of the Land in 1960.  Although he had died back in 1979, the legal title of the Land had not been passed to anyone else even up to today.

12.It is undisputed between the parties that the defendant started to reside in Kei Yuen in around 1988/1992 upon the invitation of 釋護求. As to the circumstances under which this invitation was made, the defendant pleaded the following matters in his Defence:

(1)  釋護求 invited the defendant and the defendant agreed to reside in Kei Yuen in 1988;

(2)  釋護求 told the defendant that Kei Yuen had been handed to him by 楊郁參;

(3)  釋護求 informed the defendant that he had once lived in Kei Yuen but had moved away to the urban area already;

(4)  釋護求 informed the defendant that no one was residing in Kei Yuen at the time;

(5)  釋護求 brought the defendant to Kei Yuen and the Land and handed over the key to Kei Yuen to the defendant;

(6)  The defendant then spent a month in cleaning, renovating and repairing Kei Yuen, and brought his own personal belongings, etc. to Kei Yuen, and has been residing there since then;

(7)  釋護求 had never returned to Kei Yuen.

13.When the defendant was cross-examined in court, he said that while he did not think about it at the time when he was handed the key to Kei Yuen by 釋護求, he started to realise subsequently (around 1 year after he had moved in) that Kei Yuen was actually a gift given to him by 釋護求.

14.The plaintiff strenuously denied that the Land had been given to the defendant as a gift.  The plaintiff contended that the defendant was only asked to manage Kei Yuen while he was living there pursuant to an oral licence granted by 釋芝求 on behalf of Sai Chuk Lam through 釋護求.

15.I have no hesitation in rejecting the defendant’s evidence that the defendant had been given the Land by 釋護求 as a gift for the following reasons:

(1)  The plaintiff’s claim herein is for an order of vacant possession of the Land.  If the defendant had really been given the Land as a gift, it is beyond imagination that he would have omitted to mention this extremely important fact in his Defence.

(2)  The plaintiff had also failed to refer to such an important fact in his witness statement. 

(3)  Mr Cheung argued that:

“while the word ‘gift’ was not specifically pleaded or stated in the D’s witness statement, acts of gift could be found in §5 of the Defence including the handover of the only key to Kei Yuen by Sik Woo Kau to D and the uninterrupted enjoyment of the Land and Kei Yuen by D for over 15 years. In fact, D also gave evidence in cross-examination that he did not realize the act by Sik Woo Kau was a gift at that particular moment, it was only in later conversation that he knew that the Land and Kei Yuen was passed to him as a gift, which makes perfect common sense.”[4]

With respect, I reject this argument.  The Defence was drafted by counsel.  I do not believe that the word “gift” or words to that effect would have been omitted if the defendant had ever informed counsel about it.  The defendant said he had told counsel about it.  This is unbelievable and I reject this evidence, because this contradicts his evidence that he had decided not to include this matter in his Defence (see the next sub-paragraph).  Further, it should also be noted that the “later conversation” referred to by Mr Cheung had admittedly taken place around 1 year after the defendant moved into Kei Yuen (i.e. in around 1989 according to the defendant’s case).  In other words, such a matter could have been included in the Defence which was only filed in August 2016.

(4)  I reject the defendant’s allegation that since he thought his assertion on “gift” was not an important matter at all, he did not mention it in his Defence.  This does not make any sense to me.  It does not require the defendant to have any legal knowledge for him to appreciate that it is important to state that the Land belonged to him when he was facing a claim which was brought in an attempt to evict him from the Land.

(5)  I also reject the defendant’s explanation that he did not include such an important fact in the witness statement because he planned to inform the court about this at the trial.

(6)  Taking into account the fact that the Land was purchased by 釋寶光and 楊裔禪 and that it had all along been used by their Buddhist monks disciples, it is inherently improbable that 釋護求 would have any intention in giving the Land to the defendant as a gift even if he had any right to do so.  This finding is also consistent with the defendant’s evidence that the Land had all along been passed from one generation to another generation of Buddhist monks (“一代一代咁交”).  In my view, it could not have been 釋護求’s intention to give the Land to the defendant as a gift as if the defendant could deal with the Land in whatever way he wanted.  The defendant had not explained why 釋護求 would suddenly depart from the previous practice.

(7)  Even according to the defendant’s own evidence, 釋護求 had repeatedly said “交俾你打理” to him.  In my view, this expression does not mean that the Land was given to the defendant as a gift.  This is more consistent with the plaintiff’s case that the defendant was only asked to manage the Land.

(8)  According to a Resolution dated 22 May 2004 signed by 釋護求 and 釋聖一, it was agreed between them that 釋聖一, in his capacity as the chief managing monk of Sai Chuk Lam, shall decide whether he or Po Lam Tong shall inherit Kei Yuen.  釋護求 would not have agreed to such a Resolution if he had given the Land to the defendant as a gift.

(9)  While it appears that the defendant had paid the electricity bill of Kei Yuen since 1992 and rates and government rent since 1997, in my view, it does not necessarily mean that the defendant had been given the Land as a gift, as he was living there alone.  Further, it must be borne in mind the unchallenged evidence of Yeung Suk Kau that the defendant only started to pay the bills when all Kei Yuen’s money had been used up.  Moreover, if 釋護求 had already told the defendant in 1989 that the Land was given to him, there is no reason why the defendant was not required to bear electricity expenses there and then.

(10)  It was submitted on behalf of the defendant that if the defendant was granted merely a licence, he would not have “spent his own money and put a great effort in renovating Kei Yuen after he moved in”[5].  I reject this submission.  First of all, there is no evidence that the defendant had spent any money as such.  Further, it should be noted that according to the defendant’s own evidence, he did not think that he was given the Land as a gift when he first moved into Kei Yuen, but on the other hand, he also told the court by way of his witness statement that he had spent a month cleaning, renovating and repairing after he had moved in.  That means it was not the defendant’s evidence that he was only willing to spend money or effort in renovating the Land upon being told that the Land was given to him as a gift.  These show that counsel’s submission is simply not supported by the defendant’s own evidence.

(11)  Mr Cheung for the defendant had reminded this court that the plaintiff or the chief managing monk of Sai Chuk Lam had not taken any action against the defendant in the period between 1988/1992 and 2004. I do not think this fact would assist the defendant.  It should be remembered that the plaintiff’s case is that the defendant had all along been occupying the Land as a licencee.  Hence, the defendant was occupying the Land legally until the alleged licence was terminated in 2004.  It is therefore not surprising that the plaintiff or the chief managing monk of Sai Chuk Lam did not take any action before it was decided in 2004 to terminate the defendant’s licence.

16.I also accept the plaintiff’s case that the defendant’s licence was granted by 釋芝求 in his capacity as the chief managing monk of Sai Chuk Lam through 釋護求.  I reject the defendant’s evidence that the authority to allow him to stay at Kei Yuen came entirely from 釋護求only.

17.In this regard, it is important to note the defendant’s acceptance of the following facts:

(1)  After 釋護求had invited the defendant to stay in Kei Yuen in 1988, 釋護求 brought him to Sai Chuk Lam;

(2)  Upon their arrival in Sai Chuk Lam, 釋護求went to talk to 釋芝求 who was the chief managing monk of Sai Chuk Lam at the material time;

(3)  Although the defendant was present when 釋護求was talking to 釋芝求, he could not hear what the conversation was about because of the distance between them (even though the defendant admitted that he could see them talking to each other);

(4)  It was after the conclusion of such conversation between 釋護求and 釋芝求 that 釋護求took the defendant to Kei Yuen.

18.The above matters are consistent with the evidence of Yeung Suk Kau, who gave evidence in court in support of the plaintiff’s case.  Amongst the plaintiff’s witnesses, Yeung Suk Kau is the only one who had witnessed personally what happened when the defendant was allowed to stay in Kei Yuen.  She said that the request for approval for the defendant to stay in Kei Yuen was made by 釋護求to 釋芝求, which the latter agreed.   I accept this evidence, as this is consistent with the undisputed fact that 釋芝求 was the chief managing monk of Sai Chuk Lam at the material time.  

19.There is a factual dispute between the parties on who actually handed over the key to Kei Yuen to the defendant.  Yeung Suk Kau stated that she saw 釋芝求 doing it, whereas the defendant said it was 釋護求 who gave him the key.  I hold the view that it does not matter whether it was 釋芝求 or 釋護求 who gave the defendant the key to Kei Yuen.  Even if it was 釋護求 who did it (as alleged by the defendant), I accept that, in the circumstances of the case, it is obvious that he was only doing it upon the approval of 釋芝求, the chief managing monk.  Mr Cheung submitted that it was quite improbable that the person giving the key and the person giving the licence would be different.  I respectfully disagree.

20.The defendant also alleged that 楊郁參 had passed the Land to 釋護求.  He submitted that this assertion was evidenced by the fact that the only key to Kei Yuen was passed to 釋護求.  I do not accept that this fact alone would support the defendant’s allegation, especially when it is undisputed that 釋芝求 was the chief managing monk at the material time.  

21.Before I leave this issue, I should also mention that while parties had raised a factual issue as to whether the defendant had secularized (還俗) and had ceased practising Buddhism, I do not think there is adequate evidence before the court for me to make any finding on this matter one way or another.   Given it is the plaintiff who raised this matter in the Reply, the conclusion is that the plaintiff has failed to prove this matter on the balance of probabilities.

The plaintiff’s locus standi

22.The present action has been brought by Yim Kow (釋衍隆) as manager of Po Lam Tong, which was and still is a t’ong within the meaning of section 15 of the New Territories Ordinance (Cap.97, Laws of Hong Kong).

23.The question is, does the plaintiff have the right to sue the defendant?

24.The plaintiff submitted that he has the right to sue because the rights to possess the Land have been passed from Sai Chuk Lam to Po Lam Tong since 1998.

25.I have doubt as to whether Sai Chuk Lam, being an unincorporated association which did not exist as a juridical entity, could hold any right to possess land as such.  In my view, the better way to look at the matter is to take it that all the monks of Sai Chuk Lam had the right to possess, and the chief managing monk or any other designated monk would have the authority to grant the right to possess on their behalf.

26.Having said that, the crux of the matter is still the same, namely, whether the right to possess had been passed to Po Lam Tong.

27.On this matter, the manager of Po Lam Tong (i.e. the plaintiff) and 釋衍芝 had given evidence in court.  However, the said manager informed the court that he did not know much about the transfer of right and that 釋衍芝should know about this better.  Indeed, the manager could not answer many of the questions raised by Mr Cheung during cross-examination.  His evidence is therefore unhelpful in this regard.

28.On the other hand, 釋衍芝 had explained more about the alleged transfer of right in court.

29.In 釋衍芝’s witness statement, she said that:

“其後，1998年左右，寶林堂接管西竺林禪寺的管理權。所以，現在祇園寺是由寶林堂管理的。”

30.When she was asked about the above evidence, she explained that:

(1)  She had heard from the powerful Buddhist nuns who stayed in the same quarters with her that a number of Sai Chuk Lam title deeds had been handed over to Po Lam Tong in 1998;

(2)  When she was assigned to take up the secretarial work of Po Lam Tong in 2003, she was given a file which contained the originals of the deeds of transfer in relation to 28 pieces of land which were transferred in 1998;

(3)  Those pieces of land were originally held by 釋芝求 and 釋聖一;

(4)  She had read those original deeds of transfer herself, and therefore she knew about the transfer.

31.However, it transpired upon her further clarification in cross-examination that the 28 pieces of land which she referred to were Lot Nos. 41, 42, 43, 45, 46, 47, 48, 49, 71, 72, 174, 202, 208, 271, 348, 349, 351, 352 and 357 of D.D.358 and Lot Nos. 198, 207, 211, 212, 214, 274, 440, 443 and 458 of D.D.431. 

32.The Land was not amongst them.

33.Hence, while I have no doubt that 釋衍芝had tried her very best to assist the court, I am afraid there is no valid basis for her to allege that the management right of the Land had been transferred to Po Lam Tong in 1998.  She had probably misunderstood the true position.

34.During cross-examination, 釋衍芝 also told the court that she had drafted a notice in around 2002 to be posted up at Sai Chuk Lam for the purpose of announcing that Po Lam Tong had sent a chief managing monk to Sai Chuk Lam.  However, that notice was not disclosed in the present action at all because she took the view that that notice is irrelevant, as it only concerned Sai Chuk Lam but not Kei Yuen.  I am of the view that that shows that Sai Chuk Lam and the Land (including Kei Yuen) should not be treated as if they were the same.  Even if there were any transfer of managing right of Sai Chuk Lam, it should not be treated automatically as if the managing right of Kei Yuen had been transferred as well.

35.This conclusion is supported by the demand letter dated 7 June 2004, in which the solicitors stated that:

“We act for Sik Sing Yat (釋聖一), the current chief managing monk (當家師) of and successor to Sai Chuk Lam Zen Monastery (西竺林禪院) otherwise known as Sai Chuk Lam Buddhist Temple (西竺林寺), Sai Chok Monastery (西竺禪院) and Sai Chuk Lam (西竺林) and the successor to Kei Yuen (祇園).”

36.If the right to possess the Land had been passed to Po Lam Tong back in 1998, I wonder why the demand letter was still issued upon the instruction of the chief managing monk of Sai Chuk Lam.

37.Mr Chan for the plaintiff argued that it had been pleaded in the Statement of Claim that such a letter was issued by Sai Chuk Lam “at the direction of Po Lam Tong”.  Such a plea was supported by the plaintiff’s evidence in his witness statement.  However, when the plaintiff was asked in court as to why “Po Lam Tong” was not mentioned in the latter at all, he said he did not know.  As the plaintiff only became the manager of Po Lam Tong in 2008 (4 years after the said demand letter was issued), I have great doubt as to his basis in alleging in his witness statement that the said demand letter was issued at the direction of Po Lam Tong.  I reject his evidence in this regard.

38.In addition to the evidence of 釋衍芝, the plaintiff also relied on the following documents to show that the right to possess the Land had been passed to Po Lam Tong:

(1)  Notices in the newspaper published in November 2003;

(2)  The Resolution dated 22 May 2004 signed by 釋護求 and 釋聖一;

(3)  A declaration made on 29 May 2004 by 釋聖一;

(4)  釋聖一’s application to inherit the properties held under the name of 釋承參 dated 14 March 2005;

(5)  11 letters dated October 2007 of chief managing monks of other temples.

39.I will deal with these documents in turn below.

Newspaper notices

40.From 6 November 2003 to 8 November 2003, a notice issued under the name of the then manager of Po Lam Tong was published in a local newspaper Oriental Daily.  The beginning of the notice reads as follows:

“由寶林堂轄下管理之西竺林寺 […]”

41.Insofar as it is the plaintiff’s argument that this shows that Po Lam Tong had taken over the management of the Land including Kei Yuen, I must reject such submission because, as discussed above, the transfer of managing right of Sai Chuk Lam to Po Lam Tong per se is not equivalent to the transfer of managing right in relation to the Land.

Resolution dated 22 May 2004

42.The Resolution dated 22 May 2004 reads:

“關於釋承參名下西竺林禪寺一切土地物業權益，我等一致同意由釋聖一以其作為西竺林禪寺主持當家身份決定由他本人或寶林堂承繼其土地物業。

關於釋芝求逝世後西竺林禪寺今後管理權，釋聖一以其作為包括以前任當家釋芝求名義而實應屬西竺林禪寺之銀行存款，我等亦一致同意由釋聖一或寶林堂接收寺院及管理。

關於祇園一切土地房屋物業權益，我等一致同意由釋聖一以其作為西竺林禪寺主持當家身份決定由他本人或寶林堂承繼其土地物業。”

43.Relying on the above Resolution, the plaintiff argued that the overall managing rights to Sai Chuk Lam would be passed to 釋聖一 and/or Po Lam Tong.  

44.In my view, this Resolution cannot assist the plaintiff for 2 reasons:

(1)  As aforesaid, even if the managing rights to Sai Chuk Lam had been passed to Po Lam Tong, this does not mean that the managing right to the Land (and Kei Yuen located thereon) had been passed at the same time;

(2)  The managing rights to the Land had not been mentioned in the Resolution at all.  As far as Kei Yuen is concerned, the Resolution only dealt with the succession thereof.

釋聖一’s declaration made on 29 May 2004

45.This declaration was made “by 釋聖一for the purpose of succeeding Kei Yuen Temple”[6]. The relevant parts of this declaration read:

“1. […]

2. […] 1992年8月份，西竺林禪寺第四代徒孫釋護求同情衍峰(Hin Fung, 姓江, Mr. Kong) 寄人籬下，居住簡陋，於是親自帶衍峰入住祇園聲明幫忙代為義務看屋。最近半年，發現衍峰意圖霸佔祇園寺。

3.         […]

4. 目前祇園為本來由本寺所派遣看守人所霸佔，本人決意收回祇園寺留為西竺林禪寺及寶林堂子孫今後發展用，原因如下：

(1) – (2) […]

(3) […] 由於目前祇園為本來由本寺所派遣看守人所霸佔，故此希望地政署體諒同情，恩恤批准本人接收繼承祇園，本人接收祇園之後，亦會立即轉交寶林堂管理，免得將來物業私相授受。

(4) 目前祇園土地分別是丈量約分358之345地段，345之申延地段，346地段及347地段。345及346地段原本於1930年由楊裔禪與釋寶光共同購入而345之申延地段及347地段則於1933年2月3日同樣由釋寶光及楊裔禪(又名釋裔禪)共同購入。釋寶光於1952年4月8日逝世而楊裔禪則於1955年3月30日逝世，他倆逝世後釋寶光名下之土地權益及楊裔禪名下之土地權益分別於1960年9月23日及1960年10月26日分別由釋郁參以徒孫(Grand disciple)身份理由獲得理民府批準，承繼祇園物業，本人亦為寶光/裔禪之徒孫，故此本人有責任收回祇園，希望政府批準本人正式繼承祇園，以作上述用途。” (emphasis added)

46.If anything, this declaration in fact contradicts the plaintiff’s case that the right to manage the Land had already been passed to Po Lam Tong, because it was stated therein that “本人接收祇園之後，亦會立即轉交寶林堂管理”.  This shows that the right to manage the Land had not been transferred to Po Lam Tong in 1998 as alleged.

47.Mr Chan argued that the words “立即轉交寶林堂管理” actually meant the transfer of legal title instead of managing right.  This argument is totally unmeritorious and is rejected.

釋聖一’s application to inherit properties held under the name of 釋承參

48.By this application made on 14 March 2005, 釋聖一 applied to inherit properties held under the name of 釋承參.  Mr Chan acknowledged that the Land was not amongst the 28 pieces of land included under this application.  However, he submitted that this application shows that if the intention of 釋聖一 was to pass the 28 pieces of land to Po Lam Tong, then the managing right in relation to those lands must have been passed to Po Lam Tong beforehand.  He then went further to say that the Land must have been intended to be treated in the same way, and as a result, it shows that the managing right thereto must have been passed onto Po Lam Tong beforehand as well.

49.This is a very bold line of submission which I reject.  I really cannot see how the said application could shed light on the issue of passing of managing right to the Land to Po Lam Tong.    

11 letters dated October 2007

50.Finally, the plaintiff relied on 11 letters dated October 2007 signed by the chief managing monks of 11 other temples in support of 釋聖一’s application to succeed the properties held under the names of 楊郁參 (including Kei Yuen) and 釋承參.  These letters were prepared at the request of Tsuen Wan District Office.  It is common ground that the application had not been approved up to today.

51.It appears that this was a step taken upon 釋聖一’s decision to make himself rather than Po Lam Tong as the successor of the legal interest in 祇園pursuant to the Resolution dated 22 May 2004 referred to above.

52.Again, I do not think these 11 letters can assist the plaintiff in establishing his case that the right of managing the Land had been transferred to Po Lam Tong in 1998.

The plaintiff’s fall-back position

53.Mr Chan submitted that the plaintiff’s fall-back position is that:

“Of course, as a fall-back position, P also claims that P has the right to possess the Land per se: the Land was first acquired by Po Kwong and Yeung Yui Sim for their Buddhist disciples of Sai Chuk Lam to practice Buddhism; in other words, Sai Chuk Lam is entitled to possess the Land; such right had then been passed to Po Lam Tong as stated above. Regardless of the existence of any licence, P still per se has better possession than D.”

54.In the light of this court’s finding above, I do not think this fall-back position would assist the plaintiff at all, because, under such a position, the plaintiff’s claim would still be defeated by his failure to prove that the right to manage the Land had as a matter of fact been transferred to Po Lam Tong.

Conclusion

55.For the above reasons, it is my finding that the plaintiff does not have the locus standi to sue the defendant, and therefore his claim herein has to be dismissed.

QUANTUM

56.In case I were wrong in my conclusion above, I would deal with the plaintiff’s claim for mesne profits below.

57.Although the licence was terminated in 2004, the plaintiff, recognising that his claim is subject to a limitation period of 6 years, only sought to claim mesne profits from 21 July 2010 (i.e. 6 years before the issuance of the writ herein).

58.Mr Cheung submitted that the plaintiff should not be allowed to recover any mesne profits herein because the particulars of the mesne profits were not pleaded, nor were they referred to in any of the witness statements served by the plaintiff.  There was no quantification nor mentioning of the basis of the plaintiff’s calculation of mesne profits.  As a result, the defendant all along did not know how the plaintiff would suggest to compute such mesne profits. The first time the plaintiff informed the defendant about the proposed way to assess mesne profits was when he served his opening submissions for the trial.

59.I accept Mr Cheung’s application.  The way in which the plaintiff conducted his claim of mesne profits had totally deprived the defendant of any chance to answer such a claim properly.  This is unfair to the defendant.

60.Mr Cheung suggested that if the plaintiff were to succeed in liability at the trial, the assessment of mesne profit should be conducted by a Master.  This is a very generous proposal.  However, since there was no order for split trial, I am not minded to make such an order even if the plaintiff has established liability successfully.

COSTS

61.I make a costs order nisi that the plaintiff shall bear the costs of the defendant (including all costs reserved, if any), with certificate for one counsel, to be taxed if not agreed.    The above order nisi shall become absolute in the absence of application to vary (which shall be made by letter, if any) within 14 days hereof. 

62.Any application to vary the costs order nisi and for leave to appeal, if any, shall, with the consent of the parties[7], be dealt with on papers.

Mr Stony Chan, instructed by Liu, Choi & Chan, for the plaintiff

Mr Lawrence Cheung and Mr Johnny Chan, instructed by Yu Hung & Co, for the defendant

Annex – “Disciple Tree”

Legend: box of the same horizontal level denotes same “generation”