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HCA 1091/2018
[2021] HKCFI 3751
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 1091 OF 2018
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| BETWEEN |
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TAM BING CHOI |
1st Plaintiff |
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HUI LAI CHING JANET |
2nd Plaintiff |
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WONG PUI KWAN |
3rd Plaintiff |
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YIU MI KUEN |
4th Plaintiff |
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YIU MEI CHING |
5th Plaintiff |
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and |
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HUI SIM KIU |
1st Defendant |
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KOWLOON TONG BAPTIST CHURCH |
2nd Defendant |
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Before: Master Sabrina Ho in Chambers (Open to public)
Date of Hearing: 05 July 2021
Date of Decision: 23 December 2021
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DECISION
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A. Introduction
1.This is the substantive hearing of:
(a) The Plaintiffs’ Summons dated 9 December 2020 for leave to (i) amend the SOC as per the draft Amended SOC annexed thereto (“the December 2020 Draft ASOC”) and (ii) re-amend the Writ of Summons as per the draft annexed thereto (“the Amendment Application”);
(b) The Plaintiffs’ Summons dated 25 June 2021 to amend the 9 December 2020 Summons, so as to replace the December 2020 Draft ASOC with a revised draft Amended SOC (“the April 2021 Draft ASOC”) for the purpose of determining the Amendment Application. The April 2021 Draft ASOC was first disclosed as an exhibit to the 1st Plaintiff’s Affirmation dated 16 April 2021 in opposition to the Defendants’ Striking Out Application; and
(c) The Defendants’ Summons dated 13 January 2021 to strike out the Plaintiffs’ SOC (“the Striking Out Application”).
2.First of all, I will allow the Plaintiffs’ Summons dated 25 June 2021, such that the Plaintiffs are allowed to replace the December 2020 Draft ASOC with the April 2021 Draft ASOC for the purposes of their Amendment Application. The remaining applications which I will deal with below would be the Amendment Application (based on the April 2021 Draft ASOC) and the Striking Out Application.
B. Factual Background
3.I set out below the relevant factual background.
4.The Kowloon Tong Baptist Church (“the Church”), the 2nd Defendant, is a company limited by guarantee.
5.The Plaintiffs are members of the Church. They were also, at the material time, members of the Church Council (“the Council”), which is the governing body of the Church. The 1st Plaintiff was the Deputy Chairman of the Council at the material time.
6.The 1st Defendant was the Company Secretary of the Church at the material time until 31 December 2017.
7.The operations and proceedings of the Church are governed by its Articles of Association (“the Articles”). The Articles contain, inter alia, specific rules governing the appointment of various officeholders, as well as provisions which provide for the duty to record all resolutions in all meetings of the Church, the holding of council meetings (“Council Meetings”)and the requirement to carry out monthly meetings (“Monthly Meetings”).
8.At the Council Meeting held on 17 December 2017 (“the December 17 Meeting”), the Council discussed an item in relation to the appointment of the Church’s Representative to the Baptist Convention of Hong Kong (“BCHK”) for the year 2018.
9.In the minutes of the December 17 Meeting ( “the December 17 Meeting Minutes”), the Council was recorded to have passed the following resolution:
“會上通過將此議案由新一屆執事去處理最後名單事宜，但需要在2018年1月12號或之前遞交給浸聯會。”(“the Recorded Resolution”)
10.The thrust of the Plaintiffs’ case is that the Recorded Resolution, which was recorded by the 1st Defendant in the December 17 Meeting Minutes, did not reflect what was actually resolved at the December 17 Meeting. Instead, the Plaintiffs allege that the following resolutions (“the Plaintiffs’ Alleged Resolutions”) were actually passed at the December 17 Meeting:
(a) Chan Chi Mong Hopkins (陳之望) (“Hopkins Chan”) shall continue to be appointed as one of the nine Representatives;
(b) Lau Mei Mei shall be replaced by Lam Kong Sang as one of the nine Representatives;
(c) The other incumbent representatives would be consulted upon as to whether they agree to continue to serve as Representatives; and
(d) The remaining seven positions for the nine Representatives are to be appointed by the New Council of Management (ie those elected for the term 2018-2019).
11.Following from the above, the Plaintiffs allege that the 1st Defendant has acted in breach of Articles 16 and 37 of the Articles, Council Meeting Rule 2, and/or her fiduciary duties owed to the Church, in deliberately producing an incorrect version of the December 17 Meeting Minutes in an attempt to prevent Hopkins Chan from being appointed as one of the Representatives.
12.The Plaintiffs further allege, inter alia, that:
(a) The 1st Defendant inserted her own resolution into the agenda for the Monthly Meeting held in January 2018 (the “January Monthly Meeting”). As a result, the members failed to approve or discuss the Plaintiffs’ Alleged Resolutions at the January Monthly Meeting, but instead passed the 1st Defendant’s own resolution as recorded in Item 5 of the minutes of the January Monthly Meeting.
(b) The 1st Defendant failed to accurately record the business which took place at the January Monthly Meeting, including the explanation given by the 1st Plaintiff regarding the Plaintiffs’ Alleged Resolutions and the suggestion to allow the next secretary to rectify the December 17 Meeting Minutes.
(c) The 1st Defendant also refused to allow the next appointed company secretary, Mr Kitson Chin, to rectify the relevant records.
13.On 4 March 2018, the newly appointed Council (“the New Council”), of which the Plaintiffs were no longer directors after the expiry of their term of office on 31 December 2017, re-discussed the issue concerning the Recorded Resolution. On the same day, the New Council passed a new resolution (“the New Resolution”) to the effect that (a) Hopkins Chan shall not be a Representative, and (b) the Church would not nominate any Representative to the BCHK in 2018.
14.On 1 April 2018, Hopkins Chan ceased to be a member of the Church. He is therefore no longer eligible to be a Representative of the Church in BCHK. Instead, he has been formally admitted as a member of the United Brethen Baptist Church in early 2018 and was appointed as its representative to the BCHK.
15.By a writ dated 11 May 2018 (“the Writ”), the Plaintiffs commenced the present proceedings against the Defendants, seeking various declaratory reliefs, namely (“the Declaratory Reliefs”):-
(a) A declaration that the Plaintiffs’ Alleged Resolutions were duly passed by the Council at the December 17 Meeting;
(b) A declaration that no resolution was passed by the Council in terms of and/or with the effect as the Recorded Resolution;
(c) A declaration that the Recorded Resolution, and all subsequent resolutions and/or decisions of the Church which are inconsistent with the terms and/or effect of the Plaintiffs’ Alleged Resolutions, are and were at all material times void, invalid and/or otherwise of no legal effect;
(d) A declaration and/or order that the Recorded Resolution wrongly and/or mistakenly recorded in the December 17 Meeting Minutes be rectified to reflect the Plaintiffs’ Alleged Resolutions;
(e) A declaration that the Plaintiffs’ Alleged Resolutions have been duly approved and/or adopted by the Church at the Monthly Meeting of the Church held on 24 December 2017, and/or the minutes of the Monthly Meeting be rectified so as to reflect the aforesaid approval and/or adoption of the Plaintiffs’ Alleged Resolutions; and
(f) An order that the Defendants take all necessary steps to (i) give effect to the Plaintiffs’ Alleged Resolutions; and to (ii) rectify any minutes and/or resolution(s) of the Church to reflect the passage and/or approval of the Plaintiffs’ Alleged Resolutions.
16.On 13 May 2018, the New Council resolved to endorse and approve the original December 17 Meeting Minutes which contained the Recorded Resolution.
17.On 31 July 2018, the Plaintiffs issued their SOC containing allegations of the foregoing matters, and seeking the Plaintiffs’ Declaratory Reliefs as outlined above.
18.In response, the Defendants filed their Defence on 16 October 2018.
19.By the Amendment Application dated 9 December 2020, the Plaintiffs sought leave to amend the SOC as per the December 2020 Draft ASOC and re-amend the Writ of Summons.
20.By the Striking Out Application dated 13 January 2021, the Defendants sought to strike out the Plaintiffs’ SOC.
21.By the 25 June 2021 Summons:
(a) The Plaintiffs sought to amend the Amendment Application to have the December 2020 Draft ASOC replaced by the April 2021 Draft ASOC.
(b) The Plaintiffs did not seek to make any changes to the draft amended Indorsement of Claim in the Amendment Application.
C. The Amendment Application
22.As I have stated above, I would allow the Plaintiffs to replace the December 2020 Draft ASOC with the April 2021 Draft ASOC for the purpose of their Amendment Application.
23.The main debate between the parties in the Amendment Application is whether I should allow the Plaintiffs to add Section E and the Section E Reliefs (as defined below) to their Statement of Claim by way of amendment, as they concern matters which took place after the Writ was issued.
24.Section E in the April 2021 Draft ASOC is titled “Deprivation of the Plaintiffs’ Rights as Members under Article 7” (“Section E”). Under this section, the Plaintiff pleaded events which took place between 16 April 2019 and 15 July 2019, after the date of the Writ:
(a) On 16 April 2019, the Plaintiffs have been served an Order of Disciplinary Action by the Principal Pastor and the Chairman of the 2018 Council, which required them to vacate their positions at the Church and to cease taking part in the Holy Communion until they truly repent and apologise to the Church.
(b) In or around May 2019, the Council adopted the “Rules of Monthly Meeting” (“MM Rules”) which conferred upon the Chairman of the Monthly Meeting, inter alia, the power to bar a member from speaking, strip a member of his or her right to vote, and/or to order a member to leave a meeting.
(c) Each of the Plaintiffs submitted and completed a nomination form in around June 2019 to participate in the election of 17 Councillors of the Church for the term of 2020 to 2021 (the “Election”). However, on 15 July 2019, each of the Plaintiffs received a letter from the Council stating that they were ineligible and had been disqualified from standing in the Election as they failed to fulfil certain requirements by reason of their having commenced the present proceedings (the “Disqualification Decision”).
(d) In the light of the foregoing, it is the Plaintiffs’ allegations that (i) the 2nd Defendant was in breach of Article 7 of the Articles; and (ii) the Order of Disciplinary Action, the MM Rules and/or the Disqualification Decision were ultra vires the Council’s authority pursuant to Article 36 of the Articles.
25.Based on the complaints pleaded in Section E, the Plaintiffs seek four reliefs under §§6-9 of the Prayers of Relief (“the Section E Reliefs):-
(a) A declaration that the 2nd Defendant was in breach of Articles 7 and/or 36 by its adoption of the Order of Disciplinary Action, the MM Rules and the Disqualification Decision;
(b) An order that the Order of Disciplinary Action, the MM Rules and the Disqualification Decision are and were at all material times void, invalid and/or otherwise of no legal effect;
(c) An Order that the Plaintiffs, having satisfied the requirements stipulated in Article 7(ii), are eligible to stand at the election of Councillors of Management; and
(d) An Order for the reinstatement of the Plaintiffs’ rights under Article 7 to inter alia participate in all Church activities, including the taking part of the Holy Communion, singing in the Choir Team, attending Monthly Meetings and voting at Monthly Meetings.
C1. Applicable Legal Principles
26.The legal principles governing amendments of pleadings under Order 20 Rule 5 RHC are well established. They have been neatly summarised by Ng J in Hsu Ming Chi v Lam Shu Chit & Others (unrep, HCCL 8/2013, 22 October 2014) at §§13-18 and I will not repeat them here.
27.Where parties seek to include post-writ matters by amendment of their pleadings, the following legal principles are pertinent:
(a) Traditionally, the common law Eshelby rule provides that the Court may not amend a writ without the consent of the parties, so as to bring in a cause of action which did not exist at the time the writ was originally issued: Eshelby v Federated European Bank Ltd [1932] 1 KB 254; Wing Siu Co Ltd v Goldquest International [2003] 2 HKC 64, per Rogers VP at §18.
(b) After the Civil Justice Reform in 2009, the Court has taken a more flexible approach regarding the Eshelby restriction, particularly in the light of Order 18 rule 9, Order 20 rule 5 (1) and Order 20 rule 5 (5) of the Rules of the High Court. In recent cases, the Court has emphasised that its discretion under Order 20 rule 5(1) is a wide one and the decision in Eshelby does not create any inflexible rule. If there is no prejudice to the counter-party such as depriving him of defence like limitation, provided that there is close connection between the original claim and the post-writ claim, the Court may exercise its discretion to allow a party to amend its writ to bring in a post-writ claim: Chan Mei Lin v Lee Hong CACV 44/2015 (unrep, 3 December 2015) at §25 per Chu JA; Qianhai Xinhuakang Financial Holdings (Shenzhen) Ltd v Chen Jiarong [2020] HKCFI 823 at §61 per Lok J; Tasty Catering Group Ltd & Anor v Cheng Hung Kit & Ors [2021] HKCA 1211 at §24 per Kwan VP.
C2. Pleading of Post-Writ Matters
28.For the reasons set out below, I will allow the Amendment Application save for Section E and the Section E Declaratory Reliefs in the April 2021 Draft SOC. In other words, I will decline to exercise my discretion to allow the Plaintiffs to introduce the post-writ causes of action as contained in Section E and the Section E Declaratory Reliefs in their Statement of Claim.
29.First, the new complaints raised in Section E and the Section E Declaratory Reliefs have little connection with the matters pleaded in the Statement of Claim:
(a) In the Statement of Claim, the complaints were directed at the 1st Defendant and primarily concerned the 1st Defendant’s alleged breaches of fiduciary duties and/or certain Articles by reason of her alleged failure to record the Plaintiffs’ Alleged Resolutions in the minutes of the Council Meeting. The Church was only included as a nominal defendant (“the Current Complaints”).
(b) On the other hand, Section E and the Section E Reliefs are primarily concerned with the Church’s alleged adoption of the Order of Disciplinary Action, MM Rules and Disqualification Decision. These complaints have little to do with the dispute regarding the Recorded Resolution and the Plaintiffs’ Alleged Resolutions.
(c) The complaints in Section E are also entirely directed against the Church, which was initially only joined as a nominal defendant in the Statement of Claim. This reinforces my understanding that the matters in Section E and the Section E Reliefs have little connection with the complaints currently pleaded in the Statement of Claim.
30.Second, as a separate point, Section E and the Section E Reliefs fall outside of the scope of the Indorsement of Claim under the Amendment Application, as the Plaintiffs have not sought to include the Section E Reliefs into the amended Indorsement of Claim.
31.Third, I agree with the Defendants that the Plaintiffs’ introduction of Section E and the Section E Reliefs is an attempt to cure a statement of claim which is liable to be struct out by relying on post-writ causes of action. Such amendments should, therefore, be rejected:
(a) As I will discuss further below in Section D, the Plaintiffs’ claims (whether in the existing Statement of Claim or based on the April 2021 Draft ASOC but without Section E and the Section E Reliefs) are liable to be struck out as they have become academic.
(b) It is clear from the Plaintiffs’ own submissions that the complaints in Section E were pleaded for the purposes of refuting the Defendants’ suggestion in their Striking Out Application that the Plaintiffs’ entire claim was moot and academic. Hence, the post-writ causes of action were indeed included for the purposes of salvaging a statement of claim which is liable to be struck out.
32.In order to link Section E with the Current Complaints, the Plaintiffs further submitted that in the absence of Section E, it would be difficult, if not impossible, for them to lead evidence on the 1st Defendant’s breaches of Articles 16 and 37 as well as the MM Rules, and to seek a declaration compelling the 2nd Defendant to rectify its records to reflect the Plaintiffs’ Alleged Resolutions. This, in the Plaintiffs’ submissions, would prejudice them. I do not accept the Plaintiffs’ submission as I do not see any relevance of Section E to the above matters. Nothing in Section E touches upon Articles 16 and 37, as Section E is exclusively concerned with Article 7 (and at most Article 36 as well). Nor does Section E deal with any alleged breaches on the 1st Defendant’s part.
33.While the Current Complaints and Section E both have arisen from the internal disagreements and divisions between members of the Church, they are not so closely connected which warrant me to exercise my discretion to allow Section E and the Section E Reliefs to be included in the present action notwithstanding their post-writ nature.
D. The Defendants’ Striking Out Application
34.I now turn to the Defendants’ Striking Out Application.
35.The Defendants seek to strike out the Plaintiffs’ claim on the basis that it (a) discloses no reasonable causes of action; (b) is scandalous, frivolous or vexatious; and/or (c) is otherwise an abuse of process pursuant to O 18 r 19(1) of the RHC.
36.Having partially allowed the Plaintiffs’ Amendment Application as explained above, I will consider the Striking Out Application based on the April 2021 Draft ASOC without Section E and the Section E Reliefs.
D1. Applicable Legal Principles
37.The principles governing striking-out applications are trite and have been summarised by Ng J in Lau Wing Yan v Pacific Bulk Investments Ltd [2020] HKCFI 769 at §51.
38.As for the court’s jurisdiction to grant declaratory relief, the applicable principles have been succinctly summarised by DHCJ To (as he then was) in Koo Ming Kown v Rev Mr Mok Kong Ting (President of the Baptist Convention of Hong Kong) & Others [2018] HKCFI 967 at §§15-20. In summary:
(a) The court’s power to grant declaratory relief stems from its inherent jurisdiction, which is extremely wide.
(b) An applicant seeking to invoke the court’s jurisdiction to grant declaratory relief has to show:
(i) that he has a real interest in the subject matter of the declaration (the real issue requirement);
(ii) that he has a real interest in obtaining a declaration against the adverse party (the real interest requirement); and
(iii) that the adverse party is a proper contradictor (the proper contradictor requirement).
(c) Regarding the real issue requirement, where a serious justiciable issue is brought before the court by a party with genuine and legitimate interest in obtaining a decision against an adverse party, the court will adopt a practical utility approach by asking the question whether the court’s jurisdiction to grant declaratory relief was properly exercisable, instead of applying nice tests as if it were raising a strict jurisdictional issue (at §§17-18).
(d) As for the real interest requirement, “interest” in this context means a real interest of a material character to be enforced or protected, or a genuine and legitimate interest in obtaining a decision from the court against an adverse party, as opposed to one which is of a merely academic or hypothetical question or one raised out of curiosity. The question must be a real and not a theoretical question: the person raising it must have a real interest to raise it, that is to say, he must show an interest in the outcome of the relief sought as opposed to actually obtaining that relief in his favour (at §19).
(e) Finally, the other side of the same coin is reflected in the proper contradictor requirement, which requires the person seeking the declaratory relief to be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought (at §19).
39.More specifically, in relation to the real interest requirement and the question whether a declaration would serve any practical purpose:
(a) If a declaration would not serve any practical purpose, in that the declaration would not “solve a real difficulty” with which the claimant is faced, this would weigh heavily in the scales against the grant of a declaratory relief. That said, there is no requirement that a claimant must be in a position to demonstrate that he will benefit in a material or tangible way as a result of the declaration: Equis (Hong Kong) Ltd v George Allen Cowan [2021] HKCFI 768 at §39 per DHCJ Jin Pao SC.
(b) A dispute may cease to be of any practical significance where it has passed the stage of maturity, and is by now a “dead issue”. This may be the case where by the time proceedings had been instituted, there had been a change in circumstances which made the issue academic. Such a change could come about by a mere lapse of time, by the occurrence of some event, or by the abandonment of a contention by a party: see Zamir and Woolf: The Declaratory Judgment (4th edn) at §4.82.
(c) Where the question before the court is said to be hypothetical or academic because the real dispute that drove the parties to litigation happens no longer to be in existence at the time of the hearing even though the relevant facts giving rise to the dispute were real and had actually taken place, the court does have jurisdiction to hear and determine the question in issue. However, in deciding whether or not to do so (which is a matter of discretion), the court will closely examine the relevance or utility of any decision. This may be easier to demonstrate in the public law sphere than in relation to private rights. The discretion is to be exercised with caution and the court should only do so where there was good reason in the public interest: Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465 at §§20(2)-(3).
D2. Discussion
40.With these principles in mind, I will now turn to consider whether the Plaintiffs’ claim (based on the April 2021 Draft ASOC without Section E and the Section E Relief) should be struck out.
41.In gist, the Defendants advanced two main grounds in support of their striking out application:
(a) First, the subject-matter of the Plaintiffs’ action has now become academic. The Plaintiffs’ claim in this action all boils down to whether the resolution passed by the Council at the December 17 Meeting was the Recorded Resolution or the Plaintiffs’ Alleged Resolutions. However, given (i) the subsequent passage of the New Resolution which confirmed that Hopkins Chan shall not be a representative and the Church would not nominate any Representative to the BCHK in 2018; and (ii) the Council’s resolution on 13 May 2018 which endorsed and approved the December 17 Meeting Minutes containing the Recorded Resolution, the subject matter of the Plaintiffs’ action has already been entirely superseded by these later developments. As such, the Plaintiffs’ claim, and the Declaratory Reliefs sought by them, no longer serve any practical purpose.
(b) Second, whilst the Plaintiffs argued that the Church would continue to be embroiled by internal splits unless and until there is a determination by the court on the substantive facts as raised by the Plaintiffs in their SOC (as amended by the December 2020 Draft ASOC), the Defendants argued that questions regarding how the Church’s business is being carried out, as well as vague notions of “vindicating” the Plaintiffs, are not matters for which the court will concern itself with. In any event, they are not valid reasons for resuscitating an academic dispute in which the Plaintiffs have no real interest of a material character to be enforced or protected.
42.In response, the Plaintiffs made the following submissions:
(a) The dispute arose from specific facts which are already in existence. Therefore, following Chit Fai Motors, the court still has jurisdiction to hear and determine the question in issue, although it retains the discretion whether or not to do so.
(b) Furthermore, the dispute between the parties is still alive, as the splits and divisions within the Church remain unresolved as of today.
(c) The determination of issues raised in the present proceedings will also have practical consequences to members of the Church. It will, for instance, disclose whether or not there was any procedural irregularity as a result of the 1st Defendant’s act, whether the 2nd Defendant in condemning the Plaintiffs and in refusing to rectify the mistakes by the 1st Defendant was in procedural breach itself, and “whether the Plaintiffs were correct (in the legal and factual sense) to pursue litigation”.
(d) Finally, the present litigation has resulted in continued attacks against the Plaintiffs, and has taken a significant toll on the Plaintiffs’ spiritual life and membership rights in the Church as guaranteed under the Articles. These matters, according to the Plaintiffs, can only be resolved by the Declaratory Reliefs sought in the present proceedings, which have practical utility not only for the Plaintiffs’ private interest, but also for the wider public interest of members of the Church.
43.Having considered submissions from both sides, I have decided to allow the Defendants’ Striking Out Application. In so holding, I have borne in mind that striking out should only be ordered in plain and obvious cases.
44.First, the Plaintiffs’ claim (based on the April 2021 Draft ASOC without Section E and the Section E Relief) is now water under the bridge with no legal or practical utility.
(a) As the Defendants rightly submitted, the entirety of the Plaintiffs’ claim and the Declaratory Reliefs sought by the Plaintiffs all boil down to the question of whether the 1st Defendant knowingly recorded the Recorded Resolution, when she should instead have recorded the Plaintiffs’ Alleged Resolutions in the December 17 Meeting Minutes.
(b) However, the answer to this issue is beside the point now. Any doubt in this regard has already been reconsidered, and superseded by (i) the passage of the New Resolution on 4 March 2018 and (ii) the New Council’s approval of the December 17 Meeting Minutes on 13 May 2018. In such circumstances, I see no practical utility at all in making a decision on whether the Recorded Resolution or the Plaintiffs’ Alleged Resolutions should prevail.
(c) The corollary of this is that the Plaintiffs no longer have any real or legitimate interest in obtaining the Declaratory Reliefs, which have now become purely academic. As spelt out by the authorities, this weighs heavily against the grant of the Declaratory Reliefs.
45.Second, I do not agree that any alleged vindication of the Plaintiffs’ rights or resolution of the internal splits and divisions between members of the Church constitute valid reasons for the court to entertain the Plaintiffs’ claim:
(a) As HH Judge Lam (as Lam PJ then was) observed in 曾婉玲 v 兆隆苑業主立案法團 (LDBM 199/2011, 18 September 2001), the applicant’s proclaimed need to avoid one from being labelled by others as a trouble-maker which would damage his or her reputation, or the vindication of the applicant, are not prime considerations in the exercise of the court’s discretion in deciding whether or not to grant declaratory relief in the circumstances of that case (§§29, 33).
(b) Likewise, the fact that there remain internal splits within members of the Church does not by itself constitute a sufficient reason for this court to grant Declaratory Reliefs which have now become academic. This court is not a religious tribunal or the Church’s housekeeper.
(c) In any event, I disagree with the Plaintiffs that the determination of their claim would have the practical consequences they proclaimed. First, as I have discussed at length above, whether or not there was any procedural irregularity in respect of the passage and/or record of the Recorded Resolution in the December 17 Meeting Minutes is already of no real significance in light of the subsequent supervening events. Any suggestion that the present action would allow matters relating to the 2nd Defendant’s “procedural breach” to be ventilated does not stand either, as the December 2020 ASOC apparently makes no mention of any breaches on the part of the 2nd Defendant.
46.In view of the clearly academic nature of the Plaintiffs’ action, it is plain and obvious to me that the Plaintiffs have fallen foul of the “real interest requirement” for seeking the Declaratory Reliefs. There is, accordingly, no basis for granting the Declaratory Reliefs sought by the Plaintiff. The Plaintiffs’ claim should be struck out.
47.The Plaintiffs took a further point. In their submission, even if I find that the issues have now become academic and of no practical utility, this does not necessarily mean that the Plaintiffs’ claim comes under any heads of striking out under O 18 r 19. “Academic” is not equivalent to “lack of utility”, and the Defendants merely used the term “frivolous” in a non-legal sense.
48.Indeed, I observe that the Defendants’ submissions on striking-out are mostly centered upon the argument that the Plaintiffs’ claim has become academic, and there are only isolated references to the Plaintiffs’ claim being “frivolous” in the Defendants’ written submissions.
49.However, in fairness, the Defendants did in their Striking Out Summons specify the heads of striking out relied upon, namely the Plaintiffs’ actions (a) disclose no reasonable causes of action; (b) is scandalous, frivolous or vexatious; and is (c) otherwise an abuse of process. The Defendants also made clear, in both their supporting affidavits and written and oral submissions, their argument that the Plaintiffs’ claim has now become academic, as a result of which the Plaintiffs have fallen foul of the real issue, real interest, and/or proper contradictor requirements for seeking the Declaratory Reliefs.
50.I gather from the Defendants’ submissions, therefore, that the foregoing is the primary ground upon which the Defendants’ Striking Out Application is based.
51.Overall, I agree with the Defendants’ submissions. Given the clearly academic nature of the Plaintiffs’ claim, it is plain and obvious to me that the Plaintiffs no longer have any real interest in the subject matter of the Declaratory Reliefs, and any real interest in the outcome of the action. There is no basis for the court to now make the Declaratory Reliefs sought. Accordingly, I am satisfied that the Plaintiffs’ action discloses no reasonable cause of action and/or is frivolous. It should be struck out.
52.Crucially, contrary to the Plaintiffs’ submissions, the reason why the claim should be struck out has nothing to do with the fact the present case concerns alleged breaches of Articles by a religious organisation (or members thereof), rather than those by shareholders of a company.
53.Instead, what is pertinent in this case is the passage of the New Resolution and the subsequent endorsement of the December 17 Meeting Minutes on 13 May 2018, which means that the Plaintiffs’ action, including any allegations concerning alleged breaches on the 1st Defendant’s part in relation to the Plaintiffs’ Alleged Resolutions, have all become entirely academic and turned to dust. It is this fundamental fact which has led to my conclusion that the Plaintiffs’ claim discloses no reasonable cause of action and/or is frivolous, and is therefore liable to be struck out.
E. Conclusion
54.For all the above reasons, I will make the following orders:
(a) The Plaintiffs’ Summons dated 25 June 2021 is allowed.
(b) The Plaintiffs’ Summons dated 9 December 2020 is partly allowed. I will allow the Plaintiffs to amend the Statement of Claim as per the April 2021 Draft ASOC, save for Section E and the Section E Reliefs. I will also allow the Plaintiffs to re-amend their Writ as per the draft Amended Indorsement of Claim enclosed to the 25 June 2021 Summons.
(c) The Defendants’ Summons dated 13 January 2021 to strike out the Plaintiffs’ claim is allowed.
55.With respect to costs, I make the following costs order nisi:
(a) Costs of and occasioned by the Plaintiffs’ Summons dated 25 June 2021 be paid by the Plaintiffs to the Defendants in any event, to be taxed if not agreed;
(b) Costs of and occasioned by the Plaintiff’ Summons dated 9 December 2020 be paid by the Plaintiffs to the Defendants, to be taxed if not agreed;
(c) Costs of and occasioned by the Defendants’ Summons dated 13 January 2021 be paid by the Plaintiffs to the Defendants, to be taxed if not agreed; and
(d) Certificate for Counsel for the Hearing on 5 July 2021.
56.Lastly, I thank Counsel for their assistance.
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(Sabrina Ho)
Master of the High Court |
Mr Earl Deng, instructed by S C Ho & Co, for the Plaintiffs
Mr Richard Yip and Mr Anson Wong Yu Yat, instructed by So, Lung & Associates, for the Defendants
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