龐孟婷 v. 華人廟宇委員會及另一人

HCAL 506/2018

[2022] HKCFI 1952

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 506 OF 2018

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J U D G M E N T

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A.  INTRODUCTION

1.By a Form 86 dated 28 March 2018 as amended on 26 September 2018 and re-amended on 23 June 2021, the applicant sought leave to apply for judicial review. The relief sought by the applicant 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 t’ong (a Chinese customary unincorporated association recognised under section 15 of the New Territories Ordinance, Cap 97 (“NTO”)) 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 (“Abridged Regulations”). 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 respondent is the Chinese Temples Committee (the “CTC”) which is a statutory body established under the Chinese Temples Ordinance, Cap 153 (“CTO”).

5.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.The applicant is a devout Buddhist who actively partakes in CLSY events. Her mother is Zhan Feng 詹豐, who assisted with the clerical duties and looked after the elderlies in CLSY. As stated above, the applicant’s grand-father is the late Venerable Yung Chau.

7.A relevant High Court Action is HCA 2256/2017, where MWT as the plaintiff sought to restrain the applicant as defendant from accessing CLSY. However, the applicant appears to be challenging the standing of MWT as the plaintiff owing to certain changes in the membership. As a result, on 5 February 2018 and on 10 February 2018, the applicant wrote to the CTC to confirm the membership of MWT. On 26 February 2018, the CTC issued a letter to the applicant in reply to her enquiring about the membership of MWT (“Letter”).

8.The applicant has raised numerous complaints in the Form 86 which were initially settled and amended by her previous legal representatives and re-amended by the applicant acting in person. In short, the applicant says that MWT falls within the purview of the CTO as a Chinese temple and CTC as the statutory body overseeing the affairs of Chinese temples should have intervened:

(1)  In contravention of the Abridged Regulations, there were people who should not have been nominated, accepted office as members of MWT and have been participating in the management of MWT;

(2)  The CTC issued the Letter in reply to the applicant about her enquiring about the membership of MWT, which the applicant took to confirm that there were such improper changes to the membership of MWT; and

(3)  In the circumstances, the CTC failed to act.

B.  PROCEDURAL HISTORY

9.On 9 May 2019, the applicant’s application for leave to apply for judicial review was heard before Lok J on an inter partes basis. On 5 June 2019, Lok J handed down judgment (“CFI Judgment”) refusing to grant leave to the applicant to apply for judicial review on the grounds that:

(1)  There is no “decision” amenable to judicial review; and

(2)  There were other channels providing for redress which have not been exhausted.

10.On 17 June 2019, the applicant applied to appeal against the CFI Judgment. On 16 March 2021, the applicant’s appeal against the CFI Judgment was heard before the Court of Appeal.

11.On 11 May 2021, the Court of Appeal handed down its judgment (“CA Judgment”). In the CA Judgment, the Court of Appeal found that the CFI Judgment contained errors in law in the grounds for dismissing the applicant’s application for leave to apply for judicial review. The Court of Appeal ordered, inter alia, that:

(1)  Standing be given to the applicant to bring this judicial review;

(2)  Leave be granted to the applicant to bring the judicial review.

C.  ISSUES IN THIS JUDICIAL REVIEW

12.The crux of this judicial review is the true and proper construction of the CTO. As submitted by the CTC, the following analytical framework would dispose of the judicial review:

(1)  First, what is the statutory framework of the CTO?

(2)  Second, is there a statutory duty upon the CTC to ensure that the internal management of a Chinese temple must comply with its articles (in this case, the Abridged Regulations)?

(3)  Third, if there is such a statutory duty, did the CTC fail to act in the present case?

(4)  Fourth, are the reliefs claimed by the applicant properly framed and appropriate?

D.  ISSUE 1: STATUTORY FRAMEWORK OF THE CTO

13.The CTO was enacted in 1928 from a bill introduced by two Unofficial Members of the Legislative Council on 5 April 1928, and passed with amendments on 26 April 1928.

14.The object of the CTO is the suppression and prevention of abuses in the management of Chinese temples and in the administration of their funds: Long Title of the CTO. It is thus concerned with management and administration, not with ownership: Secretary for Justice v To Kan Chi (2000) 3 HKCFAR 481, 496E-F per Bokhary & Chan PJJ.

15.In addition to the object set out in the Long Title, the Objects and Reasons for enacting the CTO are, based on the Hansard (First Reading on 5 April 1928), summarised as follows:

(1)  The CTO will not interfere in any way whatsoever with genuine Chinese religion.

(2)  The CTO will tend to prevent religion being made a source of private gain.

(3)  The CTO will go far towards preventing the misuse of religion by adventurers who prey on the more ignorant members of the community.

(4)  The CTO will bring under the control of the CTO revenues of temples where there are private individuals who use the revenues for their own benefit.

(5)  Revenue brought under the control of the CTO will first be applied to the due observance of the customary ceremonies and the maintenance of the temple buildings and temple properties with the surplus transferred to the General Chinese Charities Funds.

16.To make such control effective, all Chinese temples will have to be registered under the CTO.

17.The subsequent amendments to the CTO were primarily directed at the membership of the CTC.

18.At present, the CTO requires that all Chinese temples must be established or maintained in complete and separate buildings used solely for the purpose of such temples (section 4). It also stipulates that all Chinese temples must be registered with the Secretary for Home Affairs (“SHA”) in accordance with the CTO (section 5) and that no person is allowed to take part in the establishment of any unlawful Chinese temple (section 6). It also provides that “the revenues, funds, investments and properties of all Chinese temples shall be under the absolute control” of the CTC (section 7(1)); that the CTC has the power to require a person who possesses or controls the property of any Chinese temple to transfer such property to the SHA Incorporated (section 7(6)); that the CTC has the power to close any temple that falls into disuse (section 12); and that the SHA can authorise any person to enter and search any Chinese temple that may have breached the CTO (section 14). Contravention of the said provisions of the CTO shall be liable to a fine of $1,000 on summary conviction.

19.The statutory framework of the CTO was considered by the Court of Final Appeal in Secretary for Justice v To Kan Chi (Ibid). In the joint judgment of Bokhary and Chan PJJ at 496E-I, it was held as follows:

“ As we have seen from its long title, the Ordinance’s purpose is the suppression and prevention of abuses in the management of Chinese temples and in the administration of their funds. It is thus concerned with management and administration, not with ownership. It does not expressly deal with ownership or purport to deprive any owner of his property. Nor does it provide for compensation to be paid for the loss of any property rights.

Section 7 is concerned solely with control. Subsection (1) thereof confers on the Chinese Temples Committee control of “the revenues, funds, investments and properties of all Chinese temples”. Of course nothing in the Ordinance obliges the Committee to intervene willy-nilly. If it can see that a temple and its funds are being properly managed, then the Committee can consistently with its public duty leave the day-to-day management of that temple and its funds in the hands of its owners or managers. But the Committee has the ultimate power of control. In order to make such control effective, sub-s.(6) authorises the Committee to require any person in whom temple property is vested to transfer the property to the Secretary for Home Affairs Incorporated.” (Emphasis added)

20.In my view, it is thus clear that the “control” conferred on the CTC by the CTO is control over “the revenues, funds, investments and properties” of the Chinese temples. This is made clear in the same judgment at 497B

“… It follows that the Committee has ultimate control and powers of management over such property, and may in its discretion require the same to be transferred to the Secretary for Home Affairs Incorporated. The income for the time being from such property must be applied, whether by the Committee or the t’ong Tsing Wan Kun, in accordance with s.8.” (Emphasis added)

E.  ISSUE 2: NO STATUTORY DUTY TO ACT IN THE PRESENT CASE

21.The remarks raised by the Court of Appeal in the CA Judgment will be considered first. In summary, the Court of Appeal considered it reasonably arguable that:

(1)  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 SHA, the CTC is a statutory body tasked with the overseeing of the proper management, control and finance of Chinese Temples. The CTC plays the role of exercising control over the finance of Chinese Temples (see: CTO sections 7(1) & (6)-(8), 8(2) & 9). Either the CTC or the SHA acts as the registrar for keeping the register provided under section 5 of the CTO.

(2)  Reading CTO 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. The 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. Pending the judicial determination, the CTC should act administratively to safeguard the public interest as required under the CTO.

22.To begin with, CTC does not dispute that the CTC has a statutory duty to oversee the proper management, control and finance of Chinese temples.

23.The real question is the extent of the CTC’s statutory duty in overseeing the management of Chinese temples, as opposed to their finances.

24.Much is to be said about the exact scope of the CTC’s duties. CTC submits that the duty does not extend to the CTC taking steps to resolve disputes over the membership of a Chinese temple. Nor does the CTC have a duty to ensure compliance with the Abridged Regulations.

25.The very intent of enacting the CTO is to prevent Chinese temples being run for private gain by empowering the CTC under the CTO: Hansard. One of such powers is CTO section 7(1), which gives the CTC “absolute control” over the “revenues, funds, investment and properties” of all Chinese temples.

26.However, the CTO does not impose a statutory duty upon CTC to ensure that the internal management of a Chinese temple must comply with its Abridged Regulations. I agree with CTC’s submission that sections 7 and 8 of the CTO only relate to the management and application of the revenues and funds of Chinese temples. This would also be the prevailing public policy as contemplated by the legislative intent behind the CTO since the CTC is not equipped with any inquisitorial or quasi-judicial powers in its arsenal to handle disputes in the internal management of a Chinese temple.

27.Save as otherwise expressly provided for in the CTO, it is undesirable that the CTC be called upon to micro-manage the internal workings of every Chinese temple and resolve every single dispute arising from the management of Chinese temples. To do so would be over-extending the very purpose and intent of the CTO, thereby swamping the CTC with potential claims as to non-compliance with its Abridged Regulations or any remotely related disputes.

28.Moreover, it is important to bear in mind that the applicant’s complaint is against the membership change in MWT. The Abridged Regulations is the regulations of MWT. Crucially, MWT is a t’ong and registered under section 15 of the NTO, not the CTO. Generally, there is no power under the NTO to resolve any disputes on matters of internal management of a t’ong, even for a District Officer: see, for example, To Kin Wah v Tuen Mun District Officer, HCAL 105/2002 (unrep, 27/08/2004) at §7(8)-(9). In particular, whilst the District Officer would always be ready to help with the resolution of disputes between villages, he has no power to make any binding ruling on matters of internal management of a t’ong.

29. A fortiori the CTC does not have the duty or the power to ensure that MWT complies with the Abridged Regulations. The procedure in which the CTC processes changes in the membership of MWT is simply to abide by the NTO whereby any changes of manager/manageress of a t’ong are to be dealt with by the Home Affairs Bureau. The purpose of the CTO is not to fill in any supposed lacuna regarding the management of t’ongs under the NTO.

F.  ISSUE 3: THE CTC IS NOT IN BREACH OF ITS STATUTORY DUTIES

30.Even if there was a statutory duty upon the CTC to act, I agree the CTC was not in breach of its statutory duties in the present case. The applicant’s complaints do not trigger CTC’s duties in this case. The exact nature of the applicant’s complaints must be carefully considered.

31.In this regard, the Court of Appeal in the CA Judgment considered it reasonably arguable that:

(1)  The reply from CTC did have an impact on the actual operation of MWT as far as access to the funds in the bank accounts was concerned; and

(2)  The stance taken by CTC might affect the proceedings in HCA 2256/2017 as alleged in paragraphs 24 to 27 of the Form 86.

32.The CTC will, from time to time, distribute forms to Chinese temples, seeking updated information. As it can be seen, the function of the CTC is primarily administrative, it is to enable the CTC to be satisfied that Chinese temples are still fit to be run as such:

(1)  What is telling is the particulars sought under CTO section 5(2) are only “supplied in order to effect registration”. CTO section 5(2)(d) does not ask for the individual names of the controlling committee of a temple, but only “the nature or intended nature of the control of the temple, that is to say, whether by a committee or by a family or by an individual, and the title of the committee or the name of the family or individual”.

(2)  The information is for the CTC to maintain a proper record so that the CTC may exercise proper and effective control over the Chinese temples in accordance with the CTO. It is not the function of the CTC to confirm if all the details supplied would comply with the Abridged Regulations as suggested by the applicant.

33.Private enterprises, such that the Shanghai Commercial Bank, do from time to time make enquiries with the CTC as to various matters, including the membership details of Chinese temples registered under the CTO. The CTC would reply with what was stated in its records as provided by MWT.

34.Upon examination of the Letter, the CTC merely stated what it had in its records:

“ 就閣下於2018年2月5日及10日來函，向本委員會要求提供曼華堂（竹林禪院）向華人廟宇委員會提交的成員名單和最新成員數目的查詢。…

根據本委員會記錄，竹林禪院曾在2014年7月19日致函本委員會秘書處，曼華堂成員數目為6名（見附件一）。竹林禪院在2017年12月電郵知會委員會其成員名單有變，曼華堂成員數目為4名（見附件二）。” (Emphasis added)

35.The CTC did not warrant anything about the membership of MWT when it was disclosed to the applicant or to the inquiring banks:

(1)  The CTC confirmed that the applicant requested for the list of members and the number of members that MWT submitted to CTC.

(2)  The applicant’s request in her letter dated 5 February 2018 was unequivocally asking for the records kept with the CTC: “本人現要求華人廟宇委員會提供本人有關曼華堂（竹林禪院）在華人廟宇委員會註冊的成員名單”. (emphasis added)

(3)  In the Letter, the CTC expressly stated in no unclear terms that the CTC was referring to its own records only and confirmed that the applicant requested for the list of members and the number of members that MWT submitted to the CTC. The CTC did not “confirm” the “lawfulness” of such change in membership as the CTC has no power to do so.

(4)  Moreover, the CTC only released the information as to the membership of MWT to the applicant. The information was not released publicly. The CTC was not a party to the litigations that the applicant is involved in. There is no locus for CTC to make binding representations affecting the applicant’s litigations.

36.The CTC was under no express obligation or duty to reply to the applicant’s requests for information. All that the CTC did was to accede to the request for information made by a member of the public, namely, the applicant. The CTC merely acted in voluntary conformance with the Code on Access to Information (“Access Code”):

(1)  The Access Code provides for a formal framework for access to information held by government departments and applies to “all governmental departments” listed therein, including the Home Affairs Bureau: paragraph 1.1 of and Annex A to the Access Code.

(2)  The CTC is not a government department and is therefore technically not obliged to comply with the Access Code. Moreover, there is no express provision in the CTO which imposes a duty on the CTC to assist or respond to enquiries made by third parties.

(3)  Nevertheless, the CTC refers to the standard governmental policies and voluntarily took it upon itself to abide by the Access Code for the public interest of promoting transparency of public bodies and is a manifestation of good administration and policy.

37.I agree that the applicant has misconstrued the nature of CTC’s letters that set out the number of members there were in MWT. The applicant made the information request pursuant to the Access Code. In response, the CTC provided the information stated in the request, and also made express reference to the Access Code. The disclosure was simply the CTC’s own records. It was merely an administrative act done in the public interest of promoting transparency of public bodies.

G.  ISSUE 4: APPROPRIATENESS OF THE RELIEF SOUGHT

38.In this regard, the Court of Appeal at paragraph 34 of the CA Judgment expressed disagreement with the view 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.

39.Having come to the view that the CTO does not impose a statutory duty upon CTC to ensure that the internal management of a Chinese temple must comply its articles (namely, the Abridged Regulations in this case), the question as to how such duty should be enforced does not arise.

H.  CONCLUSION

40.There is no nexus between any supposed breach of the Abridged Regulations and mismanagement of revenue that result in private gains made by individuals. The obligation of CTC to act does not arise at all. Unfortunately, the applicant is barking up the wrong tree by taking out judicial review application against the CTC because of her dissatisfaction over the general management of MWT.

41.For all the reasons stated above, the application for judicial review by the applicant is dismissed. As the applicant’s case does not fall within the public interest litigation exception (see: for example, Leung Kwok Hung v Secretary for Justice [2020] HKCA 837 at §§9-12, 19-20), I would order that the costs of the application (including all costs reserved, if any) be paid by the applicant to the CTC, such costs are to be taxed if not agreed.

42.The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same.

43.This Judgment is delivered in English. If the applicant needs interpretation assistance she can contact the clerk to Wilson Chan J to arrange for oral interpretation by appointment at the High Court Building.

The applicant appeared in person

Mr Jimmy Ma and Mr Keith Tam, instructed by Messrs Grandall Zimmern Law Firm, for the respondent

The interested party was not represented and did not appear