龐孟婷 v. 華人廟宇委員會

CACV 283/2022, [2025] HKCA 64

On Appeal From [2022] HKCFI 1952

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 283 OF 2022

(ON APPEAL FROM HCAL NO 506 OF 2018)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.There are before the Court (i) the Applicant’s appeal against the order of Wilson Chan J (“the Judge”) dated 28 June 2022 dismissing her application for judicial review (“the Order”), and (ii) the Applicant’s application by summons dated 12 September 2023 for leave to adduce her 7^th Affirmation affirmed on 11 September 2023 (“the 7^th Affirmation”) as new evidence in support of the appeal.

2.At the hearing of the appeal, we dismissed the application for leave to adduce new evidence with reasons to be given later, and reserved our judgment on the substantive appeal. These are our reasons for dismissing the application and our judgment on the appeal.

BACKGROUND

(i)  The parties

3.“曼華堂” (“MWT”) is a Chinese customary unincorporated association recognized as a t’ong (堂) under Section 15 of the New Territories Ordinance, Cap 97. Its object, internal structure, management and administration are set out in or subject to the “曼華堂簡章” of 1985 (“the Abridged Regulations”).

4.MWT is the registered owner of a piece of land at Fu Yung Shan, Tsuen Wan, New Territories, on which stands a Buddhist temple called “竹林禪院” (“the Temple”). The Temple, founded in 1928 by the Venerable Yung Chau, is registered as a “Chinese temple” under Section 5 of the Chinese Temples Ordinance, Cap 153 (“the Ordinance”)[1]. The land on which the Temple was built was purchased with financial contributions from 6 disciples of Yung Chau. Those 6 disciples together with 2 further disciples of Yung Chau became the 8 founding members of MWT.

5.The Applicant is a devout Buddhist who actively partakes in the activities and events of the Temple. She is the grand-daughter of Pong Yat Tung (Yung Chau’s former name before he became a monk). The Applicant’s mother assisted with the clerical duties of, and looked after the elderly disciples residing in, the Temple.

6.The Respondent (“CTC”) is a statutory body established under Section 7. By Section 7(1), the revenues, funds, investments and properties of all Chinese temples shall, subject to the provisions of Section 8 (concerning the application of revenues of Chinese temples), be under the absolute control of CTC. We shall further discuss the statutory powers, functions and responsibilities of CTC later in this judgment when we consider the Applicant’s grounds of appeal.

(ii)  Disputes concerning the membership of MWT

7.It is the Applicant’s case that the affairs of MWT have been run in contravention of the Abridged Regulations. One of her main complaints is that there are people who should not be members according to the Abridged Regulations being nominated and accepted as members of MWT, and they have been participating in the management of MWT, but CTC has failed in its statutory duties to take action to stop or remedy such irregularities.

8.In order to properly understand the Applicant’s complaint concerning the membership of MWT, we shall first set out a brief history of how MWT used to report to CTC about changes of its membership and how CTC received and handled the information provided by MWT from time to time.

9.The Temple was first registered under the Ordinance on 15 June 1948.

10.Under Section 5(2), registration shall be effected at the office of the Secretary for Home and Youth Affairs (formerly Secretary for Home Affairs) (“the Secretary”), and the following particulars are required to be supplied by a Chinese temple in order to effect registration –

(1)  the name of the temple or intended temple;

(2)  the address of the temple or intended temple, including the street or road and lot number;

(3)  the gods worshipped or intended to be worshipped;

(4)  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;

(5)  the name and address of the sz chuk (司祝, temple keeper), if any;

(6)  particulars of the funds, investments and properties held at the time of registration and where, how and by whom those funds, investments or properties are held; and

(7)  the application or intended application of the revenue of the temple, including the revenue from funds, investments or property held or to be held.

11.In addition, CTC would from time to time ask registered Chinese temples to provide updates of the particulars required to be supplied under Section 5(2). There is in the papers before us evidence that such updated particulars were provided by MWT on 17 November 2003, 1 August 2011 and 26 January 2018.

12.Pausing here, it may be noted that the Ordinance does not require registered Chinese temples to provide information concerning their membership or changes of membership (if any) to the Secretary or CTC. Nevertheless, MWT did, over the years, report changes of its managers and/or members to CTC and/or the District Office, Tsuen Wan (“DO/TW”) for their records.

13.At a meeting of MWT held on 1 March 2003, it was resolved that (i) Au-Yeung Shun Mei would be appointed as a manager of MWT in place of Sik Wan Kwong due to his old age and ailing health, and (ii) 11 disciples of the founders of MWT or their successors were confirmed to be current members of MWT. The appointment of Au-Yeung Shun Mei in place of Sik Wang Kwong as manager of MWT and the confirmation of the 11 members of MWT were reported to CTC and DO/TW on 15 March 2003. A copy of the minutes of the meeting of MWT held on 1 March 2003 was also provided to each of CTC and DO/TW. The change of manager of MWT was approved by DO/TW on 24 June 2003.

14.On 20 April 2007, MWT informed DO/TW of another change of manager of MWT (namely, the appointment of Poon Kit Fong in place of Poon Kam Lan). The change was approved by DO/TW on 5 July 2007.

15.At a meeting of MWT held on 22 September 2009, it was resolved that 3 members (namely, Poon Kam Lan, Sik Wang Kwong and Sik Kwong Wai (Au Yeung Kwong Wai)) would retire as members of MWT due to their old age. By a letter dated 14 October 2009, MWT informed CTC of the retirement of the 3 members, with the result that there were only 7 remaining members of MWT. By another letter also dated 14 October 2009, MWT informed DO/TW of the aforesaid changes in the membership of MWT. A copy of the minutes of the meeting of MWT held on 22 September 2009 was provided to each of CTC and DO/TW.

16.On 27 January 2010, CTC, in response to MWT’s letter of 14 October 2009, asked MWT to provide evidence of consent by the 3 retiring members of their retirement. CTC also pointed out that according to MWT’s previous letter dated 15 March 2003, it had 11 members, while in its latest letter of 14 October 2009 it was stated that MWT had only 7 members after the retirement of 3 members. CTC asked MWT to explain the whereabouts of the outstanding member (namely, Lui Yee Kai).

17.By a letter of 18 February 2010 (mistakenly dated 18 February 2008), MWT explained to CTC that membership of MWT was based on a system of succession (繼承制), whereby any change in the membership of MWT required only a resolution passed at a general meeting of MWT without any further procedure. It was further explained that: (i) Poon Kam Lan and Sik Wang Kwong, due to their old age, had resigned as managers and retired as members for a long time, and (ii) Au Yeung Kwong Wai was still of sound mind, and a letter of retirement by Au Yeung Kwong Wai dated 18 February 2010 was enclosed for CTC’s reference. As for Lui Yee Kai, apparently she had already passed away on 25 January 2005. On or about 22 February 2010, MWT sent a copy of Lui Yee Kai’s death certificate to CTC.

18.At a meeting of MWT held on 2 May 2010, it was resolved that (i) Sik Wai Ching, who had left the Temple for over 10 years, be removed as member, and (ii) Chiu Ping’s successor, Wong Mei Yee, be appointed as a member of MWT in place of Chiu Ping who was retiring due to her old age. By a letter dated 6 May 2010, MWT informed CTC of the said changes of membership, with the result that there were only 6 current members of MWT. A copy of the minutes of the meeting of MWT held on 2 May 2010 was also sent to CTC.

19.On 29 July 2010, CTC, in response to MWT’s letter of 6 May 2010, asked MWT to produce (i) evidence to show that MWT had power to remove Sik Wai Ching as member at the meeting held on 2 May 2010, and (ii) relevant documents concerning the retirement of Chiu Ping and the succession of membership by Wong Mei Yee. It would appear that MWT did not respond to this letter of CTC. For this reason, in CTC’s letter to Shanghai Commercial Bank Ltd (“SCB”), MWT’s banker, dated 5 October 2010 in reply to the latter’s request for a list of the “office bearers”[2] of MWT, CTC gave a reply based expressly on the information contained in MWT’s previous letters of 14 October 2009 and 18 February 2010[3] (with a list of 7 members), and made no reference to the latest information contained in MWT’s letter of 6 May 2010.

20.Subsequently, on 2 May 2011, MWT wrote to DO/TW to seek an official confirmation of the list of members of MWT (based on the information previously supplied by MWT on 16 April 2011) in order to answer CTC’s aforesaid query. On 9 May 2011, DO/TW wrote to MWT giving a list of members of MWT (consisting of 6 members, namely, Au-Yeung Shun Mei, Poon Kit Fong, Sik Tung Ding (Wong Shut Mui), Lui Ngoi Ha, Wong Mei Chun, and Wong Mei Yee). On 16 May 2011, MWT sent to CTC a copy of DO/TW’s letter of 9 May 2011 as proof that it had only 6 current members. Apparently, CTC considered MWT to have satisfactorily answered its previous query concerning the updated membership of MWT. In CTC’s next letter to SCB dated 24 May 2011, CTC stated that, according to the latest information provided by MWT on 9 May 2011, MWT had 6 members, and gave a list of the 6 names as appeared in DO/TW’s letter of 9 May 2011.

21.On 19 July 2014, MWT provided an “updated” list of its members to CTC. That list was the same as the “confirmed” list given by DO/TW on 9 May 2011 and provided to CTC on 16 May 2011 (with 6 named members).

22.On 11 October 2017, MWT gave notice of a general meeting to be held on 30 October 2017 for consideration of resolutions to (i) add 3 new members (namely, Yeung Chun Kam, Lee Cheuk Fun and Tang King Shing), and (ii) remove 4 existing members, namely, Wong Mei Chun, Lui Ngoi Ha, Sik Tung Ding (Wong Shut Mui), and Sik Ben Jian (Wong Mei Yee, also known as Sik Tung Wai). Sik Tung Ding and Sik Ben Jian sent a letter to other members of MWT dated 23 October 2017 objecting to the proposed resolutions on the ground that the proposed appointment and removal of members would be contrary to the Abridged Regulations, in particular Regulations 4 and 5 thereof. Further letters dated 26 October 2017, 1 November 2017, and 6 November 2017 objecting to the proposed resolutions were sent, or copied, to various Government officials, including the Secretary for Home Affairs/Chairman of CTC. Notwithstanding those objections, the proposed resolution for the addition of 3 new members was passed at a meeting of MWT held on 30 October 2017[4].

23.By a letter dated 7 November 2017 and signed by Sik Tung Ding, Sik Ben Jian and Sik Wai Ching (said to be a successor-member of MWT), CTC was asked to investigate and take enforcement action in respect of the unlawful addition of 3 members of MWT pursuant to Section 6(d). By a further letter to CTC dated 17 November 2017, Sik Tung Ding asked CTC to provide, inter alia, (i) the latest record concerning change of membership of MWT, and (ii) the latest membership list of MWT.

24.CTC replied to Sik Tung Ding on 5 December 2017, stating that the information sought by him related to the personal information of third parties, and it would give a substantive reply after having ascertained from those parties whether they would consent to the disclosure of the relevant documents previously provided by them to CTC. Subsequently, on 13 December 2017, CTC provided to Sik Tung Ding a redacted membership list of MWT consisting of 6 members which CTC had previously received from MWT on 19 July 2014 (see §21 above).[5]

25.By a letter dated 20 December 2017, MWT wrote to CTC stating that after a “committee meeting” (委員會大會) held on 20 December 2017, there were changes to the list of members of MWT, with the result that there were only 4 current members of MWT (namely, Au-Yeung Shun Mei, Poon Kit Fong, Lui Ngoi Ha and Wong Mei Chun). By a further email to (inter alia) CTC dated 31 December 2017, MWT informed CTC that at the committee meeting held on 20 December 2017, votes of no confidence of Sik Tung Ding and Sik Ben Jian were passed, and they were removed from their post as “office bearers” (理事職務) of MWT. In that email, MWT further stated that copies of relevant documents and the minutes of the meeting would be provided within 14 days.

26.On 24 January 2018, CTC sent a letter to Sik Tung Ding and Sik Wai Ching in further reply to their letter of 7 November 2017 (referred to in §23 above). In that letter, CTC stated that, after taking legal advice, it was considered that, in relation to the matter of appointment of 3 new members of MWT on 30 October 2017, there was at that stage no sufficient evidence that any related party had knowingly supplied false or inaccurate information in breach of Section 6(d).

27.Sik Tung Ding and Sik Wai Ching were not satisfied with the reply by CTC, and sent a further letter to CTC dated 31 January 2018 to pursue their complaint.

28.On 26 February 2018, CTC sent a letter to MWT chasing for, inter alia, the relevant documents and minutes of meeting which MWT had promised to provide in the email of 31 December 2017 (see §25 above). On 2 March 2018, MWT provided to CTC some documents, including a resolution of MWT signed by 4 members (namely, Au-Yeung Shun Mei, Poon Kit Fong, Lui Ngoi Ha and Wong Mei Chun) for the removal of Sik Tung Ding and Sik Ben Jian.

29.On 28 March 2018, CTC wrote to MWT acknowledging receipt of the supporting documents and stating that it had updated the membership list of MWT.

30.On 25 April 2018, SCB wrote to CTC asking for an updated list of MWT’s current office-bearers for their reference. CTC replied to SCB on 24 May 2018, giving the names of 4 persons (namely, Au-Yeung Shun Mei, Poon Kit Fong, Lui Ngoi Ha and Wong Mei Chun) as the members of MWT “[a]ccording to the information submitted by [MWT] to [CTC] on or about 20 December 2017”.

(iii)  Applicant’s inquiry

31.By a letter dated 5 February 2018, the Applicant informed CTC that (i) she was the defendant, and MWT was the plaintiff, in a High Court Action (HCA 2256/2017), (ii) an issue had arisen in the course of the action concerning the number and identity of the members of MWT, and (iii) she understood that MWT had 6 members (namely, Poon Kit Fong, Au-Yeung Shun Mei, Sik Tung Ding (Wong Shut Mui), Sik Ben Jian (Wong Mei Yee), Lui Ngoi Ha, and Wong Mei Chun), and asked CTC to provide a list of the registered members of MWT to ensure the “fairness and propriety of the legal process”. It would appear that the Applicant’s position was that Sik Tung Ding (Wong Shut Mui) and Sik Ben Jian (Wong Mei Yee) were, or should still be, members of MWT notwithstanding their purported removal on 20 December 2017.

32.By a further letter dated 10 February 2014, the Applicant asked CTC to disclose the latest total number of registered members of MWT.

33.CTC gave holding replies to the Applicant on 12 and 14 February 2018, and a substantive reply on 26 February 2018 (“the Letter”). In the Letter, CTC stated, inter alia, that according to its records, (i) MWT wrote to CTC on 19 July 2014 stating that it had 6 members, and (ii) MWT further wrote to CTC in December 2017 stating that there were changes of membership of MWT and there were only 4 members of MWT. In view of the fact that the Letter is identified in the Re-Amended Form 86 as the “decision” being challenged by the Applicant in the present application for judicial review, we set out the relevant parts of that letter:

“ 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。繼2018年2月14日的簡覆，本委員會現綜合回覆如下：

根據本委員會紀錄，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)。”

34.Annexure 1 to the Letter was a copy of MWT’s letter dated 19 July 2014 to CTC (referred to in §21 above), while Annexure 2 consisted of copies of MWT’s letter dated 20 December 2017 and email dated 31 December 2017 to CTC (referred to in §25 above).

APPLICATION FOR JUDICIAL REVIEW

35.On 28 March 2018, the Applicant filed a Form 86 to seek leave to apply for judicial review. The Applicant contended that CTC was under a statutory duty to investigate and intervene in the wrongful acceptance or registration of members by MWT, but failed to do so. She also said that there was substantial public interest involved because MWT held substantial assets: it owned land of 400,000 square feet and substantial funds as a public charity. In the Amended Form 86, the Applicant identified the “decision” of CTC which she wished to challenge as follows:

“答辯人於2018年2月26日向申請人作出有關曼華堂成員更動的確認,及該確認呈示答辯人就香港法例第153章 《華人廟宇條例》第5，7及8條所賦予的公共職能的不作為。”

English translation

“The confirmation by the Respondent to the Applicant on 26 February 2018 about the changes of membership of Man Wah Tong, and the Respondent’s failure to act in discharge of its public function conferred by Sections 5, 7 and 8 of the Chinese Temples Ordinance, Cap 153 as shown by such confirmation.”

36.She also set out the following as the reliefs that she intended to seek by way of judicial review:

“1. 宣告答辯人根據其在2017年12月31日收到曼華堂提供的資料所作對曼華堂成員更動的確認為違法並無效；

2. 宣告答辯人核實曼華堂成員及處理曼華堂管理竹林禪院時，必須依據曼華堂簡章；及

3. 命令答辯人履行在該條例下之下的公共職責，採取一切所需行動，確保曼華堂的成員更動及竹林禪院的管理符合曼華堂簡章。”

English translation[6]:

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

2. A declaration that the Respondent is required to comply with the Abridged Regulations of Man Wah Tong in confirming the membership of Man Wah Tong and dealing with the Tong’s management of Chuk Lam Sim Yuen.

3. A writ of mandamus ordering the Respondent to perform its public duty imposed upon it by the Ordinance and take all necessary action to ensure that the change of membership of Man Wah Tong’s and the management of Chuk Lam Sim Yuen comply with the Abridged Regulations of Man Wah Tong.”

37.Three grounds of judicial review were advanced in the Amended Form 86, all directed against CTC’s failure to take action in respect of the wrongful acceptance or registration of members by MWT:

(1)  wrongful acceptance and confirmation of the changes of membership of MWT, contrary to Sections 5, 7 and 8;

(2)  failure to investigate and take appropriate supervisory actions to see that the operations of MWT were in accordance with the Abridged Regulations, contrary to Section 7 and 8; and

(3)  Wednesbury unreasonableness.

LEAVE TO APPLY FOR JUDICIAL REVIEW GRANTED BY COURT OF APPEAL

38.The Applicant’s application for leave to apply for judicial review was originally refused by Lok J on 5 June 2019 on the ground that: (i) there was no “decision” amenable to judicial review; and (ii) the court should not entertain the application for judicial review because there were other channels (namely, civil litigation) providing for redress which had not been exhausted ([2019] HKCFI 1457).

39.On the Applicant’s appeal against the order of Lok J, the Court of Appeal granted leave to apply for judicial review on 11 May 2021. In the judgment of Lam VP (as he then was) giving the judgment of the Court (“the CA Leave Judgment”), he expressed the following views:

As regards the first reason given by Lok J to refuse to grant leave

(1)  Although the Letter itself could not be read as a decision as such, in the context of the role of CTC under the Ordinance and the overall context of the Applicant’s complaint of failure on the part of CTC to act and also CTC’s reply to inquiries including its reply to SCB at which accounts of MWT were maintained, it was 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 was concerned, and that the stance taken by CTC might affect the proceedings in HCA 2256/2017 (§10).

(2)  In some circumstances, a failure to act could be amenable to judicial review. The crucial question was whether the circumstances in the present case called for some actions on the part of CTC (§12).

(3)  Under the Ordinance, CTC was tasked with overseeing the proper management, control and finance of Chinese temples. One of the means to achieve that was to make regulations on those matters under Section 3(1). But that was not the only means (§14).

(4)  It was reasonably arguable that either CTC or the Secretary acted as the registrar for keeping the register provided under Section 5. Though registration was to be effected at the office of the Secretary under Section 5(2), the evidence showed that the actual handling of registration, requisitions on registration and dealing with inquiries are done by CTC. Reading Sections 5, 6, 10, 11 and 12 together, it was reasonably arguable that CTC should intervene in cases where there was a serious issue over the proper management of a Chinese temple (§15).

(5)  Whilst the powers set out in the Ordinance were quite extreme, it was reasonably debatable that CTC had 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 (§16).

(6)  Though Lok J was correct in holding that CTC did not have the adjudicative power of the court to make a judicial determination on the application of the Abridged Regulations to MWT, it did not mean that CTC could abdicate its administrative role prescribed under the Ordinance. Disagreeing with Lok J, the Court held that CTC should not only play a passive role. The public interest which the Ordinance entrusted CTC to safeguard should not be ignored (§17).

(7)  On the materials before the court, there were serious issues to be looked into, and the Applicant’s challenge against CTC’s failure to act was reasonably arguable (§18).

(8)  In short, Lok J erred in his first reason for refusing to grant leave (§21).

As regards the second reason given by Lok J to refuse to grant leave

(9)  Lok J seemed to have taken the view that the only thing that could 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. Such focus was misplaced (§§22-23).

(10)  It was reasonably arguable that CTC had a statutory role to play in overseeing the management of a Chinese temple and such a role was an administrative one which should function in tandem with judicial redress over the dispute on membership. In the judicial review, the Applicant was seeking to compel CTC to play its administrative role as opposed to the seeking of a judicial determination of the membership by CTC (§23).

(11)  It was reasonably arguable that pending the judicial determination, CTC should act administratively to safeguard the public interest as required under the Ordinance (§25).

(12)  For the above reasons, leave was granted to the Applicant to apply for judicial review.

FURTHER AMENDMENTS TO THE FORM 86

40.At the hearing before the Court of Appeal, the Applicant sought to rely on various other complaints against CTC in addition to its alleged failure to investigate and take action in respect of the changes of membership of MWT. However, the Court declined to consider those complaints because they were not pleaded or supported by evidence. At §20 of the CA Leave Judgment, the Court made the following observation:

“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.”

41.Notwithstanding the Court’s reminder to the Applicant of the need to properly re-amend the Form 86 if she wished to rely on additional grounds of complaint, the eventual amendment sought and obtained by the Applicant was very limited, consisting of only the following general allegation at §42 of the Re-Amended Form 86:

“委員會基於2017年12月31日接到曼華堂成員資料更新而沒有任何質疑，並於2018年2月26日回覆申請人稱曼華堂成員是四名，即委員會已接受曼華堂的成員資料更新。但委員會沒有考慮的事還包括一直由僧侶、信眾向其作出的投訴，包括委員會如不理會曼華堂簡章接受成員改動的申報，公眾利益將受損害、曼華堂 (竹林禪院) 非法控制長者存放在竹林禪院的大量金錢 (姑太錢) 、四名成員私自成立「竹林禪院有限公司」混淆公眾、現任 (或曾任) 華人廟宇委員會其中一名委員，被發現同時任職不同廟宇的董事而存在利益衝突；委員會明知因曼華堂出現嚴重管理及成員違反章程隨意更迭的投訴，不作出任何考慮並任由竹林禪院在毫無監管下運作，嚴重損害公眾利益。” [words underlined added by way of re-amendment of Form 86]

42.Significantly, the Applicant did not expand on the “decision” under challenge, which remained in the same form as it appeared in the Amended Form 86 (see §35 above).

THE JUDGMENT

43.The substantive application for judicial review came before the Judge on 7 June 2022. On 28 June 2022, the Judge handed down his judgment (“the Judgment”) dismissing the application for judicial review.

44.At §12 of the Judgment, the Judge identified four issues to be determined, namely:

(1)  What is the statutory framework of the Ordinance?

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

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

(4)  Are the reliefs claimed by the Applicant properly framed and appropriate?

45.The Judge’s answers to these four issues are as follows:

(1)  In respect of Issue (1) – the “control” conferred on CTC by the Ordinance is control over “the revenues, funds, investments and properties” of Chinese temples (§20).

(2)  In respect of Issue (2) – Sections 7 and 8 of the Ordinance only relate to the management and application of the revenues and funds of Chinese temples. The Ordinance does not impose a statutory duty upon CTC to ensure that the internal management of MWT must comply with the Abridged Regulations. The procedure in which the CTC processes changes in the membership of MWT is simply to abide by the New Territories Ordinance whereby any changes of manager/manageress of a t’ong are to be dealt with by the Home Affairs Bureau. The purpose of the Ordinance is not to fill in any supposed lacuna regarding the management of t’ongs under the New Territories Ordinance (§§26 and 29).

(3)  In respect of Issue (3) – even if there was a statutory duty upon CTC to act, CTC was not in breach of its duty in the present case. Upon examination of the Letter, CTC merely stated what it had in its records. CTC did not warrant anything about the membership of MWT when it was disclosed to the Applicant or to the inquiring banks. CTC was under no express obligation or duty to reply to the Applicant’s requests for information. CTC acceded to the request for information made by a member of the public, namely, the Applicant, and provided the information in the public interest of promoting transparency of public bodies. The Applicant has misconstrued the nature of CTC’s letters that set out the number of members in MWT (§§30, 34-37).

(4)  In respect of Issue (4) – having come to the view that the Ordinance does not impose a statutory duty upon CTC to ensure that the internal management of a Chinese temple must comply with its articles (namely, the Abridged Regulations in this case), the question as to how such duty should be enforced does not arise (§39).

46.The Judge concluded that (i) there was no nexus between any supposed breach of the Abridged Regulations and mismanagement of revenue that resulted in private gains made by individuals, (ii) the obligation of CTC to act did not arise at all, and (iii) the Applicant barked up the wrong tree by taking out judicial review application against CTC because of her dissatisfaction over the general management of MWT (§40).

THE APPEAL

47.Dissatisfied with the Judgment, the Applicant lodged an appeal against the Order by a Notice of Appeal dated 22 July 2022. On 7 September 2023, the Applicant filed and served a Supplemental (Amended) Notice of Appeal (“the Amended Notice of Appeal”), which replaced the original Notice of Appeal.

48.In the Amended Notice of Appeal, the Applicant advances 4 grounds of appeal against the Order:

(1)  Ground 1 concerns the scope of CTC’s statutory powers or duties under the Ordinance.

(2)  Ground 2 concerns the question of whether CTC is under a duty to ensure that MWT complies with the Abridged Regulations.

(3)  Ground 3 concerns the question of whether CTC is under a duty to investigate and intervene in respect of complaints of mismanagement or misconduct in respect of MWT’s affairs other than non-compliance with the Abridged Regulations.

(4)  Ground 4 contends that the Judge erred in ignoring both the potential and adverse effect and consequence of CTC’s failure to act and provision of wrong information.

NEW EVIDENCE APPLICATION

49.On 12 September 2023, the Applicant issued a summons seeking leave to adduce the 7^th Affirmation as new evidence in support of the present appeal. As can be seen from §3 of the 7^th Affirmation, the “evidence” that she wishes to rely on is the judgment of B Chu J in HCMP 496/2017 and HCA 595/2019 (collectively “the High Court Actions”) dated 30 May 2023 (“the Chu Judgment”). According to the Applicant, the High Court Actions, which were tried together before Chu J, are concerned with the same complaints about the mismanagement and maladministration of the affairs of MWT that she also complains of in her application for judicial review. The Applicant wishes to rely on the findings in the Chu Judgment to prove the validity of her complaints concerning the mismanagement of the affairs of MWT[7].

50.The findings in the Chu Judgment on which the Applicant places particular reliance are Chu J’s findings concerning (i) mismanagement of the general affairs of MWT (§196), (ii) mismanagement of the financial affairs of MWT (§§237 & 250), and (iii) qualification of members and/or manageress of MWT (§§268, 277, 280 & 292)[8]. The Applicant also refers to the following summary of Chu J’s findings at §299 of the Chu Judgment:

“To summarise, I am satisfied that (1) there has been mismanagement of its affairs and/or that there has been a failure on the Tong’s part to put in place a proper or effective system and clear guidelines in the management and administration of, in particular, its external affairs in carrying out of its charitable objects; (2) the Tong has demonstrated an inability to manage its own financial affairs; (3) Au Yeung [Shun Mei] and Poon [Kit Fong] were not qualified to take up their offices as manageresses and should be removed; (4) one of the current members, namely Wong [Mee Chun], was/is not qualified to be a member and should be removed; (5) there is no one from the current members who is qualified to take up any of the offices in Articles 5 and 6; and lastly (6) there should be an overall review of Abridged Regulations. For all these reasons and having considered all the circumstances of this case, I have come to the view that a [better administration order] should be granted, subject to the further consideration of its ambit and terms.”

51.In our view, the Applicant’s attempt to rely on the findings in the Chu Judgment as evidence in support of the present appeal is misconceived. As correctly submitted by Mr Ma (for the CTC), this attempt is contrary to the well-established principle in Hollington v F Hewthorn & Co Ltd [1943] KB 587, which is summarised at §§43-77 of Phipson on Evidence (20^th Edn): “At common law, a judgment in personam (whether delivered in civil or criminal proceedings) is no evidence of the truth of the decision or of its grounds (whether findings of fact or the legal consequence of those findings), between strangers, or a party and a stranger, except upon questions of public and general interest; in bankruptcy, administration and patent cases, to a limited extent; or when so operating by contract, admission or acquiescence”.

52.Although MWT and the Secretary for Justice are parties to the High Court Actions, neither the Applicant nor CTC is a party to those actions. For the purpose of the application of the Hollington principle to the present case, they are “strangers” insofar as the Chu Judgment is concerned. None of the exceptions to the Hollington principle mentioned above has application in the present case.

53.Mr Wang faintly argues that the Chu Judgment is admissible as evidence because (i) it makes various declarations in respect of the affairs of MWT, a charity of public interest, and is therefore a judgment in rem, and/or (ii) it is a judgment “upon public or general rights”, which Mr Wang says are two separate and distinct grounds and exceptions to the Hollington principle. He relies on Pattni v Ali [2007] 2 AC 85, §21, where, in the context of recognition and enforcement of a foreign judgment, Lord Mance said that:

“… a judgment in rem in the sense of rule 40[9] is thus a judgment by a court where the relevant property is situate, adjudicating on its title or disposition as against the whole world (and not merely as between parties or their privies in the litigation before it)”.

54.Lord Mance went on to refer to Jowitt’s Dictionary of English Law, 2^nd Edn (1977), pp 1025–1026, which drew the following distinctions:

“A judgment in rem is an adjudication pronounced upon the status of some particular subject matter by a tribunal having competent authority for that purpose. Such an adjudication being a solemn declaration from the proper and accredited quarter that the status of the thing adjudicated upon is as declared, it precludes all persons from saying that the status of the thing or person adjudicated upon was not such as declared by the adjudication. Thus the court having in certain cases a right to condemn goods, its judgment is conclusive against all the world that the goods so condemned were liable to seizure. So a declaration of legitimacy is in effect a judgment in rem. A judgment of divorce pronounced by a foreign court is in certain cases recognised by English courts, and is then a judgment in rem . . . Judgments in personam are those which bind only those who are parties or privies to them; as in an ordinary action of contract or tort, where a judgment given against A cannot be binding on B unless he or someone under whom he claims was party to it.”

55.Mr Wang also relies on Phipson on Evidence, 20^th Edn, at §43-83, where it is stated:

“Judgments and verdicts upon public or general rights are not only conclusive between parties and privies, but prima facie evidence of the matter decided between strangers or a party and a stranger. They are not, however, conclusive in the latter cases, for the general reasons already stated …

Such evidence is sometimes regarded as a species of judgment in rem, but is more usually considered as in the nature of, though stronger than, reputation…”.

56.The Chu Judgment is plainly not a judgment on the “title or disposition” of any “property”. The fact that in the Chu Judgment, Chu J finds that Au Yeung Shun Mei and Poon Kit Fong are not qualified to be manageress of MWT (because they are not nuns) and Wong Mei Chun is not qualified to be a member of MWT (because she is not a disciple of a former member) under the Abridged Regulations does not make it a judgment on the “status” of any particular subject matter so as to qualify it as a judgment in rem. It is simply a judgment that those persons do not meet the prescribed qualifications to hold their positions in MWT. Neither can the Chu Judgment be regarded as a judgment upon public or general rights merely because MWT is a public charity and various declarations in respect of the affairs of MWT have been made.

57.Mr Wang argues, as a fall back, that “the evidence discussed in the 2023 Judgment would be admissible”[10]. The Chu Judgment is a 165-page judgment containing 357 paragraphs. Mr Wang has not identified which particular piece or pieces of evidence discussed in the Chu Judgment that the Applicant wishes to adduce as new evidence in support of the appeal, still less demonstrated that the Ladd v Marshall conditions are satisfied in respect of such evidence. This fall back argument of Mr Wang is a non-starter.

58.For the above reasons, the Applicant’s summons dated 12 September 2023 was dismissed at the hearing of the appeal on 12 November 2024.

59.Consequent upon the Court’s dismissal of the application for leave to adduce new evidence and having regard to the fact that the subject matter of the application for judicial review (ie the “decision” under challenge) as stated in the Re-Amended Form 86 was limited to the Letter of 26 February 2018, Mr Wang accepted that he could not pursue Grounds 3 and 4 in the Amended Notice of Appeal insofar as they related to complaints of general mismanagement of the affairs of MWT (ie complaints other than those relating to the membership of MWT), and would focus on Grounds 1 and 2 in the Amended Notice of Appeal.

60.We consider that this is the right course to adopt because:

(1)  Although in the Re-Amended Form 86, the “decision” that the Applicant wished to challenge also referred to CTC’s failure to act (不作為), this reference was tied to the Letter (答辯人於2018年2月26日向申請人作出有關曼華堂成員更動的確認，及該確認呈示答辯人…的不作為). It is apparent from a reading of the Letter that it related only to the membership of MWT. The Letter did not show or indicate any other failure to act on the part of CTC.

(2)  As earlier mentioned, in the CA Leave Judgment, the Court of Appeal expressly reminded the Applicant of the need to properly re-amend the Form 86 if she wished to rely on additional grounds of complaint. Notwithstanding this reminder, the Applicant did not expand on or enlarge the subject matter of the application for judicial review, and confined her challenge to the “decision” of CTC based on the Letter.

(3)  Many of the arguments raised by the Applicant in support of Grounds 3 and 4 are based on findings made by Chu J in the Chu Judgment (see §§3.2(b) and 4(c)(i) of the Amended Notice of Appeal, which refer to §§160, 164-166, 182-183, 194-196, 237, 250, 268, 274-275, 277, 280 and 299 of the Chu Judgment). We have already explained why those findings are not admissible as evidence in the present appeal.

61.Accordingly, in this judgment, we shall concentrate on Grounds 1 and 2 relating to the Applicant’s complaints concerning CTC’s alleged recognition or acceptance of the membership list of MWT, as well as CTC’s failure to investigate complaints concerning the membership of MWT.

GROUND 1: SCOPE OF CTC’S FUNCTIONS AND RESPONSIBILITES

62.Under Ground 1, the Applicant argues that the Judge erred in holding that the statutory framework of the Ordinance is concerned only with control over the “revenues, funds, investments and properties” of Chinese temples. She contends that the Judge ought to have held that CTC is a statutory body tasked with overseeing the proper management and control, as well as the finance, of Chinese temples.

63.On behalf of the Applicant, Mr Wang argues that upon its proper construction, the Ordinance clearly regulates both the management in general as well as the administration of the funds of Chinese temples. He relies on various provisions of the Ordinance, including its long title, and Sections 3(1) and (2), 5(2), 6(b), 10, 11, 12 and 14, which confer on CTC broad powers to control the management and affairs of CTC. He refers to what was said in the Legislative Counsel at the first reading of the Chinese Temples Bill, 1928 (Hansard, 5 April 1928), which showed that the discussion was more than just finance. He also submits that insofar as may be necessary, it is trite that public authorities are permitted to undertake tasks that are “reasonably incidental” to the achievement of the purposes of a statute, provided that they do not contradict any express statutory powers. The powers of CTC in the present case could readily include (insofar as not expressly provided under the Ordinance) the power to investigate, conduct inquiries, seek judicial determination if necessary about the proper interpretation of the Abridged Regulations, and seek a better administration order.

64.Mr Wang further argues that, even assuming the administration of funds is of more importance under the Ordinance, it cannot be denied that at least management issues which may be related to financial administration would be within the ambit of CTC’s duties given their inherent connection and the express provisions of the Ordinance as discussed above.

65.On the other hand, Mr Ma argues that under the Ordinance, CTC is not concerned or tasked with control over the management of the internal affairs of Chinese temples. He argues that there is no express provision in the Ordinance which requires CTC, or imposes a duty on it, to exercise control over the management of the internal affairs of Chinese temples. The principle that authorities are permitted to undertake tasks that are reasonably incidental to the achievement of the purposes of a statute does not assist the Applicant because the fundamental premise of Section 40(1) of the Interpretation and General Clauses Ordinance, Cap 1, is that the statute must first have already conferred upon the decision maker the power to do a certain act before any incidental (or ancillary) powers can come into play. Mr Ma further submits that none of the provisions relied upon by the Applicant supports her proposition that CTC must, or should, concern itself with the internal affairs of Chinese temples. Finally, Mr Ma relies on the consultation document titled “Review on the Chinese Temples Ordinance Public Consultation Document” published by the Home Affairs Bureau Chinese Temples Committee dated March 2015 in which numerous amendments to the Ordinance were proposed. According to Mr Ma, “[t]hese are pertinent as they highlight the shortcomings in the [Ordinance], which in turn would show the powers that need to be granted to CTC as they were not present ab initio”.

66.In our view, the Judge has adopted too narrow a view about the functions and responsibilities of CTC under the Ordinance. It is clear from a fair reading of the Ordinance that CTC’s role is not just about control over the revenues, funds, investments and properties of Chinese temples, but extends to the proper management of Chinese temples. The following provisions in the Ordinance are pertinent to the present discussion:

(1)  The objects of the Ordinance, as stated in its long title, are to “suppress and prevent abuses in the management of Chinese temples and in the administration of the funds of Chinese temples”. Both the suppression and prevention of abuses in the management, and the administration of the funds, of Chinese temples are within the objects of the Ordinance.

(2)  Section 3(1)(a) and (c) provides that CTC may, subject to the approval of the Chief Executive in Council, make regulations to provide for, inter alia, the registration, management, control and inspection of Chinese temples, and the duties of sz chuk (司祝, temple keepers). Sub-section (2) goes on to provide that nothing in that section shall be construed as obliging CTC to make any regulation before exercising any other power conferred on the committee by the Ordinance. The above provisions clearly empower, CTC to oversee, inter alia, the management, control and inspection, as well as the day-to-day administration of Chinese temples, and not just their revenues, funds, investments and properties.

(3)  Section 5(1) provides that no Chinese temple shall be established or maintained unless it is registered in accordance with the provisions of the Ordinance. Section 5(2) further provides that, in order to effect registration under the Ordinance, a Chinese temple is required to provide particulars as regards, inter alia, 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), and the name and address of the sz chuk (司祝, temple keeper), if any. Although such information is to be provided to the Secretary, there is no reason to believe the information would not be readily available to CTC. The particulars required to be provided go beyond what would be necessary if the Ordinance is intended to regulate or control only the revenues, funds, investments and properties of Chinese temples.

(4)  Section 6(b) prohibits any person from taking part in the management or in the service of any Chinese temple established or maintained contrary to any of the provisions of the Ordinance or of any regulation made thereunder. This provision again indicates that the reaches of the Ordinance extend beyond the revenues, funds, investments and properties of Chinese temples.

(5)  Section 7(1) provides that the revenues, funds, investments and properties of all Chinese temples shall, subject to the provisions of Section 8, be under the absolute control of CTC.

(6)  Section 8(1) provides that revenues of all Chinese temples shall be applied in the first instance to the due observance of the customary ceremonies and the maintenance of the temple buildings and temple properties, and any surplus may be transferred to the General Chinese Charities Fund referred to in Section 9.

(7)  Section 10(1) and (2) provides that CTC may lawfully let by tender the office of sz chuk (司祝, temple keeper) of any temple, and determine the conditions of any tender, the manner in which tenders shall be called for and the powers and obligations of any sz chuk. Section 10(4) and (5) further provides that CTC may lawfully appoint any person to the office of sz chuk of any temple without going through any tender process under sub-sections (1) and (2), and terminate the tenure of the office of any sz chuk of any Chinese temple by giving 1 month’s notice in writing. These powers of CTC to appoint and remove, and prescribe the powers and obligations of, any sz chuk of any Chinese temple plainly vest CTC with overall control of the general management and administration of registered Chinese temples.

(8)  Section 11 provides that CTC may lawfully delegate to any person the administration of any temple and of the revenues of such temple, and revoke any such delegation. A clear distinction is drawn between the administration of any temple and the administration of the revenues of such temple.

(9)  Section 12(1) and (2) empowers CTC to order the closure of any temple where there is reason to believe that any registered Chinese temple is falling or has fallen into disuse, or that the funds and revenues of any registered Chinese temple are insufficient for its maintenance, and it is of the view that sufficient support for the temple is not likely to be forthcoming. The power to order the closure of a Chinese temple is not limited to insufficiency of the funds and revenues of the temple for its maintenance, but extends to the situation where, for any reason, a temple is falling or has fallen into disuse.

67.There is nothing in the background enactment materials which suggests that the scope or framework of control of Chinese temples under the Ordinance is intended to be restricted to their revenues, funds, investments and properties. It would appear, from the record of proceedings in the Legislative Council on 5 April 1928 in relation to the first reading of the Chinese Temples Bill, that there were 2 main objects of the proposed Ordinance: (i) the prevention of religion from being made a source of private gain, and (ii) charitable (namely, to bring the profits of temples, which no longer benefitted the public but had fallen or were falling under the control of private individuals who used them for their own benefit, under the control of the Ordinance to be used for the purposes of Chinese charities in the Colony generally). The achievement of these objects would, we consider, be enhanced by a generous or broad interpretation of the scope or framework of control of Chinese temples under the Ordinance. On the other hand, we are unable to see how the consultation document titled “Review on the Chinese Temples Ordinance Public Consultation Document” dated March 2015 relied upon by Mr Ma can in any way support his argument that CTC is not concerned or tasked with control over the management of the internal affairs of Chinese temples under the Ordinance.

68.The Judge appears to have taken the view that a restrictive interpretation of the scope or framework of control of Chinese temples under the Ordinance is supported by the judgment of the Court of Final Appeal in Secretary for Justice v To Kan Chi (2000) 3 HKCFRA 481. At §19 of the Judgment, the Judge referred to the following passage in the joint judgment of Bokhary and Chan PJJ in To Kan Chi (with whom the other members of the Court of Final Appeal agreed):

“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 by the Judge]

69.The Judge went on to state, at §20 of the Judgment, that “it is thus clear that the ‘control’ conferred on the CTC by the [Ordinance] is control over ‘the revenues, funds, investments and properties’ of the Chinese temples”, and said that this was made clear in the same judgment of Bokhary and Chan PJJ 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 by the Judge]

70.We are unable to agree with the Judge’s reading of the judgment of the Court of Final Appeal in To Kan Chi. It is important to appreciate that the dispute in that case concerned the ownership of a temple (Tsing Wan Kun) and its assets. There, a tso/clan claimed that they were members of a t’ong and the temple was a private temple owned by the t’ong. On the other hand, the Secretary for Justice claimed the temple and its assets for charity. The Court of Final Appeal held that Tsing Wan Kun was a private temple owned by the t’ong. Arising from that holding, a further issue which the Court of Final Appeal had to consider was whether the funds of the temple were covered by Sections 7 and 8 and thus subject to the control of CTC, and if so whether the Ordinance was “confiscatory” in nature and thus would be open to challenge under Article 105 of the Basic Law. The Court of Final Appeal held that the Ordinance had application to a private temple such as Tsing Wan Kun, but it was not confiscatory. It was in the context of the discussion of whether the Ordinance was confiscatory that Bokhary and Chan PJJ stated the above passages relied upon by the Judge. The Court of Final Appeal did not have to deal with the issue of the scope or framework of control of Chinese temples under the Ordinance, or the scope of CTC’s statutory functions or responsibilities. We do not read the To Kan Chi judgment as giving support of the view that the powers conferred on CTC by the Ordinance is restricted to control over the revenues, funds, investments and properties of Chinese temples only.

71.As earlier mentioned, in the CA Leave Judgment, Lam VP expressed the view that upon a proper reading of the Ordinance, it was reasonably arguable that CTC had a statutory role to play in overseeing the management of a Chinese temple, it should intervene in cases where there was a serious issue over the proper management of a Chinese temple, and it had 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 its explicit powers should be exercised. Not only do we consider these propositions to be reasonably arguable, we are satisfied that they are correct. This having been said, CTC is not under any absolute duty to take action to procure that the management of a Chinese temple complies with its internal regulations, still less to ensure compliance by a Chinese temple of all its internal regulations. Whether CTC is under a duty to act, and the extent to which it is required to take action when irregularities in the management, or abuse of management powers, of a Chinese temple come to its notice, must depend on the circumstances. These are matters to be considered under Ground 2.

GROUND 2: OBLIGATION TO TAKE ACTION TO ENSURE COMPLIANCE WITH THE ABRIDGED REGULATIONS

72.The Applicant has raised two major grounds of complaint against CTC concerning the wrongful admission or eviction of members of MWT contrary to the Abridged Regulations. First, the Applicant complains that in the Letter, CTC wrongly confirmed the changes of membership of MWT based on the materials provided by MWT on 31 December 2017. However, as observed by Lam VP at §10 of the CA Leave Judgment, the Letter could not be read as a “decision” on the membership of MWT. It is clear from a reading of the Letter that CTC merely stated that according to its records, (i) MWT wrote to CTC on 19 July 2014 stating that it had 6 members, and (ii) MWT further wrote to CTC in December 2017 stating that there were changes of membership of MWT and there were only 4 members of MWT. In the Letter, CTC did not confirm the validity of the said changes of membership of MWT. The Applicant’s complaint is based on a misreading of the Letter. There is no basis to grant the first relief sought by the Applicant (namely, 宣告答辯人根據其在2017年12月31日收到曼華堂提供的資料所作對曼華堂成員更動的確認為違法並無效).

73.The Applicant’s second complaint is that CTC failed to investigate whether the addition or removal, or proposed addition or removal, of members of MWT in October and December 2017 were in breach of the Abridged Regulations, and further failed to take action to stop or remedy such breaches. Serious objections were raised by some existing members (ie Sik Tung Ding and Sik Ben Jian) to the proposed addition/removal of members as being contrary to the Abridged Regulations (see §22 above). Doubts were also raised as to the qualification of various office-bearers of MWT to hold their offices under the Abridged Regulations. Unlike previous instances where CTC did raise queries and ask MWT to produce appropriate evidence when it considered that changes in the membership of MWT as reported by MWT might not be in order (see §§16 and 19 above), it appears that CTC did not take any action to investigate the validity of the objections or whether MWT acted in breach of the Abridged Regulations, other than (i) seeking legal advice on whether there was sufficient evidence of any breach of Section 6(d), and (ii) chasing for some supporting documents which MWT had promised to provide when informing CTC of the removal of Sik Tung Ding and Sik Ben Jian in December 2017 (see §§26 and 28 above). In the circumstances of this case, we consider that it was well within the statutory functions and responsibilities of CTC to take reasonable steps to investigate the validity of the objections. As a start, CTC ought at least to have asked MWT to provide a response to the allegations of breach of the Abridged Regulations. What further action (if any) should be taken by CTC would depend on the response that might be given by MWT.

74.In our view, the Applicant’s complaint that CTC failed to discharge its statutory responsibilities is substantiated. Nevertheless, we do not consider that it would be appropriate to grant the second and third reliefs sought by the Applicant, namely:

“2. 宣告答辯人核實曼華堂成員及處理曼華堂管理竹林禪院時 ，必須依據曼華堂簡章；及

3. 命令答辯人履行在該條例下之下的公共職責，採取一切所需行動, 確保曼華堂的成員更動及竹林禪院的管理符合曼華堂簡章。”

75.This is because there has in fact been a judicial determination by Chu J, after a full trial in the High Court Actions, of the relevant issues, namely, (i) the proposed addition of 3 new members of MWT is invalid, (ii) the removal of Sik Tung Ding and Sik Ben Jian as members of MWT is invalid, and (iii) Au Yeung Shun Mei and Poon Kit Fong are not qualified to be manageress of MWT and Wong Mei Chun is not qualified to be a member of MWT (see §§264, 268, 280 and 292 of the Chu Judgment). Although we have held that the findings in the Chu Judgment are not admissible as new evidence for the purpose of this appeal, the fact that there has been a judicial determination of various issues is a matter of public record which may be taken into account when considering whether relief ought to be granted to the Applicant in the present application for judicial review. In our view, the second relief (declaration) and third relief (mandamus) sought by the Applicant will serve no useful purpose. In the exercise of our discretion, we decline to grant the second and third reliefs sought by the Applicant. We have considered whether some other form of declaratory relief may usefully be granted. However, the duty of CTC to act in any given situation is fact sensitive. We consider that a general declaration will unlikely be of any practical utility.

76.Having reached the above conclusions, it is not necessary for us to consider Grounds 3 and 4 insofar as they concern the Applicant’s complaint relating to the membership of MWT. In relation to other complaints, as earlier mentioned, we do not consider that the Applicant is entitled to rely on them in the present appeal.

DISPOSITION

77.Although the Applicant is successful in her arguments under Grounds 1 and 2, in view of the fact that we decline to grant any substantive relief to the Applicant in her application for judicial review, we dismiss the Applicant’s appeal.

78.In relation to the question of costs, although we have upheld the Judge’s Order dismissing the Applicant’s application for judicial review, we disagree with the reasons given by the Judge for the Order. Also, the reason why we have declined to grant the second and third reliefs sought by the Applicant is because of the existence of a subsequent judicial determination of the relevant issues made after the handing down of the Judgment by the Judge. In all the circumstances, we consider that the fair order to make is that there should be no order as to costs here and below. This is an order nisi, which shall become absolute unless an application is made to vary the same within 14 days from the date of this judgment, in which event the application shall be disposed of on paper and further directions will be given for the disposal of the application, including the filing of skeleton submissions by the parties.

Mr Clark Wang, instructed by K B Chau & Co, for the Applicant

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