To Kin Wah v. Tuen Mun District Officer and Others

HCAL000105/2002

HCAL105/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 105 OF 2002

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Coram: Hon Tang J in Court

Dates of Hearing: 15 - 16 July 2004

Date of Judgment: 27 August 2004

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J U D G M E N T

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1.Tsing Wan Kun ("TWK") is the well-known Taoist Temple. It is a t'ong within the meaning of section 15 of the New Territories Ordinance, Cap.97 ("the Ordinance"). Its members are the members of the To Ka Yi Tso ("the Tso"). The 2nd, 3rd and 4th respondents are the managers of the Tso. I shall refer to the 2nd, 3rd and 4th respondents as the respondents. I shall refer to the 1st respondent as the District Officer. The members of the Tso are the descendants of To Ka Yi who died in 1454. The Tso comprised three fongs. Speaking generally, members of these fongs resided in five villages in Tuen Mun (namely, Nai Wai, Tsing Chuen Wai, Tin Tsz Wai, Lam Tei Tsuen and Fun Tei Sun Tsuen). Each of the respondent came from a different fong.

2.The respondents were the 1st plaintiffs in Secretary for Justice v. To Kan Chi & Others [2000] 3 HKCFAR 481 (the Main Proceedings), and To Cheong Lam, To Siu Lam, To Mei Lun, To Man Hing and To Muk Tai were the 2nd plaintiffs as representatives of the To Clan. The 2nd plaintiffs were appointed or selected to represent the five villages. As a result of the Main Proceedings, TWK was entitled to funds in Court in the sum of about HK$300 million. This is what Bokhary and Chan PJJ said in their joint judgment at 493G :

" ... This means that the temple Tsing Wan Kun and all its assets, which now include the Funds, are owned by the t'ong Tsing Wan Kun whose members are ultimately the members from time to time of the Tso and the Clan.

The temple Tsing Wan Kun's assets are, as they have been for centuries, devoted to the purposes of due observance of the customary ceremonies of the temple Tsing Wan Kun and of maintenance of its temple buildings and temple properties. They will remain so devoted unless and until the t'ong Tsing Wan Kun, proceeding in a manner which conforms with Chinese law and custom, withdraws them from devotion to those purposes."

3.As background to this proceedings, there were allegations and counter-allegation by the respondents and the 2nd plaintiff in the Main Proceedings, in particular, To Cheong Lam (昌林) over the management of some of the funds of TWK, in particular, the funds raised for the prosecution of the Main Proceedings. It may also be correct to say that underlying this proceedings is the fight for the control over the considerable funds of TWK. Paragraphs 13 and 14 in the letter of objection to the District Officer over the appointment of the respondents may also provide some insight into the dispute :

"13. The 3 persons To Kam Chow, To Fook Tim and To Kan Chi were nominal 1st Plaintiffs in the recent litigation and given no control over the proceedings by the members of the To Clan/To Ka Yi Tso. The litigation was always in the control of the 5 representatives To Mei Lun, To Siu Lam, To Cheong Lam, To Man Hing and To Muk Tai as the 2nd Plaintiffs, and it is wrong for the 3 persons to claim any right to the managership of the Tsing Wan Kun on this basis.

14. We believe that the 5 representatives who were the 2nd Plaintiffs and appointed by the To Clan/To Ka Yi Tso to take charge of the successful litigation for the return of the Tsing Wan Kun should be managers, as they were appointed for the purpose of recovering the Tsing Wan Kun and to handle its affairs."

I should add that the respondents do not accept that they were nominal plaintiffs in the Main Proceedings. In retort, the respondents have alleged that the applicant was a mere front in this proceeding. I do not believe it matters to this proceedings whether any of these allegations was true or not.

4.Various lots of land were registered in the name of TWK. TWK had had no manager for many years. Under section 15 of the Ordinance, TWK :

"... shall appoint a manager to represent it. Every such appointment shall be reported at the appropriate New Territories District Office of the Home Affairs Department, and the Secretary for Home Affairs on receiving such proof as he may require of such appointment shall, if he approves thereof, register the name of the said manager..."

Section 15 is silent on the method of appointment and what proof of the appointment was required.

5.On 2 January 2004, the Tuen Mun Home Affairs Department by the District Officer, approved the appointment of the respondents as managers as from 2 January 2002.

6.The applicant To Kin Wah, is a member of the Tso. He is the son of To Cheong Lam, one of the 2nd plaintiffs in the Main Proceedings. This is his application for judicial review against the approval of the appointment of the respondents as managers of the TWK.

7.The District Officer, Mr Lum Kwok Keung Jacky, explained the appointment in his affirmation dated 27 May 2002 (the affirmation) :

"7. In my experience, there is inherently a certain degree of flexibility in the procedure for the appointment of a manger by a clan, family or t'ong to represent it for the purposes of Section 15, just as it is with all other village affairs. There is simply no set rule or procedure and the manner in which the appointment is carried out may vary from time to time and from village to village. In the appointment of managers, like all village affairs, the tendency in the past has always been to seek common consensus and this is still true to a large extent. In the case of a clan, family or t'ong with a small or closely-knit membership, it may be that it is still possible for a manager to be selected by consensus without even the need for formalities such as the holding of a meeting. However, in an age of a clan, family or t'ong getting larger in size, contested elections for the appointment of managers is increasingly common.

8. Section 15 clearly draws a distinction between the 'appointment' of the manager and the 'reporting' of such appointment, the responsibility for which lies exclusively with the family, clan or t'ong concerned, and the 'approval' and 'registration' of the newly appointed manager, which is the responsibility of the District Officer. It can be seen that the underlying approach is to leave the clan, family or t'ong to run its own affairs. The t'ong alone must decide on the number of managers and who to appoint and in the absence of consensus, it is for the t'ong to devise its own procedure for resolving such differences as might exist. The role of the District Officer being one of supervision only, it is not for him to lay down the rules for the appointment of a manager.

9. 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.

10. In the circumstances, it is clear that in deciding whether to approve an appointment, the District Officer cannot be expected to do more than to ensure that overall the process can be said to be fair, and that the managers appointed are apparently fit and proper person and that they enjoy the broad support of the membership as a whole.

11. In the present case, the application for the approval of the appointment of the 2nd, 3rd and 4th Respondents as managers of Tsing Wan Kun was supported by documents which show that members of the To clan had held 2 meetings respectively on 13th May 2001 and 12th August 2001 to discuss about the appointment of managers of Tsing Wan Kun. These meetings were open to all members of the To clan and were preceded by notices which had been posted in all 5 of the villages of the To clan. There is now produced and shown to me copies of the notices respectively marked exhibit 'LKKJ-3' and 'LKKJ-4'. I was therefore satisfied of the overall fairness of the process for the appointment of the managers.

12. Further, I was presented with the minutes of the 13th May meeting which show that the appointment of the 2nd, 3rd and 4th Respondents as managers of Tsing Wan Kun received the unanimous support of all those present. There is now shown to me marked exhibit 'LKKJ-5' a copy of the said minutes. I was also provided with a list of signatures which shows that a large number of members of the To clan who did not attend the said meeting had subsequently signed up to support the appointment of the 3 managers. Even if one were to exclude the names of all the minors and anyone who did not sign personally and also the names of those who have since lodged objections against the appointment, the list shows that 269 out of a total of 407 adult members (i.e. some 66%) supported the appointment. There is now produced and shown to me marked exhibit 'LKKJ-6' a copy of the said list of signatures. In addition, the 2nd, 3rd and 4th Respondents are respectively the headmen of the 3 'f'ongs' or branches of the To clan. Thus, I was satisfied that the appointment of the 2nd, 3rd and 4th Respondents as managers of Tsing Wan Kun received majority support within the To clan.

13. The 2nd, 3rd and 4th Respondents are the current managers of the To Kai Yi Tso. The 2nd and 3rd Respondents are also managers of other t'sos/t'ongs of the To clan. According to my records there has never been any complaints lodged against any of them for improprieties in handling affairs in connection with the above t'sos/t'ongs under their managership. In the circumstances, I was satisfied that the 2nd, 3rd and 4th Respondents were fit and proper persons to be appointed as managers of Tsing Wan Kun.

14. After an application for registration as managers under Section 15 has been received by the District Officer, he would post up public notices calling for objections to be lodged within 1 month. This is not a statutory requirement but it is well-established practice which, as far as I know, is invariably followed by District Officers when called upon to approve the appointment of managers under Section 15. The idea is to allow those within the clan, family or t'ong who disagreed with the appointment to raise their concerns direct with the District Officer. This procedure is clearly premised on the assumption that an appointment may not have the unanimous support of the entire membership and it goes to show that there cannot be any legal or customary requirement for unanimity as suggested by the Applicant. There is now produced and shown to me marked exhibit 'LKKJ-7' a copy of the public notice calling for objections to the appointment of managers of Tsing Wan Kun.

15. Any objections received by the District officer would be carefully considered as to their merits before a decision is made as to whether to approve the appointment of managers. In processing the application for appointment of t'so/t'ong managers, upon receipt of the objection, the District Officer would consider each case thoroughly. It is not uncommon that District Officers at times exercise their discretion to approve appointment of managers despite the fact that there is no unanimous support from all members. I understand that for instance the District Officers of Yuen Long had exercised his discretion to approve the appointment of t'so/t'ong managers despite the lack of unanimity of t'so/t'ong members.

16. In the present case, the objections set out in the letters of 22nd November have been carefully considered by me. As none of the objectors would accept the invitation to attend my office to discuss the matter, I could only make my decision based on the material before me. For the reasons already set out above, I concluded that I should approve the appointment of the 2nd, 3rd and 4th Respondents notwithstanding the objections raised."

8.Mr Warren Chan who appeared on behalf of the applicant accepted that the District Officer was required "to ensure that overall the process can be said to be fair". Mr Chan did not contend that the TWK had to conduct itself in accordance with requirement of the law for corporations and unincorporated associations. But he challenged the appointment for procedural unfairness because he said the District Officer had failed to ensure that the process was overall fair. In essence, Mr Chan's point is that the District Officer had failed to appreciate an important discrepancy between the notice dated 5 May 2001 concerning the meeting of 13 May 2001 and the resolution purportedly passed at the meeting of 13 May 2001.

9.The notice of 5 May 2001 was in Chinese. Mr Chan drew particular attention to the statement in the notice that the meeting of 3 May 2001 was convened to "consider and discuss the despatch of two representatives from the three fongs to be the managers of TWK". But at the meeting on 13 May 2001, those attending the meeting purported to resolve that the respondents should be appointed as the manager of the TWK.

10.Thus Mr Chan argued that there was an important discrepancy between the notice and what was resolved at the meeting ("the Discrepancy"). He also submitted that since the District Officer had failed to take into account the Discrepancy his decision should be set aside. Although Mr Chan has called this the Discrepancy point, this is essentially, a notice point. But as I have said, he did not contend that requirements of proper notices in the case of corporations or unincorporated bodies, such as partnerships and clubs, applied. He contended that the appointment process must be fair overall.

11.The notice of 3 May 2001 was preceded by a meeting of the Tso held on 27 April 2001 where it was resolved :

「議決第二方案以三大房派出人选任司理每房兩名共六名。

一致通过並無反對

(二) 下次開會期定于二((一年五月十三日以陶嘉儀祖司理名義出通告。並请各房當年值理自行召集会議派出兩名代表出任青云观司理。並即時提交給與民政事務處去註冊。」

"Resolved for the 2nd proposal, managers to be appointed from the 3 big fongs, 2 representatives from each fong totaling 6.

Resolved unanimously, no objection.

(2) The next meeting will be held on the 13th day of May 2001, notice therefor will be given in the name of the Managers of To Ka Yi Tso. Each fong is requested to summon its own meeting to send out 2 representatives to be appointed as the managers of Tsing Wan Kun and to be submitted to the District Board Office for registration."

The notice convening the meeting of 27 April 2001, if any, has not been produced. It has not been suggested that the notice was in any way defective.

12.Mr Chan said two important principles were involved in the resolution of 27 April : (1) the autonomy of the fongs, namely, that it was for each of the fong to choose its representatives; (2) equal representation of the fongs, namely, two from each fong.

13.There is no evidence that any of the fongs had met, prior to the meeting of 13 May, or at all, to "send out" any representative to serve as manager of TWK.

14.Mr Chan did not, for the purpose of this application, rely on any custom or tradition. That, he said, could be left to other proceedings between the parties. He said a deliberate decision had been made not to adduce evidence of any custom or tradition either on the appointment or selection of managers or on the autonomy of the fongs or the question of equal representation of each of the fongs. I make no comment on that approach. But Mr Chan's approach is consistent with the main thrust of his argument, namely, that the decision of the District Officer to appoint the respondents was flawed because the District Office had overlooked the Discrepancy.

15.Mr Chan did not contend, for the purpose of this application that, if the notice of 5 May had expressly stated that the meeting of 13 May 2001 was convened to select or appoint managers of TWK by the members of the Tso as a whole rather than by each fong separately, so that there was no discrepancy, the decision of the District Officer could be challenged.

16.It is clear from the evidence of the District Office quoted in paragraph 7 above that in approving the appointment he did not rely solely on the meeting of 13 May 2001.

17.For example, the District Office also relied on the meeting of 12 August 2001, see paragraph 11 of the District Officer's affirmation. That was a meeting which involved proposals dealing with the substantial cash assets of TWK. The notice calling the meeting was dated 26 July 2001, and was headed "Re Tsing Wan Kun". Essentially the meeting was convened to resolve that apart from $50 million and the land on which TWK is situated, "all other property, assets and funds ... shall be applied for such purpose and in such manner as the T'ong Tsing Wan Kun may from time to time determine". The meeting thus convened was likely to be treated as important by Tso members, because it would effectively free some $250 million to be applied "for such purpose and to such manner as the T'ong Tsing Wan Kun may be from time to time determine". The meeting was held on 12 August 2001. The resolution, effectively, to withdraw all but $50 million from the funds of TWK for devotion to the temple purposes, was passed. Although the notice concerning the meeting was silent on the appointment of managers for TWK, one of the matters discussed at the meeting was (the registration of managers for TWK) "青雲觀註冊司理事". It was unanimously resolved at this meeting that the respondents be registered as managers of TWK.

18.In addition, in August 2001, bundles of letters of consent was supplied to the District Office of members of the Tso exhibit LKKJ-6 showing that "about 302 members supported the appointment of the 2nd to 4th respondents as the managers of t'ong Tsing Wan Kun whilst only about 24 did not with the remaining of about 71 being residing overseas all these years". See affirmation of To Kan Chi 23 September 2002 paragraph 11. I am aware that in his 2nd affirmation the applicant attacked the genuineness of some of the signatures, although this was not pursued at the hearing. I should also note the evidence of Mr Hung Chun Leung, a partner in the respondents' solicitors who deposed to the effect that on 27 October 2002, he verified a large number of signatures at the Ancestral Hall of the To clan, so that out of "about 103 out of 153 whom the applicant alleges to have been signed by the same hand", these persons' support for the appointment of the respondents were verified by him. These verifications in writing run to 30 pages and were produced as Exhibit HCL-1. These documents led the District Officer to conclude that 269 out of a total of 407 adult members appeared to support the appointment of these respondents. See paragraph 12 of the affirmation.

19.Furthermore, in paragraph 14 of the affirmation, the District Officer referred to notices calling for objection. He described this as a "well-established practice, which, as far as I know, is invariably followed by District Officer when called upon to approve the appointment of managers under Section 15". There is no dispute that this is a well-established practice.

20.I think it is fair to say that the District Officer's notice calling for objections to be lodged within one month was an important step in the approval process. The objection letters were received by him as a result. He invited the objectors to discuss the matter, but that was declined. He was entitled to take the foregoing into consideration in deciding whether the respondents had been appointed managers by a process which was overall fair.

21.It is clear that in reaching his decision to approve the appointment the District Officer did not act on the resolution of 13 May alone. He had before him the resolution of 13 May, the resolution of 12 August, the evidence supplied in August of members of the Tso including those who had not attended the meeting but who approved the appointment of the respondents. He also had the objection letters. And, he was aware of course, the respondents were also the managers of To Kai Yi Tso. The evidence available to him enabled him to come to the conclusion that the respondents had been properly appointed and that he should approve their appointment.

22.The Court of Appeal in To Kin Wah v. Tuen Mun District Officer & Ors (No.2) [2003] 4 HKC said at paragraph 37 :

" If the District Officer did not have the minutes of the meeting of 27 April 2001, then obviously it cannot be said he had overlooked something in his decision making process. However, the other documents in his possession clearly revealed that something may have gone amiss in the eventual passing of resolution on the appointment of the managers. No doubt the managers are members of Tsing Wan Kun and each of them is a member of an individual Fong of the three Fongs from which the managers should be appointed. But this is not what the notice of 5 May 2001 had stated as to how the managers were intended to be appointed at the meeting of 13 May 2001."

23.This was said on the application to set aside leave. The Court of Appeal was not deciding the issue. So I do not think Cheung JA's observation would preclude me from holding, in all the circumstances, that the decision of the District Officer was overall fair. As would have be noted from paragraph 7 of the affirmation, there is : "a certain degree of flexibility in the procedure for the appointment of a manager" and that "the tendency in the past has always been to seek common consensus and this is still true to a large extent." That may explain why he regarded the appointment as a process and did not rely solely on the meeting of 13 May alone.

24.In an article published in the Hong Kong Law Journal 1991 HKLJ 45 by Mr Stephen Selby who had spent over five years in the District Offices in New Kowloon and the New Territories and who chaired a working group on Chinese Customary Law in the New Territories and New Kowloon between 1986 and 1988 - "Everything you want to know about Chinese Customary Law (but were afraid to ask)", at page 64 under the heading of "How decisions are reached" he wrote :

" Much is made of the Chinese system of 'reaching consensus through compromise.' However, dictionary definitions of 'consensus' held little in understanding the process or the role played in the process by family or community leaders. Where a group is to decide on an issue, a meeting is usually held; but frequently this is just the formal culmination of a protracted process. The following description is intended to explain the process for those who are unfamiliar with it. Such a process is, of course, not peculiar to CLT management.

At the outset, everyone involved is told of the matter at issue. If all agree, then the affair is simply decided. When there is minority dissent, the matter has to be handled through 'consultation' in order to reach unanimity. The Chinese principle of 'unanimity through consultation' has been given a heavy political gloss, but the procedure is traditional.

The elders have a particular responsibility in ensuring that it is made subtly known to the dissident group that it is in a minority. At this point, the solution is not reached through voting, which produces winners and losers with whatever rancour that entails, but through finding out what would induce the dissident side not to voice its objection, thus letting the matter proceed with only support or abstention. Much importance is attached to the leaders' ability to allow the opposition to have its say. The inducement to drop an objection may involve modifying the original proposal to the satisfaction of the dissenting side (or at least giving the appearance of a modification, for face's sake). Alternatively, it may be as crude as a cash pay-off. The skills of leadership involve conduct of such negotiations.

The great weakness of this system is that it invites spurious objections from members motivated by a wish to squeeze an advantage from the majority. In weighing up objections brought to the attention of Land Officers, if the dissenting party is not prepared to justify its objection, then its dissent may have to be regarded as a possible attempt at 'squeeze'. At the same time, however, it is important to consider the possibility that strong branches of a CLT may be trying to obtain an unfair advantage over weaker branches."

25.It would have been noted at the meetings of 27 April 2001, 13 May 2001 and 12 August 2001, all the decisions were made unanimously, although some of the objectors attended one or more of these meetings. The 27 April meeting was attended by about 39 members, about 40 members attended the 13 May meeting; and about 43 attended the 12 August meeting. The members attending may seem small but it is common sense that some of the members would be there speaking or attending on behalf of their brothers, sons and grandsons, many of whom still lived in the five villages. Indeed, this is consistent with what the applicant said in his 4th affirmation dated 3 August 2004 quoted below in paragraph 35 and the affirmation of To Kan Chi, the 4th respondent dated 23 September 2002 at paragraph 25.

26.I do not think it is right to concentrate on the notice dated 5 May and the resolution made on 13 May and disregard how decisions were made by Tsos in the New Territories. The District Officer had said he did not rely solely on the notice of 5 May and the meeting on 13 May, rather, and as the affirmation showed, he took into consideration all the circumstances.

27.Briggs J (as he then was) said in Li Tang Shi v. Li Wai Kwong & A.G. [1969] HKLR 367 at 382 :

" The District Officer has no power to appoint a manager unless the Tong or family or clan has appointed him first. The appointment originates with the Tong, family or clan. Not with the District Officer."

28.But, approval is not automatic. One of the matters which a District Officer must have regard to is whether the "appointment" of the manager by the family or clan has been fairly made. And it is of course an important part of his decision-making process, that he gave notice of the proposed appointment of managers so that objections could be made.

29.Mr Chan criticized the notice given by the District Office on 2 November 2001. The notice was headed "Application for appointment of Manager for Tso/Tong". It called for objection to the appointment of the respondents of whom it was said : "現陶族子孫議決推舉由陶福添、陶鑑籌、陶根池出任青雲觀司理". The Chinese expression used is "推舉". I believe the expression "推舉" has the connotation of selection/nomination. In other words as I read the notice it stated that the respondents had been selected or nominated by members of the Tao clan. For all relevant purposes, members of the Tao clan and the Tso were the same. I believe a clansman reading the notice would understand that the District Officer was referring to a selection or nomination of the respondents by members of the Tao Clan, and that the application was for the approval by the District Officer of the appointment and that objections should be lodged within one month of the notice. Mr Chan made the point that the District Officer did not appoint managers, he merely approved their appointments. So the notice was misleading. It is correct to say that the District Officer did not appoint and that he merely approved the appointment of managers. But, the "appointment" by the tong would be of no effect unless it was approved by the District Officer. Thus the approval by the District Officer is an integral part of this appointment process. I do not think the notice was misleading. Mr Chan also said that the notice did not say that these respondents had been elected or appointed on 13 May 2001. It might suit the applicant's purpose to insist that the appointment or election took place on 13 May 2001 and to disregard everything else. But that was not the District Officer's approach. By the time of the notice, he already had, the meeting of 12 August 2001, as well as the letters of consent referred to in paragraph 18 above. So I am not surprised that the District Officer did not refer to the meeting of 13 May.

30.I turn to consider the significance of the Discrepancy to the overall fairness of the appointment process. In considering the significance of the Discrepancy to the appointment process I think, I am entitled to consider the attitude of the objectors to it.

31.Now the Discrepancy was not relied on by the applicant or any of the objectors in their objection letters to the District Office. The objection letters were all dated 22 November 2001 and so far as I can see identical in terms. It was signed by 11 objectors including the applicant. In the objection letter it was suggested that the 2nd plaintiffs in the Main Proceedings should be appointed as managers of the TWK together with the son of the head of the clan, namely, To Yau Shun who also signed one of the objection letters.

32.Mr Chan made the point in his oral submissions that there was no evidence that the applicant was aware of the resolutions of 13 May or 12 August. There was no positive evidence from the applicant that he was unaware that on 13 May or 12 August the Tso had purportedly "appointed" these respondents as managers of TWK. He submitted that this is a matter which I should decide on the balance of probabilities. I think that is the correct approach. But in doing so I will also use my common sense.

33.Subsequent to the hearing, the applicant applied for leave to adduce further evidence on his state of knowledge regarding the resolutions of 13 May or 12 August. The new evidence in the form of the 4th affirmation of To Kin Wah dated 3 August 2004 was produced without opposition. He denied knowledge of the notice and minutes of the 27 April meeting, the notice and minutes of the 13 May meeting and notice and minutes of the 12 August meeting. According to the 4th affirmation, the applicant has lived in Dongguan since 1996 and that he seldom visited Nai Wai. I set out below in his own words, how the letter of objection came to be signed by him :

"14. In mid-November 2001, I was contacted by my father, who lived in mainland China. He told me that he had been informed by another To Clan member (whose identity I have promised not to reveal) that the District Office had posted a notice regarding an application by To Fook Tim, To Kam Chau and To Kan Chi to be appointed as the managers of T'ong Tsing Wan Kun. My father further told me that he would prepare a letter of objection.

15. In respect of the notice of the District Office ('TKW-13'), I was shown a copy by my father before the letter of objection was ready. He told me that he had been given a copy by the To Clan member who had first informed him of it.

16. A few days later, my father showed me a letter of objection dated 22nd November 2001 ('the Letter of Objection'). I believed the contents were composed by my father, and the letter was typed up by someone who was able to type Chinese characters. I agreed with the contents. I then put my signature on the letter, next to my father's signature. When I put my signature on the letter, there was only my father's signature on the letter.

17. I did not mention the discrepancies between the notices and the minutes in the Letter of Objection because when I signed the letter, I had no knowledge of the purported appointment.

18. After I signed the Letter of Objection, my father took it away. I did not know what happened to it, but I believed that the letter had been sent to the District Office. This was confirmed in mid-December, when I heard from my father that the District Office had replied. I collected a letter from the General Post Office in Central District, which had been sent by 'Registered Post', which I passed on to my father.

19. I do not know how the other signatures came to be added to the letter. Of the other persons who signed the Letter of Objection.

(a) I knew To Yau Shun (陶有信) by sight, and would always greet him with the words 'Suk Kung' (叔公) if I saw him around Nai Wai. To Yau Shun was the Chief Elder of To Clan, and lived near Nai Wai, although I did not know precisely where. I did not talk a great deal to him, as he was of a different generation to me, and had never spoken to him about the matter of Tsing Wan Kun. I have never spoken to him about the Letter of Objection. I learnt from my father that sadly, To Yau Shun (陶有信) had passed away a few months ago.

(b) I do not know '陶蘭桂'.

(c) I do not know 'Tony To' or 'Eric To'.

(d) I do not know '陶永賢'.

(e) I do not know '陶炳源'.

(f) I believe that 'To Kai Wah' is my youngest brother, although I did not know at the time he would sign on the letter as well."

34.Now, the 4th affirmation shows quite clearly that the applicant's father, To Cheong Lam, was the moving force behind the objection.

35.This is what the applicant said about his father in his 3rd affirmation :

"19. It is not true to say that I have shown no interest in the affairs of the Tsing Wan Kun. I have often discussed what was happened with my father and other family members during the course of the litigation between 1995 to the present date. I have also attended more meetings than were alleged by the 4th Respondent, for instance the meeting which rejected the book of To Fook Tim as an authorized Book of Genealogy of the To Clan held on 7th July 1996. There is now shown and produced to me marked and exhibited as 'TKW-34', a copy of the signed minutes of this meeting, which I also signed.

20. In respect of the affairs of tso and tong I have always trusted and believed in my father to represent my interest and that of my son, so attendance at every meetings has never been necessary. That does not mean that I have given up my right to attend or exercise my right as a member of the To Clan and of the tong Tsing Wan Kun to intervene now. My interest and the interest of my son are at stake, and I wish to ensure that the very substantial assets involved are administered for the benefit of all its members, and not just a small few, some of whom I believe are willing to use threat of or even violence to force their own way.

21. I would be very reluctant to attend meetings called by the 2nd to 4th Respondents, without proper safeguards, for the plain and commonsense reason that it may result in physical assault. With huge sums of money at stake, passions can run very high. I believe that their openness in the circumstances is really only a charade."

36.Now, it appears that although To Cheong Lam did not attend any of the meetings (and there is no explanation why not although it has been alleged that threats of violence were made against him as early as January 2001), one of his sons, namely, To Kai Wah, attended the meetings of 27 April 2001 and 13 May 2001. According to To Kai Wah's statement to the police dated 26 June 2002 which has been exhibited to the 3rd affirmation of the applicant, he lived at the same address, namely, 157, Nai Wai, Tuen Mun as the applicant and their mother. I should also mention that in the applicant's statement to the police dated 16 April 2002, it seemed that he was at that address, about to have dinner, when he claimed someone broke a window. Also in all his affirmations that was the address used and it was only in the 4th affirmation that he claimed to be lived in Dongguan and that he seldom visited Nai Wai.

37.Also out of the 11 persons who signed the letter of objection, To Wing Yin, one of the signatories, attended the 12 August 2001 meeting. To Yau Shun attended the 13 May 2001 meeting. As I have said, the applicant's brother, To Kai Wah attended the meetings of 27 April 2001 and 13 May 2001.

38.As for the persons proposed to be appointed managers by the objectors, To Mei Lun and To Man Hing attended the 27 April 2001 and 13 May 2001 meeting. To Siu Lam attended the 13 May meeting. All three of them attended the 12 August 2001 meeting. They were part of the 2nd plaintiffs in the Main Proceedings. I believe it is highly probable that they were aware of the objection letters and the proposal to appoint them as managers. Presumably they were prepared to act otherwise there would have been no point in "nominating" them.

39.There was no evidence from the applicant's father. But using common sense, I do not believe it probable that To Cheong Lam who drafted and instigated the objection letters was unaware of the April, May and August meetings, the first two of which was attended by his son, and the last attended by three of the five 2nd plaintiffs in the Proceedings. It is also quite inconceivable that he was unaware that in August 2001, the respondents were procuring signatories of members to support their appointment. Indeed, the same could be said of the objectors, in particular, To Kai Wah, To Mei Lun, To Man Hing and To Siu Lam.

40.As for the applicant's state of knowledge, despite his 4th affirmation, I do not believe but he was unaware that on 13 May and 12 August 2001 the respondents were purportedly appointed or confirmed as managers. Or that he was not aware of the procuring of signatures in support of the respondents' appointment in August 2001. The Tao was too close-knit a body for his father not to know. And if his father knew it is inconceivable that he did not know. Also I do not believe, his brother, To Kai Wah, who attended both the meetings of 27 April and 13 May would not have told him what happened at those meetings. I am aware of the allegation that minutes of meetings were not circulated (the evidence was that they were never circulated), but there is no serious suggestion that the minutes as produced did not record what happened at the meetings accurately. So the persons who actually attended those meetings would know what had been resolved at those meetings.

41.I think I am entitled to use common sense in deciding how important the Discrepancy was to the appointment process. Using common sense, I do not believe the Tso members regarded the Discrepancy as significant or that it rendered the decision of 13 May or 12 August unfair, or the overall appointment process unfair.

42.On the question whether the Discrepancy was significant, Mr Chan also relied on his two principles. Although there was no evidence on the two principles, I am quite prepared to accept very often there would be equal representation of the fongs and that each fong would select its own representative. Whether and to what extent that is observed by a tso would depend on the circumstances. Here, for example, at the 27 April meeting, one proposal was that the managers should be selected from the five villages as opposed to the three fongs. Indeed, in the letter of objection, that was the suggestion. In addition, it was suggested that the son of the headman should be appointed as a manager, anyway each of the respondents came from a separate fong, so equal representation of the fongs was maintained. As for "selection" by each fong separately, again, one must recognise the fact that this would be done by consensus too. In any event since the decisions at all the meetings were made unanimously I do not think it matters whether they were selected each by his own fong or by general acclamation. Up to date, this is no suggestion that the three fongs were not represented at these meetings.

43.Moreover, on analysis, the two principles are independent of the notice or discrepancy point. In other words, even if there was no discrepancy between the 5 May notice and the 13 May meeting if the two principles (if established to be inviolable) were not observed the appointment would still be invalid. On that Mr Chan accepted that he needed evidence of custom, which he chose not to adduce.

44.Mr Chan also relied on ground (a) in his skeleton. This made the point that before the District Officer could appoint the respondents he had to be satisfied that they had been appointed by TWK. On the evidence before me, the District Officer were entitled so to conclude. I repeat he did not rely on 13 May meeting alone. The meeting was only part of the appointment process, which he regarded as fair overall. As for Mr Chan's criticism of the District Officer's statement that "the appointment of a manger under section 15 does not correspond to any existing Chinese custom". I think fairly read the District Officer was simply making the valid point that registered managers were creatures of the New Territories Ordinance and not Chinese custom.

45.Mr Chan also relies on ground (d) and complained of the District Officer's letter of 31 December 2001 :

「本處得悉候任青雲觀司理會於稍後時間召開青雲觀有份人會議研究是否有需然增加青雲觀司理數目。」

46.I do not believe that the District Officer was trying to justify their approval by saying that there would be a proposed meeting to discuss the appointment of additional managers. I think they were giving such information to the objecting members by way of information only. It is quite clear from the 1st and 2nd paragraphs of that letter that approval was given because the respondents had been "selected" or "appointed" (推選) by members of the Tso and enjoyed the support of a majority of such members.

47.So in all the circumstances I am of the view that the District Officer was entitled to conclude that the respondents had been appointed managers by members of TWK by a process which was overall fair. It follows that the District Officer was entitled to approve the appointment.

48.The application is dismissed. I make an order nisi that the 1st, 2nd, 3rd and 4th respondents are to have the costs of this application, to be taxed, if not agreed.

Representation:

Mr Warren Chan SC, leading Mr Liu Man Kin instructed by Messrs Krishnan & Tsang, for the Applicant

Mr Michael Yin for Department of Justice, for the 1st Respondent

Mr Alan Leong SC, leading Mr Francis Yip instructed by Messrs Dominic Y.K. Lai & Co., for the 2nd to 4th Respondents