張新霖 v. 黎錦文及另十一人
Read the full judgment text of CACV 252/2004 on BabelCite. This Court of Appeal judgment was delivered on 4 March 2005.
1. On 4 March 2005, we dismissed the plaintiff’s appeal. These are our reasons.
Cites 1 case
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CACV 252/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 252 OF 2004 (ON APPEAL FROM HCA 4389 OF 2003) ______________ BETWEEN
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Before: Hon Cheung and Tang JJA in Court Date of Hearing: 4 March 2005 Date of Decision: 4 March 2005 Date of Reasons for Judgment and Decision on Costs: 23 March 2005 ____________________________________ REASONS FOR JUDGMENT ____________________________________
Hon Tang JA (giving the Reasons for Judgment and Decision on Costs of the Court):
REASONS FOR JUDGMENT
1.On 4 March 2005, we dismissed the plaintiff’s appeal. These are our reasons. 2.This is the plaintiff’s appeal from the dismissal of his application for summary judgment by Chung J (“the Judge”). 3.This action concerns the Tsung Tsin Association (“the Association”), in particular, the election of the Association executive and supervisory committee held on 19 June 2003. 4.The Association was incorporated under the Companies Ordinance on 2 May 1959 as a company limited by guarantee for the purpose of taking over the management and assets of an unincorporated association of the same name which had been founded in 1921 by 11 civic-minded Hakka citizens. Upon incorporation, the registrar of company dispensed with the use of the word “limited”. 5.Article 70 (formerly article 68) of the Articles and Association of the Company provided the procedure and mode of election :
6.The articles also provided for 21 election commissioners to be elected by the members of the Association. 7.The defendants were 12 of those election commissioners. The other 9 supported the plaintiff in this action. 8.This is how the Judge described the event which led to this action :
9.By the action, the plaintiff seeks only one substantive relief, namely :
In essence, his application for summary judgment dated 23 February 2004 sought final judgment to similar effect. 10.The primary submission of Mr Derry Wong, who appeared on behalf of the plaintiff, was that article 70 did not give the election committee the power to suspend the counting of the votes. He submitted that the resolution passed by the election committee was ultra vires article 70. Mr Wong correctly submitted that article 70 did not confer power on the election committee to defer counting of the votes at whim. He went on to submit that article 70 required the election committee to count the vote no matter the circumstances. We do not think that can be right. We believe under article 70, the election committee was entitled to defer counting in suitable circumstances. Provided they had exercised their power in good faith and the decision was not unreasonable when viewed objectively, the court should not intervene. 11.Mr Wong has referred us to Rayfield v. Hands [1960] CD 1 and Jacques v. Amalgamated Union of Engineering Workers (Engineering Section) [1987] ALL ER 621. These cases showed that article 70 should be interpreted “to validate [the Articles] if possible”. We believe Mr Wong’s submission is supported by the words of Jenkins LJ in Holmes v. Keyes quoted by Mr Justice Vaisey in Rayfield v. Hand at page 4 as follows:
12.We agree that this is the correct approach to the construction of article 70. However we do not agree that thus construed article 70 conferred no power on the election commissioners to resolve to suspend the counting of the votes. 13.Mr Wong also argued that the decision was not justified by the circumstances. 14.What were the circumstances? The learned judge held that one of the triable issues in the case was whether there were in effect misdeeds in relation to June 2003 election. 15.If the judge gives unconditional leave to defend under Order 14, because he thinks that there is a triable issue of fact, the Court of Appeal will rarely differ, Hong Kong Civil Procedure 59/1/50. 16.Mr Wong has endeavoured to persuade us that there was in effect no basis for the judge’s conclusion that there were triable issues in relation to the so-called “misdeeds”. 17.He referred us, in particular, to the question whether there was any ambiguity in the voting voucher, voting ticket and notice to vote. They concern the deadline for the casting of votes. The notice to vote is in the following terms:
18.The voting voucher contained three relevant provisions :
19.The issue here is whether the deadline for voting was 12:00 noon or some later time. 20.The notice to vote does not say that the deadline was 12:00 noon. 21.Clause 5 of the voting voucher has made clear that the counting would begin at 2:00 p.m. Clause 2 provided that the exchange of the voting voucher for the ballot paper could be effected up to noon of 19 June. It is silent on whether one could vote after noon on 19 June. Insofar as one could exchange the voting voucher for the ballot paper up to the last moment, namely, at noon, and that the voting must take place thereafter, the voting voucher does suggest that the actual voting could take place after noon. 22.So far as the ballot paper is concerned, clause 3 is relevant :
23.However, this document does not help because this was not sent to a member but would only be obtained by the member when he exchanged his voting voucher for the ballot paper, which he could do up to and including noon on 19 June 2003. 24.Mr Wong has also made the point that in newspaper advertisements, it was stated clearly that the deadline for voting was 12 noon. That may be so, but we believe that the voting voucher and the notice were potentially misleading, and members could not be expected to remember the advertisements. 25.Whether any members had been misled, if so, how many and whether that would affect the outcome of the election are matters which required investigation. We are not prepared on the basis of the analysis of the affirmation evidence to conclude that there is no triable issue in relation to this. 26.Mr Wong has also referred us to the case of Woodward v. Sarsons & Ors, Vol. 10 CP 733. This was cited for the proposition that irregularities which do not affect the result of the election are immaterial. 27.Mr Wong submitted that until the votes were counted, one would not know whether the misdeeds complained of would or might have affected the result of the election. That being the case, he submitted it was illogical not to count the votes but to apply to the court for assistance. 28.The decision to defer counting was made unanimously by the election commissioners. We do not believe it can be said that such decision was one which no reasonable election commissioners would have come to. Nor can we rule out the possibility that the irregularities were such that the election could be said not to have been fairly or properly held, so that the attainment of a numerical majority should not be decisive of the election. 29.Mr Derry Wong also made the point that the allegation of corrupt practice by or on behalf of a candidate was irrelevant because the bribe had been refused. The matter has been reported to the ICAC for investigation. We believe this is relevant to whether or not a fair and proper election had been held. 30.Mr Wong has conceded that whether the Association is a charitable organisation should not affect the construction of article 70. We agree. But was the Association a charity as the defendants contend? 31.Despite Mr Wong’s persuasive argument, we do not believe it is necessary or desirable to come to any decision on this question. This must await full argument and mature consideration. Suffice it that even if Mr Wong is right and the Association is not charitable organisation, the matter would still have to go to trial. 32.Mr Wong has also submitted that he could demonstrate that the construction put on article 70 by the defendants are unworkable by reference to the proceedings brought by some members of the Association in HCMP 1856/2004. There were 10 applicants in HCMP 1856/2004. The 1st, 2nd, 4th, 5th, 7th, 8th, 10th and 11th defendants in the present proceedings were amongst them. HCMP 1856/2004 was brought under section 57A of the Trustees Ordinance and Order 120 of the Rules of the High Court. In other words, on the basis that the Association is a charitable trust. The relief sought in that action included the following :
33.Mr Wong submitted that HCMP 1856/2004 is misconceived because the Association is not a charitable trust. But even if Mr Wong is right, it does not mean that article 70 is unworkable. The matters complained of could nevertheless be subject of judicial determination. The fact that on Mr Wong’s argument, the wrong procedure has been invoked does not by itself show that article 70 is unworkable. 34.Mr Wong also made the point that the election commissioners were not entitled to delegate their duties. He referred us to Bowstead on Agency,17th Edition and submitted that because the performance of the obligations of the election commissioners involved the exercise of discretion, no delegation to any agent, including lawyers, was permissible. 35.But the decision here to suspend or defer the counting of votes was in substance a decision by the election commissioners to seek a determination by the court so that they should act accordingly. The decision would or might depend on resolution of disputed facts. The guidance of the court on questions of law was also required. So this is not a case of any delegation by the election commissioners as such. 36.For the above reasons, we dismissed the plaintiff’s appeal. DECISION ON COSTS 37.Mr Anthony Neoh, SC, who appeared on behalf of the defendants asked that the costs of the appeal be awarded to the defendants on an indemnity basis. He said that the appeal ought not have been made. Moreover that since the funds of the Association are devoted to charitable purposes the Association should not have to bear the shortfall in the event of a taxation on a party-and-party basis. 38.Although we have dismissed the appeal, we do not believe the plaintiff has been guilty of conduct which would warrant an order for indemnity costs. Nor should the nature of the Association affect the liability of the opposing party. 39.Mr Derry Wong submitted that costs should be in the course. We do not agree. Mr Wong is wrong to compare the dismissal of the appeal to the defendants being granted unconditional leave to defend on an application for summary judgment. 40.We order that the plaintiff is to pay the defendants’ costs of the appeal, such costs to be taxed unless agreed and paid forthwith.
Mr Derry H.M. Wong, instructed by Messrs Ha & Ho, for the Plaintiff Mr Anthony Neoh SC, K.M. Chong and William Yoneya Leung, instructed by Messrs Peter Mo & Co., for the Defendants | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under CACV 252/2004