To Kin Wah v. Tuen Mun District Officer and Others

CACV 358/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 358 OF 2004

(ON APPEAL FROM HCAL NO. 105 OF 2002)

BETWEEN

Before : Hon Cheung JA, Chu J and Lam J in Court

Dates of Hearing : 16 and 19 December 2005

Date of Judgment : 12 January 2006

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J U D G M E N T

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Hon Cheung JA :

The appeal

^1.T’ong Tsing Wan Kun (‘the T’ong’) [青雲觀堂] is a traditional landholding institution in the New Territories within the meaning of section 15 of the New Territories Ordinance (‘NTO’).  On 13 May 2001, the 2^nd, 3^rd and 4^th respondents were appointed as the managers of the T’ong.  On 2 January 2002, the 1^st respondent who was the District Officer (‘the District Officer’) of Tuen Mun at that time approved the appointment of the managers.  The applicant, who is a member of the T’ong, applied by judicial review to challenge the decision of the District Officer to approve the appointment.  Tang J (as he then was) dismissed the application.  The applicant now appeals.

The facts

2.The history of the T’ong and its land holding has been fully set out in the decision of the Court of Final Appeal of 22 December 2002 in the case of Secretary for Justice v. To Kan Chi [2000] 3 HKLRD 756.  It is only necessary for the present purpose to state the following :

3.Members of the T’ong are members from time to time of the To Ka Yi Tso (‘the Tso’) [陶嘉儀祖] and the To clan.  To Ka Yi was the focal ancestor of the To clan.  He died in 1454.  Members of the Tso and (by reason of common membership) the T’ong lived in five villages in Tuen Mun, namely, Nai Wai [坭圍], Tsing Tsuen Wai [青磚圍], Tuen Tsz Wai [屯子圍], Lam Tei Tsuen [藍地村] and Sun Tsuen [新村].

4.To Ka Yi had four sons : Chung Yan [松隱], Chung Yum also known as Fau Yung [松潤號浮翁], Chung Yau [松友] and Chung Mou [松茂].  The families of the four sons are known as the four fongs.  However, it appeared that the fourth fong had since become extinct.  The 2^nd, 3^rd and 4^th respondents are members of each of the senior, second and third fongs.

5.The T’ong did not have a manager for many years.  Following the decision of the Court of Final Appeal, on 27 April 2001 at the ancestral hall of the Tso, members of the Tso resolved that managers of the T’ong should be appointed from the three big fongs of the Tso with two representatives from each fong, making a total of six managers.  This meeting also resolved that a meeting would be held on 13 May 2001 and notice of the meeting would be given in the names of the managers of the Tso.  Each of the three fongs was requested to summon its own meeting to send two representatives to be appointed as the managers of the T’ong.  Their names would be submitted to the District Office for registration. 

6.At this meeting there was also a proposal that representatives from each of the five villages where the members resided would be elected as managers.  However, the resolution that was eventually adopted at this meeting was in respect of the one with two representatives from each of three fongs.

7.By a notice dated 5 May 2001, the 2^nd, 3^rd and 4^th respondents who were also the managers of the Tso called for a meeting of the Tso to be held on 13 May 2001 to discuss the appointment of two representatives from each of the three fongs as managers of the T’ong

8.A meeting was duly convened on 13 May 2001 attended by 39 members of the Tso and it was resolved that the then managers of the Tso i.e. the 2^nd, 3^rd and 4^th respondents would be appointed as the managers of the T’ong and their appointment would be registered with the Tuen Mun District Office.

9.It was further resolved at a meeting of the T’ong held on 12 August 2001 that the appointment of the three newly appointed managers would be registered with the Tuen Mun District Office.

10.On 26 August 2001 the 2^nd, 3^rd and 4^th respondents requested the District Officer to approve their appointment pursuant to section 15 of the NTO.

11.The District Officer upon receiving the application posted up notice inviting objections to the application by the 2^nd, 3^rd and 4^th respondents.

12.By a letter dated 22 November 2001 eleven members of the Tso and T’ong raised objections with the District Officer about the appointment.  Despite the invitation by the District Officer to meet these members they declined to do so. 

13.The District Officer by a letter dated 31 December 2001 replied to these members as follows :

'1.	Choice of the tso tong manager is appointed by the tso tong members, this office has no power to appoint the managers of Tsing Wan Kun you have suggested.
2.	The appointment of Mr. To Fook Tim, Mr. To Kan Chi, and Mr. To Kam Chau as the managers of Tsing Wan Kun were supported by the majority of the members of the Tsing Wan Kun, therefore this office respects the opinion of the majority of the members and approves them as the managers of Tsing Wan Kun.
3.	This office understands that the managers-elect will soon call for a Tsing Wan Kun meeting to discuss as to whether to increase the numbers of the Tsing Wan Kun managers.’

14.On 2 January 2002, the District Officer approved the appointment of the managers which led to the present challenge by the applicant who is a member of the T’ong.

15.The applicant had also commenced another action (High Court Action 1603 of 2004) on 8 July 2004 against the 2^nd, 3^rd and 4^th respondents challenging their appointment.  This action has not been yet tried.

Grounds of the Judicial Review

16.The present application was lodged on 2 April 2002.  The Notice of Application was substantially amended on 26 September 2003.

17.Under the heading of irrationality the following grounds were relied upon by the applicant in his application for judicial review :

1)	In approving the appointment of the managers, the District Officer failed to recognize that the managers were not properly appointed in that under Chinese law and custom of the To Clan or the T’ong the appointment of the managers must be made by the unanimous decisions of its members.
2)	The District Officer had failed to consider that the meeting of the T’ong held on 13th May 2001 (in which the purported appointment was made) was not a valid meeting.  Likewise he had failed to consider that the meeting of 12th August 2001 was also not a valid meeting.
3)	The District Officer had failed to consider the integrity and propriety of the managers.
4)	The District Officer had considered irrelevant matters namely the managers would hold another meeting to discuss the appointment of additional managers.
5)	The District Officer had failed to ascertain whether the Chinese Temples Committee established by the Chinese Temples Ordinance (Cap. 153) had approved of the vesting of the control of the assets of Tsing Wan Kun in the managers.

The decision of Tang J

18.At the hearing before Tang J the focus was on Ground 2, although the then counsel for the applicant Mr. Warren Chan S.C. also relied on Grounds 1 and 4.  He described Ground 2 as the major point while the other grounds as subsidiary or short points. 

19.The essence of Ground 2 is that the District Officer had failed to appreciate the important discrepancy between the notice of 5 May 2001 which called the meeting of 13 May 2001 and the resolution passed at that meeting.  The discrepancy was in respect of the proposal to appoint two representatives from each of the three fongs to be managers and the resolution at the meeting was to appoint three managers.  Tang J after reviewing the evidence, held that the Tso members would not regard the discrepancy as significant or that the discrepancy had rendered the decision of 13 May 2001 or 12 August 2001 unfair or the overall appointment process unfair.

20.As to Ground 1, Tang J held that on the evidence, the District Officer was entitled to conclude that the managers had been appointed by the T’ong and the appointment process was a fair one overall.  As to the criticism of the statement of the District Officer that ‘the appointment of a manager under section 15 does not correspond to any existing custom’, he held that ‘fairly read the District Officer was simply making the valid point that registered managers were creatures of the NTO and not Chinese custom’.

21.As to Ground 4, Tang J held that the District Officer was not trying to justify the approval by saying that there would be a proposed meeting to discuss the appointment of additional managers.

Grounds of Appeal

22.At this appeal the focus is somewhat shifted.  Mr. McDonnell Q.C. and Ms Jane Cruzon Lo who now represent the applicant advanced two grounds of appeal :

1)	The District Officer misdirected himself in the course of reaching his decision to approve the appointment of the three managers.  He asked himself the wrong question and that invalidated his decision, regardless of what the answer should have been if he had asked himself the right question.
2)	The District Officer had failed to consider procedural irregularity in respect of the notice of meetings and the decisions in the meetings.

The misdirection point

23.On the first point which I will call the misdirection point, reliance is placed by the applicant on the classic statement of Lord Diplock in Secretary of State for Education v. Tameside Metropolitan Borough Council [1977] AC 1014 :

‘ It was for the Secretary of State  (i.e. the authority whose decision is being challenged) to decide that (question).  It is not for any court of law to substitute its own opinion for his; but it is for a court of law to determine whether it has been established that in reaching his decision unfavourable to the Council he had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider: see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223, per Lord Greene M.R., at p.229.  Or, put more compendiously, the question for the Court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?’  (emphasis added)

24.In that case a newly-elected local education authority (‘the Authority’) resisted a direction by the Secretary of State made under statute requiring them to continue with a scheme by their predecessors for making all their schools comprehensive which the Secretary of State had approved but which the Authority had decided to postpone.

25.The House of Lords held that when exercising his statutory power to make a direction overriding the change of policy adopted by the Authority the right question for the Secretary of State was whether a reasonable Authority could implement the change without undue disruption.  The reasons given for his direction and his evidence in support of it showed that he had not considered the right question and his direction was therefore an invalid exercise of his own statutory power.

26.Mr. McDonnell stressed that although Lord Diplock referred to Wednesbury Corporation he was in the context relying on the first of Lord Greene’s two principles in that case which were :

'1.	The Court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account.
2.	Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.  In such a case, again, I think the court can interfere.’

(For ease of reading, I have put a number against each of the principles.)

27.The second principle of Lord Greene came to be known as the ‘Wednesbury principle’ which was not relied upon by the applicant in this case.

The affirmation of the District Officer

28.In support of this argument, Mr. McDonnell relied on the following statements made by the District Officer in his affirmation filed in opposition to the judicial review application :

‘ 3.	I am not aware of any general legal requirement that the appointment of a manager to represent a t’ong under section 15 of the New Territories Ordinance, Cap. 97 (“Section 15”) must have the unanimous support of all the members for the time being of the t’ong.
4.	As I understand it, the “manager” referred to under Section 15 is entirely a creature created by the legislature.  Such a statutory “manager” is to be distinguished from a “manager” appointed in the customary manner.  On this basis, I believe that the appointment, approval or registration of a manager under Section 15 does not correspond to any existing Chinese custom.’

Section 15 of the NTO

29.The T’ong held land from the Government under section 15 of the NTO, the T’ong

‘ ... 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...’

The authorities

30.Mr. McDonnell submitted what the District Officer said was contrary to the authorities.  The clearest statement on this topic was in Lai Chi Kok Arrestment Park Co. Ltd. v. Tsang Tin-sun [1965] HKLR 413, where Blair-Kerr J at first instance held that :

‘ Under that section (i.e. section 15 of NTO), a t’ong is required to appoint a manager to represent it.  The Ordinance does not prescribe the method of appointment; that is left to the custom of the t’ong; but they are required by law to report the fact of appointment to the Land Officer.  Registration is not automatic.  The Land Officer is given a fairly wide measure of discretion.  He may require further proof of the appointment; and he may not approve of the appointment—in which case he would, of course, refuse to register the name of the manager; but the section does not prescribe what steps he may take to satisfy himself that the manager has been duly appointed.  That is left to the Land Officer.  But, having satisfied himself of the fact of appointment, and if he approves of it, the Land Officer is required to register the manager’s name.’

31.Earlier in Li Tang Shi v. Li Wai Kwong & A.G. [1969] HKLR 367 at 382, Briggs J (as he then was) held that

‘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.’

32.Further the Report of the Working Group on the NTO dated April 1988 (‘the Report’), prepared by the Hong Kong Government stated at paragraph 1.18 that :

‘ The Group has concluded that in approving appointments of customary land trust managers, Land Officers have a duty to ensure that appointment by a traditional body of such managers has been made in accordance with the internal regulations of the CLT and with whatever agreement may be appropriate, according to the CLT’s established practice, from other existing managers. ’

33.The aim of the Report was to summarise, among other things, the customs and customary rights of the New Territories.

The position of the respondents

34.Objections had been taken by Mr. Yin (counsel for the District Officer) and Mr. Leong S.C. and Mr. Yip, (counsel for the 2^nd, 3^rd and 4^th respondents) that the applicant is raising a new case not previously dealt with in the proceedings below.  It was also said that the case now advanced does not come within the ambit of irrationality which was relied upon as the basis of the challenge by the applicant.

A new point?

35.Although in the Amended Notice of Application the focus was on the custom of unanimity in the election of managers, Mr. Warren Chan did in his written opening specifically referred to the statements of the District Officer and relied on the following matters in his Ground 1 attack :

'11.	Whether an appointment is valid must be determined in accordance with the relevant custom of the clan, family or tong.
12.	It was the case of the 3 Alleged Managers that they were appointed as managers of the Tong “in accordance with tradition and custom”.  Even according to the 3 Alleged Managers, custom is relevant in respect of appointment of managers of the Tong in the context of section 15 of the NTO.
13.	But the District Officer did not consider the custom of the Tong (which was relevant to the validity of the Purported Appointment).
14.	Also, the District Officer did not enquire whether the Purported Appointment was in accordance with such custom.
15.	Further, the District Officer went so far to conclude (contrary to the case put forward by the 3 Alleged Managers in their application letter) that “the appointment ...... of a manager under Section 15 does not correspond to any existing Chinese custom.’

36.Had the case of Tameside been cited at the court below, I have no doubt that, subject perhaps to the formality of further amendment to the Notice of Application, the judge would have allowed this point to be canvassed.  I am further of the view that this point can also be raised at this appeal because in the circumstances of the present case no substantial prejudice will be caused to the respondents.

The categorisation

37.As to the second objection, although the five grounds of challenge in the Notice of Application were grouped under the heading of irrationality, obviously this term must be considered in its context. Further although traditionally the challenge to the lawfulness of administrative decisions or subordinate legislations is grouped under the headings of illegality, procedural impropriety and irrationality, it is important to bear in mind what Lord Irvine of Lairg L.C. said about the categorisation in Boddington v. British Transport Police [1999] 2 AC 143 :

‘Categorisation of types of challenge assists in an orderly exposition of the principles underlying our developing public law.  But these are not watertight compartments because the various grounds for judicial review run together.  The exercise of a power for an improper purpose may involve taking irrelevant considerations into account, or ignoring relevant considerations; and either may lead to an irrational result.  The failure to grant a person affected by a decision a hearing, in breach of principles of procedural fairness, may result in a failure to take into account relevant considerations.’

The District Officer did not misdirect himself

38.However, what is more important for this appeal is that despite the extremely persuasive submission of Mr. McDonnell, I do not regard this point can avail the applicant in his attempt to quash the District Officer’s decision because my view is that the District Officer had not misdirected himself.

The statement in isolation

39.For the purpose of this case, the issue whether there is a distinction between a manager of a traditional Tso or T’ong in the New Territories and a manager which has been appointed and approved by the District Officer under section 15 of the NTO is not a matter we need to decide.  What has been challenged is the statement by the District Officer that because of this distinction (the words he used were ‘On this basis’), the appointment, approval or registration of a manager under section 15 ‘does not correspond to any existing Chinese custom’.

40.Looking at the matter in isolation, the statement by the District Officer was a bold one and was certainly capable of being construed as indicating a fundamental misunderstanding of his role in the approval of appointed managers.  Based on the existing authorities, the District Officer had to consider the internal regulations of the Tso or T’ong in deciding whether the managers were properly appointed or not, this clearly means that he had to consider the custom of the Tso or T’ong in the appointment of managers.  This point was accepted by Mr. Yin.  But if the District Officer had said that the appointment did not correspond with Chinese custom, it could be construed as meaning that he did not regard the custom of the Tso or T’ong on the appointment to be relevant at all.  This fits into the classic statement by Lord Diplock about the error of the decision maker who asked the wrong question.

41.Professor Dicks Q.C. in his opinion dated 5 April 2002 given in HCMP No. 509 of 2002 stated that :

‘5. As regards the appointment as the sze-lei or managers of the Tsing Wan Kun of the sze-lei of the To Ka Yi Tso, the provisions of the New Territories Ordinance and the administrative practice which has evolved in accordance with these provisions excludes the possible operation of Chinese law and custom and needs no comment.....  ’

Although this may seem to support the view of the District Officer, Professor Dicks did not elaborate on his statement.  As apparent from his opinion, his task was directed towards the question of whether the decision to withdraw funds from dedication to the Tsing Wun Kun complied with Chinese law and custom.  I do not regard Professor Dicks as saying that the custom of the Tso or T’ong on the appointment of manager is irrelevant.

The statement in its context

42.However, looking at the matter in its context, I do not regard the statement of the District Officer as betraying a fundamental misunderstanding of the application of the custom which would colour his approach in deciding whether the managers had been validly appointed or not.

43.First, the statement was made in response to the applicant’s challenge that when the District Officer stated that the appointment were supported by a majority of the members of the T’ong he had ignored the custom of unanimity.  The applicant had, however, decided at the hearing before Tang J not to adduce any evidence of that custom.  It was said by the applicant that this matter should be canvassed in the private law action against the managers.  Once this approach was taken, then in order for the applicant to avail himself of the Tameside principle he must show what other specific custom the District Officer had failed to consider.  This he had not done.

44.Further, in the other parts of his affirmation, the District Officer had clearly demonstrated that he understood the appointment should be in accordance with the custom of the T’ong.  At paragraph 8 he stated that,

‘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.’

This is clearly in accordance with the approach adopted in the authorities.

45.As to the procedure of appointment, the District Officers stated at paragraph 7 that :

‘In my experience, there is inherently a certain degree of flexibility in the procedure for the appointment of a manager 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.’

46.Again this tallies with paragraph 1.18 of the Report which stated that, in relation to the internal regulations of the Tsos in the appointment of managers, 

‘This raises immediate problems as, to our knowledge, written procedures for individual CLTs are extremely rare.  It is already clear that disputes can and do arise in such matters and, in the absence of an agreement between existing managers or members of a CLT, and without written rules, it is almost impossible for a Land Officer to come to a satisfactory conclusion.’

The steps taken by the District Officer

47.The steps taken by the District Officer after he received the application to approve the managers were also in accordance with the usual practice expected of his office.  Paragraph 3.50 of the Report stated that

‘It has been the consistent policy of the New Territories Administration (now C.N.T.A.) that Land Officers should establish to the best of their ability that a CLT’s proposal to appoint managers or deal in land are made in accordance with the internal working customs of that CLT, and with its members’ agreement.  The most fundamental requirements laid down by Land Officers are that the CLT must show evidence that a resolution to take the proposed action has been passed properly; that notices are posted to inform the public and that a period is allowed for receipt of objections.  Where there is an internal dispute, Land Officers usually send the managers away to sort it out among the members.’ 

48.When the District Officer considered the application for approval he had the notices of meetings of 5 May and 26 July 2001 and the minutes of the meetings of 13 May 2001.  He did not have the minutes of the meeting of 27 April 2001.  On the face of the minutes he possessed, the resolutions on the appointment of the managers and the application to seek his approval were met with the approval of all the members present.  There was no objection to these resolutions.

49.The District Officer then posted the notice inviting objections.  After receiving the objections, the District Officer further invited the objectors to a meeting which was declined by them.  These steps were consistent with the requirement that when considering the approval, the District Officer must ensure that the appointment was made in accordance with the custom or the internal regulation of the Tso or T’ong in question.  This further reinforces the view that the District Officer had not adopted the wrong approach despite what appeared to be a contradictory statement in paragraph 4 of his affirmation.

50.As to the evidence of the custom of the Tso on the appointment of managers, there was a clear statement from the managers that their appointment was in accordance with the custom of the To clan.  In the absence of contrary evidence from the objectors, the District Officer could not be faulted in not finding out what this custom was.

51.Further it is apparent from the objections that the main concern was with the ability and integrity of the managers.  Although they also referred to the historical facts that in 1906 the manager of the T’ong was not also one the managers of Tso and in 1914 the management of the T’ong was undertaken by the chief elder and fong elders of the To clan and that three persons were not able to manage the Tso and T’ong properly, the objections were silent about the custom or method of appointment of managers of the Tso and T’ong.  It certainly had not stated that dissent had been raised at the meetings on the approval of the managers.  There was nothing in the objections which may cause the District Officer to carry out further inquiry as to the custom of appointing managers in the Tso or T’ong.

52.All in all, on the facts of this case, I am satisfied that the District Officer had not failed to take relevant matters into account.  On the contrary, to use the words of Lord Diplock, he had asked himself the right question and had taken reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly.

53.It is a timely reminder that practitioners should ensure that the affidavit should only contain facts and not legal arguments.

The discrepancy point

54.As to the second ground of appeal, this is basically a repeat of the discrepancy point between the notice of meeting of 5 May 2001 and the resolution of the meeting of 13 May 2001 which Tang J. had already found against the applicant.  Mr. McDonnell abandoned the reliance on the failure by the managers to serve notice of the meetings on overseas members and infant members.

55.In my view, in the final analysis, Tang J. was obviously right when he said using commonsense the Tso members would not regard the discrepancy as significant or that it had rendered the decision of 13 May or 12 August 2001 unfair, or the overall appointment process unfair.

56.The notice of 5 May 2001 called the meeting of 13 May ‘for the discussion of appointing two representatives each from the senior, second and third fongs of managers of Tsing Wan Kun’ (商討由長二三房子孫派出兩名代表出任青雲觀司理).  Although at the meeting the members resolved to appoint the three managers of the Tso to be the managers of the T’ong as well, these managers were also members of each of the senior, second and third fongs.

57.The notice clearly drew the attention of the members who had read the notice that the meeting was for the appointment of managers.  The discrepancy point clearly would only be relevant to those who had read the notice.  The requirement that a notice should contain the specific matters that were intended to be transacted at the meeting was for the purpose of protecting those who had received the notice but had decided not to attend the meeting.  As Kekewich J said in Tiessen v. Henderson [1899] 1 Ch. 861

‘The man I am protecting is not the dissentient, but the absent shareholder—the man who is absent because, having received and with more or less care looked at this circular, he comes to the conclusion that on the whole he will not oppose the scheme, but leave it to the majority.  I cannot tell whether he would have left it to the majority of the meeting to decide if he had known the real facts.  He did not know the real facts; and, therefore, I think the resolution is not binding upon him.’

See also Young v. Ladies Imperial Club [1920] 2 KB 523 (meetings of unincorporated association) and La Compagnie de Mayville v. Whitley [1896] 1 Ch. 788.

58.In my view sufficient notice was given to the nature of the business to be transacted at the meeting of 13 May 2001.  If at this meeting the members decided that six managers would be too cumbersome to manage the T’ong and had instead decided on three managers (but still on the basis of equal representation from each of the fongs), I do not regard the resolution to be so radical a departure from the notice which required a fresh notice to be given.  After all the resolution was substantially along the lines of the notice of 5 May 2001.  The idea of having representatives from each of the three fongs to be managers was clearly to protect the interest of the members of the three fongs.  This was achieved by the resolution. 

59.Specifically in respect of the argument that the District Officer had failed to consider the discrepancy point when he received the objections, there was no indication in the objections that the 2^nd, 3^rd and 4^th respondents were not members of the three fongs or that a dispute had arisen as to whether the three fongs had called their own meetings to elect the representatives or that there was any challenge to the adequacy of the notice of meeting.

60.Further the District Officer had also considered the minutes of the meeting of 12 August 2001 where the appointment of the three managers was confirmed by the unanimous consent of the members present.  Although the notice of 26 July 2001 which called for this meeting did not include a resolution on managers, the importance of this meeting must be apparent to the members of the Tso and T’ong.  The notice was published in the local Chinese and English newspapers and it called for a meeting to implement the decision of the Court of Final Appeal.  As Tang J observed :

‘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’ongTsing Wan Kun may be from time to time determine”.’ 

61.With all this evidence, the decision of the District Officer to approve the appointment can hardly be characterized as being procedurally irregular or irrational.

Conclusion

62.Mr. McDonnell had mounted a detailed and spirited appeal for the applicant but at the end the facts of this case speak stronger than any legal argument that may be advanced on his behalf.

63.The appeal is accordingly dismissed with an order nisi that the costs of the appeal is to be borne by the applicant.

64.I would like to express my indebtedness to counsel for their assistance.

Hon Chu J :

65.I agree.

Hon Lam J : 

66.I agree.

Mr. John McDonnell, Q.C. and Ms Jane Cruzon Lo, instructed by Messrs Krishnan & Tsang, for the Applicant

Mr. Michael Yin, instructed by Department of Justice, for the 1^st Respondent

Mr. Alan Leong, S.C. and Mr. Francis Yip, instructed by Messrs Dominic Y. K. Lai & Co., for the 2^nd, 3^rd & 4^th Respondents