Cheung Man Yu v. Lau Yuen Ching and Others

HCMP2421/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2421 OF 2000

BETWEEN

Coram: Deputy High Court Judge L. Chan in Court

Date of Hearing: 24, 25, 26, 27, 28 April and 2, 3 May 2006

Date of Delivery of Judgment: 4 May 2006

J U D G M E N T

1.These proceedings were instituted for determination of whether or not an unincorporated entity called Lin Fat Tong (蓮發堂) (“the Tong”), which is the 4th respondent herein, is a public charity. 

2.The 1st to 3rd respondents further contend that there was not even such an entity in existence.

3.The applicant is a co-prioress of the Tong and the 2nd respondent is the other co-prioress.

4.I will briefly deal with the history of the Tong.  It is related to an organisation called Kik Lok Tung Benevolent Society (極樂洞善堂) (“the Society”) which operated somewhere in Shau Kei Wan off Yiu Tung Estate.  The Society was incorporated on 4 July 1964.  The first objects in the memorandum are to propagate Confucianism and to promote the teachings of the Four Books and Five Canons (四書五經) for the edification of men.  The next object is for promotion of vegetarianism and to provide a means of intercourse between persons professing vegetarian principles.  There are other objects for the advancement of general education for the orphans and the poor; establishing homes for the aged; promoting music and establishing libraries.  There is, however, no evidence of what the Society does or what it did prior to incorporation save and except that some people had been taught the learnings of Confucianism, Buddhism and Taoism at that place and that it would hold seminars.  There is also no evidence of who would attend the seminars save its disciples and followers.

5.There is some evidence that this Society worshipped Xin Tian Dao (先天道) or “The Way of Former Heaven”, a popular branch of Taoism in Hong Kong.  But the Society is not a famous Taoist society in Hong Kong.  It is less well known than other Taoist societies or temples like Wong Tai Sin Temple (黃大仙祠)，Fung Ying Seen Koon (蓬瀛仙館) or Tsing Chung Koon (青松觀).

6.Back in the 1930's, the Society had a female disciple named Cheung Oi.  She wanted to branch out from the Society and set up another place of worship in Tuen Mun.  On 10 September 1931, Cheung Oi and her elder brother, Cheung Tim, bought 10 lots of land in Tuen Mun at $650.  They further bid an adjacent piece of land from the government.  The total area of these lots was over 10,000 square feet.  The Cheungs then set about building a temple on these lots to worship Guan Shi Yin (觀世音) or Guan Yin (觀音).  The evidence shows that there was another woman named Wong Bo-yin who also took part in this task.  Madam Wong appeared to be the first prioress of this temple.

7.In order to build the temple there was a fund-raising event in the autumn of 1932.  Six donation books have been produced in relation to this event.  They all have a preface on the inside of the front covers.  The prefaces were worded more or less the same.  They praised Guan Yin for the miraculous deeds.  They further stated that though Guan Yin's grace had been bestowed on Hong Kong for long, however the hall for worshipping Guan Yin was not solemnly respectful.  It was thus desired to reform the past into the innovative.  Donations were thus sought from fellow gentlemen of the villages so that construction work could commence on an auspicious day.  If the task should bear fruit, that would stand as the gratitude of all living creatures to Guan Yin. 

8.Some of these books contain a pricelist after the preface for setting up different types of everlasting ancestral worshipping tablets (長生祿位)(“the ancestral tablets”).  Presumably it was for setting up the ancestral tablets in the temple to be built.

9.The donation books show that there were 203 donors who together donated $2,893.30.  It was a substantial sum at that time.  The Cheungs then obtained a building licence from the government on 24 October 1933 to erect a building on two of the lots.  They then entered into a building contract with two builders to erect a two storey building on the two lots at a cost of $3,300.  It appeared that in addition to the donation collected, another $400 was required to construct the temple.  There is no evidence on who paid this sum and I infer that it must have come from the Cheungs and/or Madam Wong.  The building contract gave the builders 40 days to complete the task and I assume that the building was ready by the end of 1933 or early 1934. 

10.After the building contract, there was a blank in the history of the Tong until 18 August 1960 when there was a Memorial registered in the Land Registry in Tuen Mun recording the succession by one Madam Lok Kwai to the lots and the building thereon from the Cheungs.

11.Cheung Tim had a son, Mr Cheung Kwun-hei, who was the applicant's father.  However, the lots were not given to Cheung Kwun-hei or any other successor of the Cheungs.  They were succeeded to by Madam Lok in her capacity as a disciple of the Cheungs.

12.There is no dispute that Madam Lok was the second prioress of the Temple after Madam Wong.  There is no evidence of whether Madam Cheung Oi had been a prioress of the Temple though she was a co-purchaser and co-owner of the lots.  Nevertheless she appeared to be a respected person therein.

13.On 5 August 1971, Madam Lok executed a conveyance on sale conveying the lots and the building thereon to one Madam Lau Hing-lin (“Lau”) and the 2nd respondent at the price of $99,677.  Lau was the third prioress of the Temple. 

14.According to the evidence of the applicant and the applicant's second witness, Madam Lau Tim-tai, there was no actual sale of the lots and the building.  Madam Lok at that time was terminally ill.  She was suffering from cancer.  She wanted to convey the lots to Lau and the 2nd respondent as the lots were for the use of the Tong.  Lau was to be made the next prioress and the 2nd respondent was Lau's disciple.  However, Madam Lok did not want to convey the lots to them as a gift as she had a brother, one Lok To, who was a gambler.  Madam Lok was afraid that her brother would claim the lots after her death.  She therefore conveyed the lots and the building under the pretext of a sale at the purported price of $99,677, which was never paid.  In fact, Lok To was the witness to the memorial of sale as registered with the Tuen Mun Land Registry.

15.After the conveyance of the lots to Lau and the 2nd respondent, Lau set about to construct another building on the lots to worship the Taoist goddess Tin Hau.  Donations were sought for this purpose in 1972.  Some 17 donation books have been produced.  Lau was named on the front covers of the books as the prioress of Lin Fat Tong.  These books are the oldest documentary evidence where the name Lin Fat Tong in Chinese can be seen in writing.

16.The front covers of these books had words printed thereon saying that the donations were sought for the renovation of the house for Guan Yin and for the construction of a new house for Tin Hau.  The inside of some of the front covers contain a pricelist for different types of ancestral tablets.  These books show that there were 1,361 donors who together donated $41,778.  The Tin Hau Temple was built in about 1972. 

17.The applicant said in evidence that when she went to the Tong in the 1950's, there was just a Guan Yin hall which was presumably the two-storey building constructed by the Cheungs.  There were a few old women living on the ground floor of the Guan Yin Hall.  Apart from the rooms for these old women, there was also a sitting room on this floor.  On the 1st floor were two rooms which were used by Lau and the 2nd respondent.  There was outside in the hall on this floor a shrine for worshipping Guan Yin.  On the right of the shrine were hung the ancestral tablets and on the left was for the worship of a Taoist god, General Guan Yunchang.  Outside the building was a shed which was used to cook vegetarian meals when there were many followers coming to the Tong during the festivals.  There was also an orchard and some vegetable fields.  Lau and the residents of the Tong used to grow vegetables in these fields.  The lots were enclosed by a sort of wall or fence with a wooden entrance.  There was a wooden plate bearing the name Lin Fat Yuen (蓮發園) (meaning Lin Fat Garden) hung on the entrance.

18.This place was thus used not just for worshipping Guan Yin, it was also used for keeping the ancestral tablets and as a residence for the prioress, her disciples and a few old women who had been admitted to the Xin Tian Dao faith.  Save for the few festivals and celebrations for Guan Yin and the goddess Tin Hau, the first and fifteenth days of every lunar month and the Taoist festivals like the Ghost Festival in the Seventh Lunar Month when there would be many followers coming to the place, the Tong in the usual days was a quiet place.  There might be a few visitors coming every day, some for worshipping purpose and some to receive medical advice from Lau as she was also a Chinese herbalist doctor.  The place was just like a Taoist convent run by a prioress.

19.Before the Tin Hau Temple was built, there was some renovation to the Guan Yin Hall which was leaky.  At the same time, a small concrete building was constructed at the back of the hall to house the ancestral worshipping tablets.  There was also built next to this building another two-storey building.  Mr Lok To used to live in the ground floor of this building. 

20.The Tin Hau Temple was then built on the right of the Guan Yin Hall.  It was a two-storey building with a mezzanine floor.  The hall on the ground floor was for worshipping the Tin Hau goddess.  The applicant then moved to live in a room on the mezzanine floor and the 2nd respondent moved to live in a room on the 1st floor.  There were a number of guestrooms on these two floors.

21.The Tong then continued with its usual activities in what was a serene setting within the Lin Fat Garden.  But Tuen Mun was developing fast.  Soon the Garden had to make way for the development of Tuen Mun.  By a Deed of Surrender dated 23 March 1982, Lau and the 2nd respondent surrendered the lots and the buildings thereon to the government and received compensation in the sum of $9,124,448.  Lau then used $2.1 million to buy two adjacent three-storey village houses and moved the Tong over there.  The houses are Nos. 108 and 109, Terrace, No. 1, Wong Ka Wai, Tuen Mun. 

22.The ground floor of No. 108 has a sitting room, a storage room and a kitchen.  On the 1st floor are three rooms with one for the applicant, one for the 2nd respondent and one for Lau before she passed away in September 1999.  On the 2nd floor were the shrines for Guan Yin and the Buddha and the shrines for some Taoist gods, goddesses, the deceased prioresses and the old women who had lived in the Tong until they passed away.  The ground floor of No. 109 was used to keep the ancestral tablets.  There was also a sitting room.  On the 1st and 2nd floors were six guestrooms.  A lift was built in early 1999 inside No. 109 to facilitate the movement of Lau as she then had difficulty in taking the steps.

23.On 6 June 1994, Lau and the 2nd respondent made a deed of gift of the two houses unto themselves and the applicant as joint tenants.  The applicant was also a disciple of Lau.  In fact, the applicant's mother had given her to Madam Lok as Lok's daughter when she was 3 years old.  She was thus brought up by Lok and learned from Lau.  She was also designated a prioress.  She in fact was the first prioress of the Tong who was brought up and taught by the Tong.  All the former prioresses and the 2nd respondent received their learning from the Society. 

24.In about 1997, the 1st respondent was introduced by a relative of Lau to the Tong.  He later also became a disciple of Lau and earned her trust. 

25.Some time in 1998 or early 1999 when Lau was already in poor health, she told the applicant and the 2nd respondent to carry on working for the charities.  They were told to set up a limited company for this purpose.  Lau had joint-name bank accounts with the applicant as well as with the 2nd respondent.  The moneys in these accounts were to be used for such purpose.

26.The 3rd respondent was then owned by the 1st respondent.  The 1st respondent changed the name of the 3rd respondent to its present name and offered it for use by Lau to fulfil her intentions.  The shares of the 3rd respondent were divided by Lau as follows: 60 per cent to the 2nd respondent, 25 per cent to the applicant, 5 per cent to the 1st respondent and 10 per cent to one Madam Chung, another disciple of Lau who has been in the USA for years.

27.Lau and the 2nd respondent then transferred some $18 million from their joint account into the bank account of the 3rd respondent.  This bank account of the 3rd respondent at that time could only be operated by the applicant and the 2nd respondent.  Regarding the joint accounts in the names of Lau and the applicant, the total deposits therein slightly exceeded $1 million and nothing was transferred from these accounts into the account of the 3rd respondent. 

28.In September 1999, Lau was hospitalized in the Tuen Mun Hospital.  Two days before she passed away, she dictated her final wish to the applicant, which was for the 2nd respondent to make various payments to Lau's brother, sister, niece and two disciples.  She also directed the disposal of a few gold ornaments to her relatives and disciples.

29.The applicant and the 2nd respondent were also appointed co-prioresses of the Tong although there is no evidence as to when they were so appointed.  After Lau had passed away, the applicant and the respondent could not get along with each other.  They had a dispute on whether the ancestral tablets should be relocated to the Mainland.  Eventually there was an agreement that the tablets would stay in their present location.  There appeared to be a much more bitter dispute over the chequebook control.  It appeared to be Lau's idea that both the applicant and the 2nd respondent should have control over the use of the money as they were made the joint signatories of the bank account of the 3rd respondent.  However, the evidence of the applicant showed that the 2nd respondent wanted the applicant to sign the cheques as and when the 2nd respondent desired and the 2nd respondent had refused to tell the applicant how much money was to be withdrawn and for what purpose.  The applicant, however, was unwilling to be a rubber stamp at the 2nd respondent's whim.  They appeared to have quarrels over this. 

30.There were at that time three directors on the board of the 3rd respondent, namely the applicant and the 1st and 2nd respondents.  Eventually the 1st and 2nd respondent, in a board meeting held on 31 January 2000, changed the signature mandate of the 3rd respondent thereby permitting the 1st and 2nd respondents to jointly operate this account in addition to the previous arrangement.  On 25 February 2000, the money was withdrawn from this account and the applicant has no idea as to its whereabouts since then. 

31.If Lau had, by making the applicant and the 2nd respondent the joint signatories, intended that the money should be under their joint control so that it could be used to perpetrate the good work of the Tong, her wish might not be fulfilled.  It could have been fulfilled if the bank account was in the joint names of the applicant and the 2nd respondent.  However, it was in the name of the 3rd respondent and the signature mandate was subject to the will of the board. 

32.Lau's ignorance of the company law has indeed generated these proceedings.  After the 2nd respondent, with the help of the 1st respondent, had moved the money elsewhere, the applicant started these proceedings under section 57A of the Trustee Ordinance.  Section 57A provides:

“57A. Without prejudice to the generality of sections 56 and 57, the court may provide such relief, make such order, or give such direction, as it thinks just relating to a charitable trust upon an application made to it-

(a)  by-

(i)   2 or more persons who have the consent in writing of the Secretary for Justice to make the application;
(ii)  the Secretary for Justice; or

(iii) all or any one or more of the trustees or persons administering the trust, or persons claiming to administer the trust, or persons otherwise interested in the trust; and (Amended L.N. 362 of 1997)

(b) either-

(i)  complaining of a breach of the trust or supposed breach of the trust; or

(ii) for the purposes of the better administration of the trust.”

33.The applicant seeks a determination that the Tong is a public charity.  If the court should so determine, she would ask for a scheme for the better administration of this charity and orders for the removal of the 1st and 2nd respondents as trustees.  Since the applicant regarded the money put into the account of the 3rd respondent as the Tong's money, she would also seek orders for the return of such money and an account of the profits made with the use of such money.

The absence of the Secretary for Justice

34.Since the primary purpose of these proceedings is to determine whether the Tong is a public charity, the Secretary for Justice has been joined as the 5th respondent.  However, the Secretary declined to take any part in this hearing.  The Secretary is only willing to take part if the Tong should be determined a public charity.  Since the Secretary has declined to take part in this hearing, I should have dismissed these proceedings instead of allowing the applicant to continue.  On this point I refer to Ip Cheung Kwok v Ip Siu Bun and Ors [1988] 2 HKLR 247 where Godfrey J said, at 250 D to G:

“I dispensed also with the attendance of counsel for the Attorney General when he indicated that he was not prepared to argue that any of the properties were held upon charitable trusts. The fourth defendant should not, in my judgment, have attempted in these circumstances to shoulder the burden of an argument in favour of the court's declaring that the trusts upon which the properties, or one or some of them, are held were charitable trusts. The Attorney General is the only person who can represent the general body of beneficiaries under a charitable trust (see Tudor, Charities, 7th ed., 1984, at p. 337; Ware v. Cumberledge (1855) 20 Beav 503, per Romilly, M.R. at 511; re King [1917] 2 Ch 420; and most recently Hauxwell v. Barton-upon-Humber UDC [1974] Ch 432, in which Brightman, J. said (at p. 450) that he was able to discern nothing in the cases cited to him to indicate that anyone save the Attorney General was entitled to maintain an action to establish the existence of a charitable trust. I would therefore hold that it is not open to me in these proceedings to find that any of these properties are held upon charitable trusts, in the teeth of the refusal of the Attorney General, the proper party to represent the interest of charity, so to argue.”

35.Mr Chong for the applicant argued that I should not follow Godfrey J as the legal position referred to by the learned judge was governed by the Charities Act of 1993 of England whilst Hong Kong is only governed by the Charities Act 1812.  I do not think Mr Chong is right as some of the authorities that Godfrey J referred to were decided before the Charities Act 1993 or the Charities Act 1960 had come into being.  I also refer to Tudor on Charities, 9th edition, at paragraph 10-39:

“In Ware v Cumberledge, Sir John Romilly M.R. laid down the following rules for the purpose of determining when the Attorney-General is or is not a necessary party to proceedings relative to the administration of the estates of testators who have given charitable legacies:

“The Attorney-General represents all absent charities, and it is sufficient to have him here to represent all absent charities.  But absent charities may obviously be of two different characters: they may either be under gifts to specified individual charities, or to charity generally.  In case the gift is for charity generally, no one can represent it but the Attorney-General, and he must be here to represent such general charities.  When there are specified individual charities, then the Attorney-General's presence is not universally necessary; but it is required by the court upon various occasions, as, for instance, where any rules are required for the regulation of the internal conduct of the charity itself, such as the establishment of a scheme and the like; there the Attorney-General is necessary for the purpose of aiding and assisting the court in directing and sanctioning the general system and principle that ought to govern charities of those descriptions.  But there are other cases where there is no question as to the conduct of management of the charities, but only whether the charity is entitled to a particular legacy or not.  In those cases the Attorney-General is rather in the nature of a trustee for those charities, and the court prefers having before it the charities beneficially interested, for the purpose of putting their interests before the court in the light which they consider most favourable to them.  In those cases, I think it preferable that the charity itself should appear rather than the Attorney-General should represent it.””

36.I take the view that the contention made here is that the Tong is a public charity in general and I think the Secretary for Justice should take part.  However, I would also follow the footsteps of Godfrey J and consider the merits of the applicant's arguments in case I were wrong on this.  I also note that the Secretary for Justice seemed to have taken the stance that his absence would not prevent me from proceeding to hear and determine this issue.

Does the Tong exist?

37.Mr Chain argued that there is no such entity as Lin Fat Tong.  He submitted that this is only a name used by Lau and Lau was Lin Fat Tong and Lin Fat Tong was Lau.  If that is the case, then Lin Fat Tong should have gone to heaven together with Lau.  But I accept the evidence of PW2, Madam Lau Tim Tai.  Her mother was Madam Lok's sister by deed and her father was Lau's cousin.  She had frequented the Tong since the 1950's when it was still operating at the old address.  She had to ask the villagers there for the way to Lin Fat Tong and was told the way to get there.  She saw the name, “Lin Fat Yuen”, on the wooden plate hung on the wooden entrance.  She also saw the name “Lin Fat Tong” when she entered the building.  She was a straightforward witness in answering questions.  She did not exaggerate the public element of the Tong.  I accept her evidence that there was the Tong back in the 1950's, long before Lau was made a prioress.

38.PW2's evidence was supported by the evidence of the applicant, of which I also accept.  The applicant said that the name “Lin Fat Tong” was used by Madam Lok as she was very pleased with the joining of Lau at the Tong because Lau was an educated person who was also knowledgeable on how to make a living by ploughing the fields.  Hence Madam Lok coined the name “Lin Fat Tong” as “Lin” is a character in Lau's full name.

Is Lin Fat Tong a public charity?

39.Mr Chong relied heavily on the donations in 1932 and 1972.  He said these were moneys donated by the public for the construction of temples for the public to worship.  There is, however, no evidence on who were the donors and why did they donate.  Some donation books show a number of donors of the same surname.  They might well be villagers of the same village and hence related to each other.  They might have been told that the donations were for the construction of a Taoist vegetarian hall which would have Guan Yin as the primary subject of worship.  There is of course no evidence on this and I would not so find.  However, the Guan Yin Temple, as described by the applicant, appeared more like a Taoist vegetarian hall than a temple that we usually come across.

40.I, of course, would not rule out the possibility of the building being treated as a temple by the followers of the Tong.  But in any case, there is no evidence that the money had come from members of the public rather than from the followers of the Cheungs and Wong, the relatives and friends of these followers and some villagers living in nearby villages.  I do not accept that the building put up in 1933 was with public donation. 

41.The same applied to the donations in 1972.  PW2 in fact took part in this event.  She had only asked her relatives and friends for donations and had not asked any stranger for the same.  Such donations were not from members of the public.  Furthermore, with the pricelists for ancestral tablets written on the inside of the front covers of some of the donation books, I find it difficult to tell which donation was indeed a donation and which was for buying an ancestral tablet.

42.Mr Chong then relied on the works and activities of the prioress and her disciples.  They chant sutra for their followers and their relatives every morning and evening; they assist people to be admitted into the Dao (道) or “The Way”; they conduct rituals and ceremonies for their followers and their relatives and those who were introduced to the Tong for such purposes; they chant sutra for and with their followers to change their luck and make offerings to the dead; they maintain ancestral tablets for others; they host vegetarian meals during the Guan Yin and Tin Hau festivals and also on the first and fifteenth days of each lunar month.  At the best of times, the number of followers was over 400 or, according to PW2, at 500 to 600. 

43.However, all of the activities were done to or with those who were familiar to the Tong or those introduced by the familiar ones.  I accept that a total stranger who wanted to come for a vegetarian meal would not be turned away, but an unfamiliar female Taoist might not be allowed to stay there for the night.

44.The more important point is that neither the prioress nor her disciples would reach out to the public to spread their faith or Dao or perform other charitable work.  When seminars were conducted, they were only for the followers of the Tong.  The seminars were never advertised by circulars, posters or any other means that would reach the public.  I think the work of the Tong was limited to its followers and its followers came by way of introduction.  There is no evidence that anyone from the Tong would reach out to the public to spread the faith or to gather followers from the public.

45.Mr. Chong has also mentioned about the medical service provided by Lau to her patients.  However, I do not think that that could turn the Tong into a public charity.  There is no evidence that she had offered her service to the public or she had advertised such service by any means.  The evidence was that those who came to her for the service included some villagers and some people coming in from Kowloon.  These people might well be her followers.

46.I now deal with Lau's handling of the Tong's property.  Both the applicant and PW2 regarded Lau as an upright and honest person who would not mix up her own assets with those of the Tong.  In fact, she would apply her own assets to subsidise the operation of the Tong.  However, there is no account of any sort detailing the assets of the Tong.  For a person who owns assets in his own right, it is not necessary for him to keep an account of what he owns though he may do so to facilitate his own purposes.  However, if a person is holding properties for another entity as a trustee, he or she should keep an account of these properties.  This is just common sense as such an account can facilitate the accounting by this trustee to the beneficial owner.

47.I have no doubt that Lau is an honest person.  I believe that she treated everything under her name as the Tong's property.  Thus the bank account which contained over $18 million (which derived from the balance of the land resumption compensation), the other bank accounts, the title to the two buildings in Wong Ka Wai and the title to a property in the USA are all in her name jointly with her disciples.  She did so obviously for passing of the Tong's property from one prioress to the next.  There was thus no detail account of the Tong's assets.  In fact, before the resumption of the old address, the Tong had to rely on Lau's income from ploughing the fields and her Chinese medical practice because the incense offerings from the followers were fairly modest.  The yearly total of the offerings were more or less around $10,000 only. 

48.Though she treated the assets as belonging to the Tong and made joint names arrangements for passing on the assets to the next co-prioresses, she directed the distribution of about half a million dollars to a few relatives and disciples shortly before she died.  The applicant and those disciples who were there at her death did not find the distribution objectionable at all.  I think this is quite understandable as Lau had devoted her life for the Tong.  If she should take out a small portion of the Tong's assets for the maintenance of a few elderly persons, it would be surprising if her disciples should object.  In fact, after distributing that half a million dollars, there was still at least $18 million in the account of the 3rd respondent and another million in the accounts in the joint names of her and the applicant.  Furthermore, the evidence suggests that Lau's relatives were very close to the Tong as well and there was all the more reason for the disciples to willingly carry out Lau's final wishes. 

49.I also mention that I would not accept that this half a million was Lau's personal asset.  If the incense offerings were so meagre, the laisee money given to her for her medical advice and the money gifts she received on her birthdays would not be very generous.  I think she would not have much money left after subsidising the Tong's outgoings.  She of course kept all the moneys together and treated them as assets of the Tong. 

50.On the donation books and expenditure books, I think the records in the donation books were to give recognition to the donors and perhaps to keep track of who has paid how much for a particular type of ancestral tablet.  Regarding the expenditure books, some of them obviously were for payment to the 2nd respondent and another disciple, Siu Kwai Ying for the work they did in the vegetable fields, because payment to Siu stopped after Siu had refused to work in the fields anymore.  Some were to record the construction works done from time to time.

51.Mr Chain said that some loans were advanced by Lau to the followers and no one would do so with charities' money.  I would rather think that Lau, being an honest and devoted Taoist, would have been prepared to advance the Tong's money to the Tong's followers.  This would not be surprising if this Tong was a fairly private and closely-knit organisation rather than a public organisation.

52.One more factor that militates against my finding that the Tong is a public charity is the 2nd respondent's inability to read.  She in fact is illiterate.  I cannot imagine that Lau would have appointed the 2nd respondent as a co-prioress for whatever purpose if the Tong should be a public charity.

53.The Court of Final Appeal in The Secretary of Justice v. To Kan Chi and Others [2000] 3 HKLRD 756 at 762 identified four types of temple ownership.  They are:

“(1) ownership by all the people of the relevant faith in the case of a temple amounting to a large monastery containing a large number of monks;

(2) ownership by the body of clergy residing in a hereditary private temple and forming a pseudo-family there;

(3) ownership by an individual, clan, family or t'ong (remembering that a t'ong may include a tso) of a private temple; and

(4) ownership by the inhabitants of a geographical area of a temple without resident clergy established for the benefit of the inhabitants of that area.”

54.The applicant's expert agreed with this.  On the evidence, I find that the Tong does not belong to the first or fourth categories.  I think the Tong may be something between the second and third categories in that all the assets of a Tong are held by the prioress on trust for the Tong and the Tong being a perpetual entity.  This is similar to other ancestral worshipping Tsos and Tongs commonly found in the New Territories.  I, however, have no expert or clear-cut evidence on this and I refrain from making this finding.

55.Since I have found that the Tong is neither of the first nor of the fourth categories of temple ownership, I should determine that the Tong is not a public charity.  I also repeat a statement of the Court of Appeal in To Kan Chi and Others v Pui Man Yau and Others CACV32/99:

“The fact that Tsing Wan Kun was a temple for the advancement of religion or it was set up, undoubtedly, for religious purposes, does not ipso facto make the temple subject to a charitable trust.”

I say the same here regarding the Tong. 

56.Just to dispose of two minor points raised by Mr Chain, I also find that there is no evidence that the Cheungs, whether in collaboration with Madam Wong or otherwise, had constituted the Tong a public charity or that they had settled the lots for a charitable trust. 

Costs

(Submissions by Mr Chain on costs)

57.Mr Chong is not here.  I would prefer to make an order nisi and my order is simply no order as to costs.

Mr K.M. Chong and Mr. Michael Yen, instructed by Messrs Ho & Partners, for the Applicant

Mr Benjamin Chain and Ms Elmis Chiu, instructed by Messrs Louis K.Y. Pau & Co., for the 1st, 2nd and 3rd Respondents

5th Respondent, absent