Cheung Man Yu v. Lau Yuen Ching and Others

CACV 213/2006 & CACV 265/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 213 AND 265 OF 2006

(ON APPEAL FROM HCMP NO. 2421 OF 2000)

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BETWEEN

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Before : Hon Tang VP, Cheung JA and A Cheung J in Court

Date of Hearing : 20 July 2007

Date of Decision : 20 July 2007

Date of Reasons for Decision : 24 July 2007

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REASONS FOR DECISION

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Hon Tang VP (giving the judgment of the court):

1.The 1^st question we have to deal with is whether the appeal is as of right.  That would turn on whether para. (a) of the claim in the originating summons falls within section 22(1)(a) of Hong Kong Court of Final Appeal Ordinance, Cap. 484.  Claim (a) reads as follows:

“	(a)	That the 1st, 2nd and 3rd Respondents (and in the case of the 3rd Respondent, by the 1st Respondent, its director) and each of them do forthwith:-
		(i)	disclose in an affirmation, the whereabouts of the money and fund which had been deposited on or before 31st March 2000 with the bank accounts set out in the Schedule hereof (hereinafter called the said bank accounts); and
		(ii)	deposit with the Registrar of this Court all money which had previously been deposited with the said bank accounts on or before 31st March 2000 together with any interest thereon accrued.”

2.The substance of the dispute between the parties was over the locus standi of the applicant and whether the 4^th respondent was a public charity.  That dispute did not fall within the 1^st limb of section 22(1)(a) as explained by the Appeal Committee of the Court of Final Appeal by Chao Keh-lung v Dong Xia [2004] 7 HKCFAR 260.

3.Nor do we believe it fell within the 2^nd limb of section 22(1)(a).

4.We agree with Mr Chong that the action was about the proper administration of the charitable trust (hence whether or not there was a charitable trust) with consequential orders such as return of trust money and discovery.  The respondent chose to contest the claim on technical grounds.  Those technical grounds having been decided against them, the administrative and discovery order followed automatically.

5.We turn to consider whether a question of great general or public importance is involved in our judgment.

6.The questions relied on by the 2^nd and 3^rd respondents are:

“	(a)	whether a private individual who is neither asserting any private rights over not [sic] doing so to protect his/her private rights, has the locus standi to assert that, properties are held on charitable trust when the Secretary of Justice does not support the same,
	(b)	whether the Court of Appeal was correct in not following and/or distinguishing the earlier Court of Appeal decision in Ip Cheung Kwok v. Ip Siu-bun and others [1994] 2 HKLR 499,
	(c)	whether in the absence of any direct evidence the Court of Appeal was entitled to substitute its view to that of the trial judge and to hold that a private temple established by one or more individuals without any rules or regulations must necessarily be a charity by assuming that all its purposes must be charitable, and all other purposes are only ancillary, and
	(d)	insofar as the Court of Appeal has implicitly held that Lin Fat Tong was a place of public worship (as distinct from a private temple), whether that is possible as a matter of law as laid down by the Court of Final Appeal in Secretary of Justice v. To Kan Chi and others [2000] 3 HKLRD 756.”

7.(a) and (b) are essentially the same question; namely, whether the appellant has locus standi and whether Ip Cheung-kwok had decided otherwise.  We have dealt with these questions in our judgment at paras. 92 to 94.  We do not believe any question of great general or public importance is involved here.  Indeed as recorded in para. 92 of the judgment, Ip Cheung-kwok is authority that a trustee is entitled to contend that property was held on charitable trusts if he was doing so to protect the interest of the trust against a third party.  The third party would include a fellow trustee.  Mr Chain himself accepted that if there was a dispute over the houses, which were “registered in the names of the applicant, the 2^nd respondent and Lau Hing-lin, the applicant would have locus standi to contend against, say the 2^nd respondent that the houses are held on a charitable trust, rather than by them beneficially”.

8.As for (c), that cannot be a question of great general or public importance, the basis upon which this court can overrule a trial judge’s finding of questions of mixed law and fact is well established.

9.Lastly (d), it is said that insofar as we have implicitly held that Lin Fat Tong was a place of public worship (as distinct from a private temple) that raised the question whether that was possible as a matter of law as laid down by the Court of Final Appeal in Secretary of Justice v To Kan Chi and Others [2000] 3 HKCFAR 481.

10.This is what we said in para. 42 of our judgment:

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42.

… But ownership is not confined to the four types mentioned by the learned judge. …”.

Then, we referred to the judgment of Bokhary and Chan PJJ in To Kan Chi at 488H.

11.This is what their Lordships said:

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21.

… we would emphasise that the question is not whether the traditional types of temple ownership are confined to the four types mentioned above. We are not called upon to decide that. …”

12.So no question of any inconsistency arises.  Nor is this a question of great general or public importance.

13.Lastly, we turn to deal with Mr Chong’s point that we should decline to hear the application because each of the 1^st to 3^rd respondents has failed to comply with our order.  In Anthony Eric Ryan Hotung v Ho Yuen Ki, CACV 178 of 2006, unreported, dated 10 July 2007, this court (Cheung, Yuen JJA and Yam J)  had occasion to deal with a similar question.  For the reasons given, with which we agree with respect, that since the respondents are seeking leave to appeal from the judgment which they have not performed, we would not, for this reason alone, refuse to deal with the application.

14.Mr Leslie Parry who appeared for the 1^st respondent, asked for an adjournment because the 1^st respondent only became separately represented recently.  We refused an adjournment.  In the event, Mr Parry did not make any independent submission.

15.For the above reasons we refused leave to appeal.  We also made an order for costs in favour of the applicant save that in the event of the respondents or any of them obtaining leave to appeal from the Court of Final Appeal, the costs of that respondent’s application before this court shall be in the cause of the appeal.

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

Mr Leslie Parry, instructed by Messrs Au & Associates, for the 1^st Respondent.

Mr Benjamin Chain, instructed by Messrs Louis K.Y. Pau & Co., for the 2^nd and 3^rd Respondents.