Mum Kem Ying v. 柯智瀧及另一人
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HCMP 484/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDIGS NO. 484 OF 2006 ------------------------------
BETWEEN
------------------------------ Before : Recorder Rimsky Yuen, S.C. in Court Date of Hearing : 9, 10 and 11 May 2007 Date of Judgment : 19 February 2008 ------------------------------ J U D G M E N T ------------------------------ 1.This is a dispute amongst the members of the Chin Woo Athletic Association of Hong Kong Limited ( 香港精武體育會有限公司 )(“Chin Woo”). The key differences between the parties concern the election of committee members and officers. Chin Woo 2.Chin Woo was incorporated in Hong Kong as a company limited by guarantee on 25 September 1965. As stated in its Memorandum of Association, one of the main objects of Chin Woo is to promote Chinese boxing and physical culture as well as to advance the welfare of its members. The other objects are worthy charitable, educational or recreational causes. 3.The activities of Chin Woo were at all material times governed by its Articles of Association as amended in 1976 (“AoA”). Both the English and Chinese versions of the AoA have been exhibited to the affirmations filed in these proceedings as well as produced as exhibits D1 and D2. There was no real dispute as to the proper interpretation of the relevant provisions in the AoA. Instead, the dispute focused on whether the applicable Articles had been followed. 4.According to the AoA, Chin Woo has 3 different types of members: life members, ordinary members and student members. Subject to Article 9, all members of Chin Woo (with the exception of student members) are entitled to attend and vote at any general meeting and to elect the officers of Chin Woo as well as to be elected as an officer of Chin Woo and to its Committee and Standing Committee (see Article 6(a) and (b) of the AoA). Article 9 of the AoA provides that any member who is indebted to Chin Woo for any fees or for any sum or money shall have no right to attend any meeting or to elect or to be elected as member of the Committee (董事會) or the Standing Committee (常務董事會). 5.The Committee and the Standing Committee are the two bodies responsible for the management of Chin Woo’s affairs. The Committee shall have not less than 55 but not more than 101 members and shall be responsible for managing Chin Woo’s business including its money and properties (Article 23(a) and (b) of the AoA). On the other hand, the Standing Committee shall be responsible for the control and management of all matters and affairs of Chin Woo (Article 25(f) of the AoA). The Committee shall hold one meeting in two months, whereas the Standing Committee shall hold at least one meeting each month (Article 26 of the AoA). 6.The Article most relevant to the present dispute is Article 22, which provides as follows:
7.The main plank of the Plaintiff’s case rests on Article 22(e) of the AoA. Its interpretation and effect are not in dispute. The election contemplated in Article 22(e) has to take place in stages. First, the members representatives shall elect the Committee (i.e. not less than 55 Committee members but not more than 101 Committee members). Second, the Committee members, after being elected, shall proceed to elect the chairman, vice-chairmen and the other officers. In other words, the members representatives cannot proceed to elect the chairman and the other officers without first electing the Committee members. It is the Plaintiff’s case that the election that took place in 2005 did not follow the procedure laid down in Article 22(e) of the AoA. The Protagonists 8.The Plaintiff and the 1st Defendant are two of the protagonists in these proceedings. The Plaintiff, a housewife, has been a member of Chin Woo for many years. She was also the vice-president of the Committee of the 19th session of Chin Woo. The 1st Defendant, a karate instructor, has been a member of Chin Woo since around 1976. Further, he has been elected as chairman of the various sessions of election committee since around 1996. 9.Apart from the Plaintiff and the 1st Defendant, the other persons who had also filed affirmations and testified in these proceedings are Kwok Pui Kai (“Kwok”), Man Tze Chiu (“Man”) and Chiu Pui Lo (“Chui”). Kwok was the President of the Committee of the 19th session of Chin Woo. Man is a relative of the Plaintiff and has been a life member of Chin Woo since around 1995. Shortly after he joined Chin Woo, he has been a Committee member. Chiu joined Chin Woo since around 1966 and has been a Committee member since around 1995. The Dispute 10.A meeting, chaired by the 1st Defendant, was held on 17 June 2005. At this meeting, 25 members of Chin Woo including the Plaintiff and the 1st Defendant were elected as members representatives. They constituted the election committee, known as the 20th Member Representatives Election Committee (“Election Committee”), which was responsible for the election of committee members of the 20thsession of Chin Woo. The 1st Defendant was the chairman of this Election Committee. The names of these 25 members representatives are set out in the Notice No. 2005.2 dated 20 June 2005 issued by the secretariat of Chin Woo. There is no dispute as to the composition or legitimacy of this Election Committee. 11.On 8 July 2005, the 1st Defendant convened the first meeting of the Election Committee. During this meeting, the 1st Defendant proposed to elect a number of persons to serve as the chairman and other officers of the 20th session of Chin Woo. According to the 1st Defendant, he conducted this meeting in this way because he understood that to be the election practice adopted over the years. A 鍾振昇 was elected as the president. The 1st Defendant and 9 other members representatives were elected as vice-presidents, whilst 4 members representatives were elected as chairmen. Due to the constraint of time, election of other officers was adjourned to the next meeting to be held on 15 July 2005. The minutes of this meeting was taken by 梁咏華, who is a staff of Chin Woo. 12.According to the 1st Defendant, he was subsequently informed by various members representatives that the election procedure adopted on 8 July 2005 did not comply with the AoA. The 1st Defendant then sought legal advice from Chun Pui Lam (“Chun”), who was Chin Woo’s legal consultant. The 1st Defendant was advised by Chun that Chin Woo’s Articles of Association were amended in 1976 and that, under the AoA, the chairman and other officers of the Committee should be elected by the Committee members and not by the members representatives. As a result of Chun’s advice, the 1st Defendant came to realize that the election procedure adopted at the meeting on 8 July 2005 was invalid. Indeed, the parties have no dispute over the invalidity of the procedure adopted at the meeting held on 8 July 2005. 13.On 15 July 2005, the 1st Defendant convened the second meeting of the Election Committee. The parties’ evidence as to what happened at this meeting differs. 14.According to the affirmations filed by the Plaintiff, the meeting on 15 July 2005 took place as follows. At the beginning of this meeting, the 1st Defendant raised the issue concerning the invalidity of the election procedure adopted at the meeting of 8 July 2005. He proposed to start all over again but 4 members representatives disagreed and left the meeting abruptly. The members representatives who remained continued to discuss the candidates to be elected as Committee members. However, all the remaining members representatives except the 1st Defendant questioned the eligibility of the candidates because most if not all of them had not paid up the overdue fees owed to Chin Woo and that some of the candidates had yet to come up with the funds they undertook to pay for sponsoring Chin Woo. As stated above, Article 9 of the AoA provides that any member who is indebted to Chin Woo shall not be entitled to elect or be elected as member of the Committee or the Standing Committee. It is the Plaintiff’s case that the general consensus amongst the members representatives present at the meeting was that Chung, Chin Woo’s legal adviser, should be consulted on this matter. With the exception of the posts of Secretary and Treasurer, it is the Plaintiff’s case that there was no election of the Committee members. As it is not in dispute that the election of Secretary and Treasurer at this meeting was also invalid, it is the Plaintiff’s case that there was no election of Committee members and thus the Committee had not been constituted at this meeting. 15.The Defendants disputed the Plaintiff’s version as to what happened at the meeting on 15 July 2005, especially the latter part of the meeting. According to the Defendants, the 1st Defendant raised the issue regarding the invalidity of the election procedure adopted at the meeting on 8 July 2005. Two contrary views were expressed by the members representatives and the 1st Defendant agreed with the view that the election held at the meeting on 8 July 2005 was invalid. After 4 members representatives left the meeting, the 1st Defendant continued with the meeting and proceeded with the election of Committee members. According to the Defendants, there was no consensus as to whether those candidates who had not paid up their overdue fees could or could not stand for election as Committee members. Instead, all the members of the Committee of the 19th session, with the exception of 余曉帆, were elected to continue as Committee members of the 20th session. Hence, it is the Defendants’ case that the Committee of the 20th session was properly elected and constituted at the meeting held on 15 July 2005. The Defendants also rely on the minutes of this meeting, which was also taken and prepared by the same staff (梁咏華) of Chin Woo. 16.Subsequent to the second July meeting, there was a dinner meeting in mid-August 2005 between the 1st Defendant and a number of other members of Chin Woo, namely, 廖國存, 鍾振昇, 馮子才, 黃少舫, 李錦榮, 馮銳堅, 文子超 and 陳金英. According to the 1st Defendant, a list of candidates (“August List”) to be elected as Committee members and officers was produced by 廖國存 although 廖國存 indicated that the matter was negotiable. The parties differ on the significance of the August List. The Defendants contended that the production of the August List showed that 廖國存 and his camp accepted that the Committee was already properly elected at the meeting on 15 July 2005, whereas the Plaintiff argued the contrary. 17.The next relevant events took place in September 2005. First, there was the issue of a notice in Chinese dated 15 September 2005 by 16 members representatives of the Election Committee including the Plaintiff. In this notice, it was stated that the Committee was not yet clearly constituted. 18.This was followed by the notice in Chinese no. 051 dated 20 September 2005 (“Notice No. 051”) issued by the 1st Defendant to members of Chin Woo. In this Notice No. 051, the 1st Defendant gave an account of the events since late April 2005 to July 2005 including the 3 meetings discussed above. At the end of this Notice No. 051, the 1st Defendant stated that the Committee had been lawfully constituted. 19.On the same day (20 September 2005), the 1st Defendant issued a notice no. 052 in Chinese (“Notice No. 052”) whereby the 1st Defendant stated that the Committee members were elected at the meeting on 15 July 2005 and invited those elected members to fill in the reply slip to indicate whether they were willing to act as Committee members. 20.On the following day, the 1st Defendant issued a notice no. 053 in Chinese dated 21 September 2005 (“Notice No. 053”) informing the Committee members of the 20th session to attend a Committee meeting on 14 October 2005 for the purpose of electing the chairman and other officers of the Committee. It also stated that Chin Woo’s legal adviser, Chung, would also attend the meeting to oversee the election process. 21.These notices issued by the 1st Defendant were met by a declaration in Chinese dated 28 September 2005 issued in the name of 16 members representatives of the Election Committee (“MRs’ Declaration”). It stated that no consensus was reached on the election of the Committee members despite there were the meetings held on 8 and 15 July 2005. It also challenged the validity of the Notice Nos. 052 and 053 issued by the 1st Defendant. 22.Pursuant to Notice No. 053, the meeting was held on 14 October 2005 and was chaired by the 1st Defendant. The Plaintiff was one of those who attended this meeting. The parties’ versions as to what happened at this meeting again differ. 23.According to the Plaintiff’s affirmations, Chung advised those who were present at the meeting that the election held on 15 July 2005 was questionable, although he was not in a position to confirm the legitimacy of the election held on 15 July 2005 as he was did not attend that meeting. Notwithstanding vigorous protest by certain members representatives of the Election Committee, the 1st Defendant insisted to proceed with the meeting. The Plaintiff, together with others (including Chung) left the meeting before the 1st Defendant proceeded with the nomination and election. It is the Plaintiff’s case that the meeting on 14 October 2005 was attended by about 50 persons. Since about 10 to 20 members representatives left before the election commenced, there was no sufficient quorum and the election was thus invalid. 24.On the other hand, the Defendants’ version on the 14 October 2005 meeting can be summarized as follows. Chung, Chin Woo’s legal advisers, did attend the meeting for the purpose of giving legal advice. Chung sought confirmations from the people present at the meeting as to whether the Committee of the 20th session were elected on 15 July 2005 and the replies were affirmative. Chung then advised that pursuant to Article 22(e) of the AoA, only the Committee members were entitled to elect the chairman and other officers of the Committee. After giving the advice, Chung left the meeting as he had another appointment. The 1st Defendant proceeded with the meeting after Chung’s departure but 12 Committee members including the Plaintiff left the meeting. Notwithstanding their departure, the meeting continued and the election of chairman and other officers of the Committee were duly held. Kwok was elected as the president whilst the 1st Defendant was elected as the vice-president. The Defendants rely on the minutes of this meeting prepared by the same staff (梁咏華). Besides, the Defendants denied the Plaintiff’s allegation that there was no sufficient quorum when the election took place at this meeting. 25.It is against this background that the Plaintiff commenced these proceedings in March 2006. Apart from consequential directions and costs, the Plaintiff sought 4 declarations, namely:
1st and 2nd Declarations: Election of Committee Members 26.The Plaintiff’s claim for the 1st and 2nd Declarations can be dealt with together. Logically, the Plaintiff’s claim for the 2nd Declaration should be first considered. If some or all of the members were not entitled to be elected as Committee members as the Plaintiff contended, the constitution or legitimacy of the Committee of the 20th session would be open to challenge. 27.The Plaintiff’s case regarding the 2nd Declaration and the evidence adduced in support thereof are highly unsatisfactory. Taking the Plaintiff’s case at its highest, the question of whether those candidates who owed monies to Chin Woo were entitled to be elected was raised at the meeting on 15 July 2005 and that the general consensus was that Chung should be consulted. However, both the Plaintiff’s affirmations and her oral testimony in court did not specify the number or identities of the candidates who allegedly owed sums to Chin Woo. Nor did they specify what exactly were the sums owed (if any) by the candidates, viz., whether the sums allegedly owed were fees payable to Chin Woo (which would be a debt in law) or sums of sponsorship promised by the candidates (which, as the Plaintiff accepted during cross-examination, were voluntary payment and thus might not be a debt within the ambit of Article 9). In addition, when she was asked during cross-examination as to what happened at the meeting after this issue was raised, the Plaintiff said she could not recall. 28.On the other hand, there is the evidence of the 1st Defendant concerning unpaid sums. During cross-examination, the 1st Defendant stated that the practice was to allow members to make payment either by post-dated cheque or by instalment. This part of the 1st Defendant’s evidence was not challenged and it was not suggested by the Plaintiff that such a practice did not exist. 29.The documentary evidence also does not assist the Plaintiff. The minutes of the meeting held on 15 July 2005 prepared by a staff of Chin Woo was exhibited to the 1st Defendant’s affirmation and was read out to the Plaintiff during cross-examination. Although the Plaintiff said that she was scared and could not recall what happened at the meeting, she agreed that the minutes basically reflect what happened at the meeting. The minutes, however, do not support the Plaintiff’s case especially the allegations contained in paragraph 7(e) and (f) of the Plaintiff’s Affirmation filed on 11 March 2006. Further, neither the notice dated 15 September 2005 nor the MRs’ Declaration dated 28 September 2005 supported the Plaintiff’s claim for the 2nd Declaration. 30.The burden of proof rested with the Plaintiff. To succeed in her claim for the 2nd Declaration, it is necessary for the Plaintiff to prove on the balance of probabilities that some if not all of the candidates who were eventually elected as Committee members were ‘indebted’ to Chin Woo within the meaning of Article 9 of the AoA. Having considered the evidence and the parties’ submissions in this regard, I am of the view that the Plaintiff has failed to discharge her burden. The Plaintiff’s case in this regard is unparticularized and the evidence adduced is both scanty and unhelpful. In the circumstances, I dismiss the Plaintiff’s claim for the 2nd Declaration. 31.Going back to the 1st Declaration sought by the Plaintiff. The key issue is whether the Committee members were duly elected at the meeting on 15 July 2005. As stated above, the affirmations filed by the parties contained conflicting versions as to what happened at the meeting on 15 July 2005. Their oral testimonies in court also differ. 32.To begin with, the Plaintiff is not a reliable witness. Whilst she might have tried her best to assist the court, the Plaintiff’s memory and ability to understand what was going on are clearly open to question. Not only are various parts of her oral testimony inconsistent with the case she put forward in her affirmations, there are various inconsistencies within her oral testimony. A few examples will illustrate this. First, in paragraph 4 of her 2nd Affirmation, the Plaintiff asserted that since mid-1980, every single election did follow the procedure laid down in the AoA (i.e. the amended version). However, during cross-examination, the Plaintiff admitted that she could not recall how elections before 2005 were conducted. She also admitted that she could not recall a lot of things. Second, during cross-examination, the Plaintiff claimed for the first time that at the meeting on 8 July 2005, the 1st Defendant said that the election procedure was wrong after the votes were counted. When confronted as to why this allegation was never made in any of her affirmations, the Plaintiff could not give any explanation save to say that she could not recall. 33.On the other hand, although his oral testimony is not entirely prefect and there are minor inconsistencies with his affirmations, I find the 1st Defendant a reliable and honest witness. The 1st Defendant’s evidence on the meeting of 15 July 2005 was consistent with and supported by the evidence of Chiu. Chiu was also present at the meeting on 15 July 2005 and I also accept his evidence. 34.Insofar as there are any differences between the evidence of the Plaintiff and the evidence of the Defendants (including the conflicts in relation to what happened during the meeting on 15 July 2005), I prefer and accept the evidence of the Defendants and reject the evidence of the Plaintiff. 35.Another more important aspect of the Plaintiff’s evidence is this. Amongst the documents produced in these proceedings is a list setting out the name of the Committee members of the 19th session (“Candidates List”) (i.e. page 99 of the Trial Bundle, which is exhibit “ACL-5” to the Supplemental Affirmation of the 1st Defendant filed on 21 August 2006). During cross-examination, the Plaintiff was asked to look at the Candidate List. It was put to the Plaintiff and she agreed that at the meeting on 15 July 2005, the 1st Defendant read out each of the names on the Candidate List and asked if anyone objected to any of them to be elected as Committee members of the 20th session. Further, it was put to the Plaintiff and she also agreed that save for one person (余曉帆), all the names on the Candidates List were elected as Committee members of the 20th session. 36.Not only does this part of the Plaintiff’s testimony destroy her own case, it supports the 1st Defendant’s case as set out in paragraph 28 of the 1st Defendant’s Affirmation filed on 13 April 2006 (where the 1st Defendant affirmed that he read out the names of the Committee members of the 19th session one by one and that they were elected as Committee members of the 20th session at the meeting on 15 July 2005 with the exception of 余曉帆). Besides, it is pertinent to note that 1st Defendant wrote the result of the election on the right hand part of the Candidate List and signed his name with the date of 15 July 2005. 37.During cross-examination, the 1st Defendant was asked as to why the Candidates List was only exhibited to his Supplemental Affirmation and not his first Affirmation. He was also asked whether the Candidates List was created after the event, which was denied by the 1st Defendant. Although it was legitimate to ask why the 1st Defendant did not produce the Candidates List at the first possible opportunity, I do not think there is sufficient basis or evidence to throw doubt on the authenticity or genuineness of this document. Nor are there materials to enable this court to find that the Candidates List was created by the 1st Defendant after the event for the purpose of fortifying his case. In the circumstances, I find that the Candidates List (considered in light of the Plaintiff’s and the 1st Defendant’s testimonies) supports the Defendants’ case as to what happened at the meeting on 15 July 2005. 38.Apart from the above discussed, there are other matters raised by the parties either in evidence or in their counsel’s submissions that concern the question of whether the Committee members were properly elected at the meeting on 15 July 2005. Examples include the so-called election practice of clapping hands when a member was elected and the dinner meeting in August 2005 mentioned above. Entirely without disrespect to the parties or their counsel, I do not think it is necessary to deal with those matters in any detail. Suffice it to say that I do not think those matters affect my findings on the issues. 39.Whether there was the practice of clapping hands when a member was elected is neither here nor there. Article 22 and the other provisions in the AoA do not specify the exact manner for the election of Committee members. For instance, the AoA does not stipulate election by show of hands, secret ballot or other mechanism. According to the Plaintiff’s own testimony, each name on the Candidates List was read out by the 1st Defendant and no one raised any objection save in the case of 余曉帆. More importantly, no one at the meeting on 15 July 2005 raised any objection as to this mode of election adopted by the 1st Defendant. 40.The evidence concerning the dinner in August 2005 and the August List produced by 廖國存 equally do not assist the Plaintiff. 廖國存 did not testify at the trial of these proceedings. The Plaintiff could not really assist in this aspect and paragraph 7 of her 3rd Affirmation affirmed on 12 September 2006 (which dealt with the August List) is no more than a statement of submissions as opposed to a statement of fact. If it is at all necessary to make any finding, I would hold that the putting forward of the August List by 廖國存 was an attempt to re-open the election and to negotiate a deal with the 1st Defendant especially bearing in mind his then position as the Permanent Chairman (another aspect of the evidence which I do not think I need to address in this Judgment). 41.In the circumstances, I find that the Committee members of the 20th session were duly elected at the meeting on 15 July 2005 pursuant to Article 22 of the AoA and I reject the Plaintiff’s claim for the 1st Declaration. 3rd Declaration 42.The 3rd Declaration sought by the Plaintiff is that the Notice No. 052 of 29 September 2005 is invalid. As I have rejected the Plaintiff’s claim for the 1st and 2nd Declarations, I see no basis for granting the 3rd Declaration. 43.Since the Committee members were properly elected on 15 July 2005, I rule that the 1st Defendant was entitled to issue the Notice No. 52 and that the same was valid. In the circumstances, I also dismiss the Plaintiff’s claim for the 3rd Declaration. 4th Declaration 44.The last declaratory relief sought by the Plaintiff is a declaration that the meeting of the Committee members of the 20th session conducted on 14 October 2005 pursuant to the Notice No. 053 is invalid and therefore the nominations and/or election held thereat were also null and void. 45.Given my above findings and rulings, the validity of the Notice No. 053 calling for the meeting on 14 October 2005 cannot be challenged. The 1st Defendant was entitled, if not obliged, to convene a Committee meeting to elect the various officers of the Committee. The remaining question, as raised by the Plaintiff, is whether the meeting on 14 October 2005 was quorate. 46.I have no doubt and do find that the meeting on 14 October 2005 was quorate. Article 17(d) of the AoA stipulates that the quorum for a Committee meeting shall be 11 members present, voting and in person. According to paragraph 9 of the Plaintiff’s 3rd Affirmation affirmed on 12 September 2006, the meeting was attended by about 50 persons and only 10 to 20 left together with Chung. Thus, even assuming the Plaintiff’s account is correct, there were at least about 30 persons who attended and remained at the meeting on 14 October 2005. Indeed, when the Plaintiff was shown Article 17 of the AoA during cross-examination, she accepted that the meeting on 14 October 2005 was quorate. 47.The minutes of the meeting held on 14 October 2005 set out the names of the Committee members who attended the meeting. According to the minutes and the Defendants, a total of 57 Committee members were present at the beginning of the meeting and 12 of them left before the election took place. During the Plaintiff’s closing submissions, queries were raised as to a person by the name of 李潤添. Despite the queries raised by the Plaintiff, there is no bases, let alone evidence, to suggest that there were less than 11 Committee members present at the meeting on 14 October 2005 when the election of the chairman and other officers took place. 48.Another point raised by the Plaintiff concerns the deadline stated in the Notice No. 052. It asked the elected Committee members to reply by 9:00 p.m. on 14 October 2005 to confirm whether they agreed to act as Committee members. The Plaintiff points out, rightly, that the meeting in question finished at around 9:00 p.m. on 14 October 2005. However, I do not think such a point assist the Plaintiff. Although the burden of proof rested with her, the Plaintiff had not adduced any evidence to show that (apart from the Plaintiff) the other Committee members who attended the meeting on 14 October 2005 had not replied before they attended the meeting on 14 October 2005. In particular, there is no evidence to show that less than 11 Committee members had replied before the commencement of the meeting on 14 October 2005. In the circumstances, I also dismiss the Plaintiff’s claim for the 4th Declaration. Conclusion 49.In light of my rulings and findings set out above, I dismiss all the relief claimed by the Plaintiff in these proceedings and I do so order. I also make an order nisi that, save for any costs already covered by previous orders, the Plaintiff do pay to the Defendants the costs of and occasioned by these proceedings to be taxed if not agreed. 50.Last but not least, may I also express my gratitude for the assistance rendered by the parties’ counsel in the course of the hearing.
Mr. Jeremy Cheung, instructed by Messrs. Ivan Tang & Co., for the Plaintiff. Ms. Queenie W.S. Ng, instructed by Messrs. Yu Hung & Co., for the Defendants. |