Chinachem Charitable Foundation Ltd v. Chan Chun Chuen and Others

HCAP 8/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 8 OF 2007

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BETWEEN

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Before:  Hon Lam J in Chambers

Date of Hearing:  13 March 2009

Date of Decision:  19 March 2009

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D E C I S I O N

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1.A litigant in person, Ma Pui Tung intends to apply on behalf of an association called Right to Inherent Dignity Movement Association [“the Association”] to join in this probate action as intervenor.  The draft summons seeks leave to be joined as an additional defendant.

2.Because the Association is an unincorporated body, it is not clear whether it is meant to be an application by all the current or future members of the Association with Mr Ma as their representative.  If it is a representative action, the group or class of persons sought to be represented must be clearly defined as it has practical implications, see Right to Inherent Dignity Movement Association v. HKSAR Government HCAL 74 of 2008, 21 August 2008.

3.When Mr Ma sought to have the summons issued, the Registry referred the matter to this court.  This court heard the matter on 13 March.  The other parties to the probate action have been notified but they did not appear at that hearing.

4.At the hearing, Mr Ma informed the court that he would not disclose the names of the members of the Association for fear of political oppression.  I cannot understand what Mr Ma was referring to and how the disclosure of the names to this court can lead to oppression.  In Hong Kong all persons enjoy freedom of assembly and each person can decide for himself or herself whether he or she wants to join a particular organization.  However, if a person wants to participate in legal proceedings, whether through oneself or by way of representative action, he or she cannot hope to avoid possible unfavourable consequences (including consequences as to costs) by refusing to disclose his or her identity.

5.Since Mr Ma refused to disclose the identities of the members of the Association who seek to be joined in by way of a representative action, I am of the view to allow an application to be made in the name of an unincorporated association under such circumstances is an abuse of process.  This court is not minded to entertain such an application.

6.Mr Ma then said he would make the application on his own.  He did not have any potential interest in the estate as there is no arguable ground for suggesting that he would be a person who may be affected either as a beneficiary or executor under a will in issue or upon intestacy.

7.The only interest he can identify is interest qua a member of the public stemming from the possible charitable element in one of the wills in dispute.  He submitted that the matter comes within public interest litigation and as such he, as a member of the public, can intervene if the following criteria are satisfied,

(a)     if the court finds his participation in the action to be of assistance; and

(b)    if there is inadequate representation of the public interest.

8.I do not propose to enter into a debate whether the present action falls within the scope of what Mr Ma called “public interest litigation”.  Different people have different understanding of that phrase and I am not sure Mr Ma gave that expression the same meaning as it was given in the writings quoted by him.  I certainly do not see any of those writers using that expression to encompass a probate action even though one of the will in dispute may potentially have a charitable element.

9.All that I need to say in the present context is that the public interest stemming from the potential charitable element in one of the disputed wills is properly looked after by the Secretary for Justice.  I do not see any basis in Mr Ma’s bold and serious assertion (without any evidence supporting the same) that the Secretary for Justice is colluding with one of the parties.  Neither do I see any need for concern that the public interest is not well looked after.  The Secretary for Justice is represented by experienced and respectable Senior Counsel in this action.  As far as I can see, the Secretary has all along been acting responsibly and properly.

10.Hence, given that the Secretary for Justice is already a party to the action, Mr Ma cannot apply to join in as a relator. In any event, a relator must act through lawyers and Mr Ma is not proposing to engage any lawyers to represent him.

11.It is not for an outsider to say how the Secretary for Justice should conduct the proceedings in his capacity as guardian of public interest.  Different persons may have different views.  The Secretary (and those acting for the Secretary) has the sole and exclusive authority and responsibility to represent the public interest arising from a charity in this court.  Mr Ma simply cannot demonstrate any proper ground to support an application for intervention, see Paras. 15/6/7 and 15/6/8 of the Hong Kong Civil Procedure 2009.

12.Further, I do not find Mr Ma’s participation in this action to be of assistance.  With respect, his submissions to this court demonstrated that he has difficulties in focusing on the relevant issue and he has many misunderstanding of the law and the legal process.  His joinder to this action will prolong the trial and add unnecessary costs to the proceedings.

13.Mr Ma’s real objective is to further his campaign of what he called an era of Legal Brave New World with a new concept of justice. Apparently, he intends to invite this court to depart from established common law authorities, including the decision of the Court of Final Appeal. I say nothing as regards the wisdom of his philosophy and political aspirations. But I must say I do not regard the present action as a proper forum for him to lobby his views.  

14.It is well established that an ordinary member of the public has no locus standi to bring proceedings for the purpose of establishing whether a charitable trust exists: see Hauxwell v Barton-upon-Humber Urban District Council [1974] 1 Ch 432; Re Belling [1962] Ch 425. I therefore reject his submission on joinder set out in paragraph 7 above as a matter of law.    

15.For all these reasons, even though the summons has not been formally issued, as all parties were given notice and the substance has been argued, I treat the application as having been made and I dismiss the same.

16.I do not make any order as to costs since the existing parties to the action do not appear.

Intended Party, MA Pui Tung, in person