Regal Shining Ltd v. Secretary for Justice (on behalf of the Director of the Lands Department and The Town Planning Board)

HCMP 2781/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2781 OF 2012

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BETWEEN

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Before: Hon Anthony Chan J in Court

Date of Hearing: 23 – 24 September 2014

Date of Judgment: 21 October 2014

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J U D G M E N T

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1.By an Originating Summons filed on 7 December 2012 (“Summons”), the plaintiff (“RSL”) seeks various declaratory reliefs in relation to the use of a landed property known as the RP of Lot No 714 in DD 450, Yiu Wing St, Kwai Chung, New Territories (“Lot”). 

2.On the Lot, there is erected a 1-storey structure used as a Taoist temple and within that temple there is a columbarium (“Columbarium”).  The controversy here concerns the Columbarium.

Background

3.The material facts are undisputed save for 1 point, which will be dealt with below (see para 67).

4.RSL is a Hong Kong company which was incorporated in September 2007.  It has 6 corporate shareholders, all of them were incorporated in the BVI with the exception of 1 being a Macanese company.

5.On 3 December 2007, the Lot was acquired by RSL at the cost of HK$116 million.  According to the land search record, it was acquired without a mortgage. 

6.On 30 June 2008, a set of building plans were submitted on behalf of RSL to the Building Authority (“BA”) whereby RSL proposed to re-develop the Lot as a “Taoism Place cum meditation rooms”.  The application was followed by a long series of correspondence between RSL’s representatives and the District Lands Office / Tsuen Wan and Kwai Tsing Lands Department (“DLO”) concerning the intended use of the Lot.  In particular, RSL’s representatives were asked in September 2008 whether the place would involve columbarium use and a negative answer was given in October 2008.  

7.However, in a letter from RSL’s solicitors dated 3 December 2009, it was confirmed that RSL had resolved to establish and operate a columbarium on the Lot. 

8.Eventually, a Taoist temple known as Hong Dao Tang (“HDT”) was erected on the Lot in about January 2010.  The evidence does not cover the subsequent approval of the building plans by BA in respect of HDT.

9.Inside HDT, there are around 26,000 niches for the storage of ashes resulting from the cremation of deceased Taoist believers.  In the reply evidence of RSL, it was suggested that the number of niches would be cut down to 10,219.  There is, however, no evidence that the number of niches has been reduced. 

10.The Lot has an area of approximately 42,930 sq ft.  HDT is made up of a 1-storey structure.  Its central portion is occupied by a courtyard garden and a hall. There are 2 wings – a west wing and an east wing.  Each wing is broadly sub-divided into 8 sections with connecting corridors.  There is a garden on the roof top.  Niches can be found in 1 section in the west wing and all 8 sections of the east wing.  It appears from a photograph that the niches are built along the walls. 

11.The evidence is that various Taoist religious activities have been carried out at HDT on a regular basis. 

12.It is accepted by Mr Fung SC, who appeared for RSL with Mr Hon and Mr Lam, that HDT is run, partly at least, as a commercial enterprise.  The court was informed that the average cost for the niches is HK$80,000.  The material before the court shows that some of the religious rites provided at HDT are available at a fee. 

13.It is well-known that the shortage of columbarium has been a matter of public concern.  The Government has proposed to introduce a licensing scheme to regulate private columbarium.  Prior to the introduction of such scheme, the Government has, as an interim measure, published land/lease and town planning information on the private columbarium that are known to the Lands Department or the Planning Department for purposes of consumer protection. 

14.Pursuant to the interim measure, the Development Bureau has, on various dates since 16 December 2010, published a document known as Information on Private Columbarium (“Information”).  Part A of the Information sets out the private columbaria that are compliant with user restrictions in the land leases and the town planning requirements and are not in illegal occupation of Government land.  Part B lists out those private columbaria which have yet to be checked for compliance before inclusion in Part A or have been confirmed to be non-compliant with one or more of the said user restrictions and/or occupying Government land illegally. 

15.HDT has been classified as falling within Part B.  According to the Information, it does not comply with planning requirements and columbarium use is not permitted under the land lease.  Hence this action.

The land lease

16.The Lot is governed by the lease terms under New Grant No 3306 (“New Grant”), the instrument by which the Government granted the Lot to its original lessees on 5 August 1953 (in the form of a Memorandum of Agreement).  The New Grant incorporated, inter alia, General Condition No 15 (“GC 15”) in Government Notification (“GN”) No 364 of 1934 as amended by GN No 50 of 1940.  GC 15 provides that : 

“Without the consent of the District Officer, no grave shall be made on, nor shall any human remains be interred in, or deposited on the lot sold either in earthenware jars or otherwise”.

[emphasis added]

17.There is a Chinese version of GC 15 (“CV”) as contained in a Government Gazette dated 4 May 1934 which reads as follows :

“如未得理民府允許不得在該地建築墳墓亦不得擅葬骸骨或貯放金塔”.

18.In addition to GC 15, GC 8 of the New Grant provided that when the conditions had been complied with, a Crown Lease in the form set out in Schedule A with terms in Schedule B should be deemed to be issued.  By virtue of Section 14(2) of the Conveyancing and Property Ordinance, Cap 219, such Crown Lease should be deemed to have been issued.  This included clause 7(5) (“Cl 7(5)”) which is in similar terms to GC 15 as well as clause 7(1) which provides that the Government may re-enter in case of breach or non-performance of any or either of the covenants and conditions therein or in the New Grant.

19.For completeness, Cl 7(5) is set out below :

“That without the consent of His said Majesty, signified in writing by the Governor of the said Colony or other person duly authorized in that behalf, no grave shall be made on, nor shall any human remains be interred, or deposited on the said premises, …”.

20.Here, the Government[1] is relying upon both GC 15 and Cl 7(5) and says that these provisions clearly prohibit storage on the Lot of ashes resulting from cremation (“Ashes”).  RSL disagrees.

The Outline Zoning Plan

21.Town planning in Hong Kong is governed by Outline Zoning Plan (“OZP”).  The Lot was governed by Kwai Chung OZP No S/KC/21 (“OZP 21”) at the time when HDT was established.  OZP 21 has since been superseded by the draft Kwai Chung OZP No S/KC/26 and then by OZP No S/KC/28 (“OZP 28”).  There may be a disagreement between the parties as to whether OZP 21 or OZP 28 is the applicable version.  However, there is no disagreement that there is no material change between the 2 and I shall refer to OZP 28 for the present purpose.

22.Under OZP 28, the Lot is zoned under “Other Specified Uses” annotated “Business” (“OU(B)”).  As provided in the Notes for OU(B) under Schedule I (open area development or building other than industrial or industrial-office building), “religious institution” is specified as a Column 1 use, meaning that the use of land for such purpose is always permitted.  On the other hand, “columbarium” is not a Column 1 use, nor does it fall under Column 2 (users permitted with or without conditions on application to the Town Planning Board (“TPB”). 

23.Accordingly, the Government maintains that the Columbarium is contrary to the statutory restrictions imposed under OZP.  RSL disagrees and contends that HDT is a religious institution (“RI”) which is a user always permitted under the OZP and the storage of Ashes thereat is part and parcel of Taoist religious practice in accordance with Taoist religious principles.

Issues for determination

24.Against this background, RSL raises three specific questions by the Summons :

(i)   Whether GC 15 prohibits the storage of Ashes on the Lot (“GC 15 Issue”).

(ii)   Whether HDT is a “religious institution” as defined in the Definition of Terms (Revised Version) issued by the TPB and is a user always permitted in the OZP.

(iii)   Whether RSL is entitled, without the consent or approval of the Lands Department or the TPB or any other government or statutory bodies, to store Ashes on the Lot (“OZP Issue”).

25.It is quite clear from the foregoing that the GC 15 Issue turns mainly upon the proper construction of the term “human remains”.

26.In respect of the OZP Issue, the Government accepts that HDT, apart from the Columbarium, is a RI which is a permitted user.  However, it maintains that the fact that part of HDT is a permitted use does not mean that the non-permitted user is exempted or subsumed under the permitted use.  This issue turns upon the proper construction of the terms “religious institution” and “columbarium” as used in the OZP.

27.There is a counterclaim by the Government set out in para 30 of the affirmation of Ms Chung Sau Wei filed on 18 March 2013 (“Counterclaim”) :

(a)   A declaration that [RSL] is in breach of GC 15 and/or Cl 7(5).

(b)   An order that [RSL] do forthwith remove from the Lot all human remains, including any cremated ashes.

(c)   An order that [RSL] do forthwith cease the sale or advertisement of the sale of niches for the storage of cremated ashes on the Lot.

(d)   Costs.

Public law issue

28.There is no dispute that the OZP Issue is a public law issue.  However, the parties are in agreement that it should be dealt with in this action.  Further, it is clearly just and expedient to do so (see Hong Kong Civil Procedure 2014, vol 1, p 996-7).

The evidence of Professor Lai

29.This court has considerable misgivings about the evidence of Professor Lai Wai Chung adduced by RSL in the form of an affidavit filed on 7 December 2012.  To begin with, it is clearly opinion evidence premised upon the expertise of the witness.  However, the evidence is not, on its face, put forward as expert evidence. 

30.Secondly, there is no declaration by the witness in accordance with Appendix D of the Rules of the High Court which contains a code of conduct for expert witnesses.  This is to be contrasted with 3 expert reports adduced by RSL, each of which contains an Appendix D declaration.  Although it may be said (it is not the position taken by Mr Fung) that technically O 38, r 37C, which requires an expert witness to make an Appendix D declaration, does not apply to these proceedings because of the exclusion under O 38, r 36(2) in respect of evidence permitted to be given by affidavit, it must be right that an Appendix D declaration ought to be made by all expert witnesses : see Chen Ha Ping Hepburn & Anr v Loong San Investment Co Ltd, unrep, HCMP 1380/201, 30 April 2014, paras 11 to 14.

31.Thirdly, it is clear from his affidavit that the witness was advocating the cause of RSL, which is quite inconsistent with his duty to the court as an expert witness.

32.These concerns were put to Mr Fung so that he might consider addressing in the event that he wished to defend the evidence of this witness.  Mr Fung has made no attempt to do so.  In the premises, this evidence is ignored.

Principles of interpretation

33.Although the OZP does not constitute subsidiary legislation (see Wah Wick Enterprises Co Ltd v Building Authority [1999] 1 HKLRD 237 (CA) at 247A-B), the parties are in agreement that the rules of statutory interpretation should be applied to the construction of the OZP.  This is well-supported by case law (see Wah Wick Enterprises Co Ltd v Building Authority [1999] 1 HKLRD 840 (CFA)).

34.However, it was observed by the Court of Appeal in Wah Yick at p 247B-C that OZP “is far removed from the precise nature of the drafting and formulation of subsidiary legislation”.  

35.The guiding principles as to the interpretation of contractual provisions and statutory provisions are essentially the same. The difference here between the parties is confined to matters of emphasis.

36.It is well-established that the principles of contractual interpretation elucidated by Lord Hoffmann in Jumbo King Ltd v Faithful Properties Ltd & Ors (1999) 2 HKCFAR 279 at 296 and Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at 912-913 apply to the interpretation of restrictive lease covenants.  As explained in the latter authority, the interpretive process essentially involves :

“the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract” (p 912H).

37.In Fully Profit (Asia) Ltd v Secretary for Justice (2013) 16 HKCFAR 351, a case concerning the interpretation of a restrictive covenant in a Government lease, Ma CJ stated the following (at §15) :

“We have been referred to the very well-known statement of principle regarding the construction of contracts contained in the speech of Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society, to which can be added the judgment also of Lord Hoffmann NPJ in Jumbo King Ltd v Faithful Properties Ltd.  What emerges from these cases – and other authorities on contractual interpretation – is the overall importance of context when construing contractual terms.  The statements of principle in Investors Compensation Scheme and in Jumbo King refer time and again to the relevant background against which the relevant contract and contractual terms must be viewed.  It is in my view not particularly helpful in most cases to refer to the “ordinary and natural meaning” of words because, as very often experience tells us, there can be much debate over exactly what is the ordinary or natural meaning of words.  The surer guide to interpretation is context.  Here, I would just add that in the area of statutory and constitutional interpretation, it is context that is key; context is the starting point (together with purpose) rather than looking at what may be the natural and ordinary meaning of words”.

38.The relevant context in respect of any contractual clause is of course a matter of objective ascertainment.

39.For statutory construction, Li CJ stated in HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568 :

(i)   “In interpreting a statute, the Court’s task is to ascertain the intention of the legislature as expressed in the language of the statute.” (§11)

(ii)   “The modern approach is to adopt a purposive interpretation.  The statutory language is construed, having regard to its context and purpose.  Words are given their natural and ordinary meaning unless the context or purpose points to a different meaning.  Context and purpose are considered when interpreting the words used and not only when an ambiguity may be thought to arise.” (§12)

(iii)   “The context of a statutory provision should be taken in its widest sense and certainly includes the other provisions of the statute and the existing state of the law.” (§13)

40.Relying upon the dicta of Ma CJ in Fully Profit, Ms Eu SC, who appeared for the Government with Mr Chan, advocates that the starting point for the court in the present exercise is context.

41.On the other hand, I am asked by Mr Fung not to over-rely upon context at the expense of the meaning of the words.  I was referred by Mr Fung to China Field Ltd v Appeal Tribunal (Buildings) (No 2) (2009) 12 HKCFAR 342 at §36 where Millett NPJ said that :

“There can be no quarrel with the principle that statutory provisions should be given a purposive interpretation, but there has been a distressing development by the courts which allows them to distort or even ignore the plain meaning of the text and construe the statute in whatever manner achieves a result which they consider desirable. It cannot be said too often that this is not permissible. Purposive construction means only that statutory provisions are to be interpreted to give effect to the intention of the legislature, and that intention must be ascertained by a proper application of the interpretative process. This does not permit the Court to attribute to a statutory provision a meaning which the language of the statute, understood in the light of it context and the statutory purpose, is incapable of bearing: see HKSAR v Lam Kwong Wai.”

42.I agree with Mr Fung that it is thewords set against the context, not context alone, which is critical.  In Leung Chun Ying v Ho Chun Yan Albert (2013) 16 HKCFAR 735 at §12, Ma CJ observed that :

“the proper starting point in statutory interpretation, as well as constitutional and contractual interpretation, is to look at the relevant words or provisions having regard to their context and purpose”.

43.I shall bear in mind the above principles. Before turning to the construction exercise, I shall deal with 1 controversial legal issue.

Presumption in favour of the Government

44.The Government relies on a further principle of interpretation, and one which applies specially to government leases, namely, where the court finds that a disputed provision is genuinely ambiguous in all the circumstances, then in law it is required to construe the provision favourably to the Government and against the grantee.  As stated by Slade J in Earl of Lonsdale v AG [1982] 1 WLR 887 at 901F-G after surveying the case law on the point :

“The effect of these cases, as I read them, is that, if the wording of a grant by the Crown is clear and unequivocal, the grantee is entitled to rely on it as much as if the grantor had been any other subject of the Crown; if, on the other hand, the wording is obscure or equivocal, the court must lean towards the construction most favourable to the Crown, unless satisfied that another interpretation of the relevant words in their context is the true one.”

45.The above approach and statement of principle were recently affirmed by the Hong Kong Court of Appeal in New Mercury Holding Corporation v Secretary for Justice, CACV 73/2013, 15 April 2014 at §14. 

46.In RSL’s Skeleton Submissions, para 29, it is said that the contra proferentum rule should apply to the construction of GC 15 in the event of ambiguity.  In his oral submission, Mr Fung said that a presumption in favour of the Government would infringe Article 6 of the Basic Law which protects the right of private ownership of property.  Leaving aside the fact that this is a new point taken without any forewarning to the Government, Mr Fung accepts that this court is bound by New Mercury. Hence, the point is not open to dispute.

47.However, there is no dispute that insofar as the OZP is concerned any ambiguity is to be resolved in favour of RSL by reason of the principle that “a statue should not be held to take away private rights of property without compensation unless the intention to do so is expressed in clear and unambiguous terms”: see Wah Yick (CFA), supra, at 849J to 850B.

The GC 15 Issue[2]

48.The primary question here is whether, considering its context and purpose, “human remains” include Ashes.

49.With respect, I propose to start with the ordinary and natural meaning of “human remains” because they are reasonably plain.  Ashes are produced when a human body is cremated.  I am unable to see why “human remains” do not include Ashes. 

50.I have been referred by both parties to the Shorter Oxford English Dictionary for the meaning of “remains” – “The remaining parts or part; what remains after other members or parts have gone or been removed, used, or dealt with”.  This dictionary meaning of “remains” is consistent with what this court believes to be the ordinary and natural meaning of “human remains”.

51.In this regard, there is a glaring absence of explanation in RSL’s case as to why Ashes, as a matter of ordinary and natural meaning, do not come within “human remains”.

52.The only point taken by RSL, based on an expert report of Dr Whitaker, is that the process of cremation would result in the reduction of the human body to “inorganic remains of former bones and teeth (mainly calcium and phosphate)” and that “no DNA can be found or identified in the remains”. 

53.With respect, such evidence is unhelpful.  First of all, it is quite obvious that the cremation of a human body would reduce it into something inorganic.  However, I am at a lost to see what it has to do with the ordinary and natural meaning of “human remains”.  It is not a matter of chemical composition.  Further, as Ms Eu has pointed out, according to Dr Whitaker’s analysis, Ashes are nevertheless human remains.  

54.The matter must be considered with common sense.  I believe that it would be a hard task to find an average Hong Kong person who would agree that Ashes should not be regarded as human remains, especially if that person has gone to some length and dug into his savings to secure a niche as a final resting place for his loved one.

55.According to a piece of promotional material published on HDT’s website, niches are the resting place for the Ashes of ancestors (“安奉其先人之靈灰”). 

56.I should add that GC 15 was drafted in embracing terms.  Both the making of grave and the deposit of human remains are prohibited unless there is consent of the District Officer.  The prohibition extends to “any human remains” and regardless of whether the human remains are interred or how they are stored on the land (“in earthenware jar or otherwise”).   

57.Clearly, adding the word “any” to “human remains” goes a long way to fortifying the case of the Government. 

58.Next, I consider the purpose of GC 15. 

59.One starts with the fact that this is a government lease.  The purpose of GC 15 is clearly land use control.  At the risk of stating the obvious, no world class city can be built without the exercise of proper control by the government on the different and conflicting uses of land.  

60.GC 15 seeks to control the use of the Lot as a grave or depository for human remains (“Depository”).  There are obvious reasons for the control.  The location of a grave or Depository is a sensitive issue for any community, especially a superstitious one like Hong Kong[3], ie, a lot of Hong Kong people would not like to reside in the same neighbourhood where a grave or Depository is situated.  The other side of the same coin is that the location of a grave or Depository is liable to affect the value of the land in the neighbourhood.  Hence, conflict may arise between neighbours due to the location of such facilities.  Further, the location of a grave or Depository may give rise to health issues and would have an impact on human and vehicular traffic at various times of the year. 

61.I have no doubt that these considerations were as valid in 1953 (date of the lease in question (“Lease”)) as they are today.  In all probability, people were even more superstitious in the older days.

62.In light of the purpose of GC 15, it is very difficult to see why Ashes are excluded from human remains.  I have borne in mind Mr Fung’s submission that the storage of Ashes gives rise to no health issue, but that is only 1 aspect of the purpose of GC 15.  

63.Before moving onto context, I should mention a point which concerns both the elements of purpose and context.  There is evidence adduced by the Government in the form of contemporaneous government records on the background which gave rise to GC 15 (“Records”).  RSL takes issue on the admissibility of the evidence and it will be dealt with below. However, it should be noted here that what has been said above concerning the purpose of GC 15 is simple common sense.  The evidence is only icing on the cake. 

64.For context, it used to be referred to as the factual matrix in the older authorities.  Here, one is concerned with the relevant factual matrix of 1953.  So what is the relevant factual matrix in terms of GC 15? 

65.One may start off with a few obvious points about the social conditions in Hong Kong.  Hong Kong is a small place with a big population.  For those who know a little about the history of Hong Kong, there must have been significant population expansion in the 1950s.  No doubt that had put a strain on much of the available resources.  Hong Kong people are superstitious, likely more so in those days.  The points made above (para 60) on reluctance to live near a graveyard and the value of neighbouring land being depressed by the existence of the same must be part of the factual matrix. 

66.As long ago as 1914, a Cremation Ordinance was in existence the purpose of which was to regulate the practice of cremation.  The relevant Hansards (5 and 26 February 1914) recorded the objects and reasons of the Bill, which resulted in the Cremation Ordinance of 1914, as follows :

“The disposal of human remains by cremation is a practice which is already by no means unknown in the Colony.

The cremation of the dead is an essential feature of some religious communities whilst, apart from this fact, this method of dealing with human remains appears to be growing in favour amongst other sections of the public.

The attention of Government having been drawn, owing inter alia to applications for permission to erect crematoria, to the absence of satisfactory local legislation dealing with the question of the regulation of this practice, the present Bill has been introduced …” (5 February 1914)

“… the practice of cremation is on the increase amongst all sections of the community.” (26 February 1914)

67.The prevalence of cremation amongst the Chinese population of Hong Kong in 1953 is a matter of controversy.  RSL has adduced before the court an expert report by Dr Baker which suggests that the concept of cremation was alien to the thinking of most Chinese (from late Qing dynasty to the establishment of the PRC in 1949). With this evidence, RSL argues that the use of the term “human remains” could not have intended to include Ashes. 

68.I am inclined to agree with Ms Eu that it is unhelpful and quite impossible to make a quantitative assessment on the prevalence of cremation in Hong Kong amongst the Chinese population back in 1953.  However, it is a fact that cremation has been regulated by law as early as 1914 and that must be a reflection that it was not something alien to the Chinese population.  Indeed, the Hansards suggest otherwise. 

69.Although there is no clear evidence whether cremation had become more popular or less so between 1914 and 1953, in the context of a very crowded place where land was a scarce and expensive resource, I would be very surprised if cremation had not grown in popularity during those years.  Ironically, there is some support for this belief in another expert report adduced by RSL.  In a report from Dr Yao, it was stated in para 3.2 that in the 1950s with the encouragement of the Government, change in thinking and shortage of land supply cremation had gradually become popular (“1950年代，港府提倡移風易俗，呼籲市民選用火葬。隨著人們觀念之改變、土葬之地供應有限，火葬已漸成為流行的葬式。”). 

70.It is convenient here to deal with the evidential dispute mentioned in para 63 above.  The Records start from 1908 because GC 15 first appeared as Special Condition No 5 (“SC 5”) in GN 278 of 1911 (there was no material change to the wordings).  The Records are adduced to explain the impetus for SC 5 and to demonstrate the thinking and discussions amongst various government servants on the relevant considerations. 

71.RSL takes issue with the Records because they were internal record of the Government and do not reflect the common intention of the contracting parties to the Lease at the material time. 

72.I believe that the answer to the objection lies in the use of the Records.  It is of course impermissible for the Government to produce its internal record to show what its unilateral intention was at the time.  However, it is a permissible use of the Records to demonstrate what the social conditions were at the time. 

73.There is a very helpful summary of the Records contained in paras 25 to 31 of the Government’s Skeleton Argument.  I do not propose to set it out in this judgment.  The Records have largely confirmed the observations made in para 60 above. 

74.I have been referred by RSL to various government publications (gazettes, Registrar General’s reports, Hansards of the Cremation Ordinance 1914 and a file of opinion and suggestions of District Watchmen Committee in respect of “trouble” arising out of Fung Shui and graves in the New Territories)[4].  These publications were dated from 1889 to 1928.  References to “remains” and “human remains” can be found in the same, and such terms were used to refer to human bodies or their remains but not to Ashes. 

75.I do not find these materials helpful to RSL’s case.  It is not really disputed that cremation was not part of the local culture in the old days.  It is therefore not surprising for the references of “remains” and “human remains” in such materials to mean the human bodies or their remains as opposed to Ashes.  However, firstly, it does not follow that the term “human remains”, especially “any human remains”, does not cover Ashes as a matter of ordinary and natural meaning.  Secondly, the relevant factual matrix is that which was prevailing in 1953 and by which time cremation must have become part of the local culture. 

76.I have also been referred by RSL to the Cremation Ordinance 1914, the Regulations made thereunder and the Public Health and Buildings Ordinance 1923[5].  In respect of the Cremation Ordinance and its Regulations, it is said that under those legislations “ashes” and “human remains” were 2 separate and distinct concepts.  I am not attracted by this submission.  It is plain that in these legislations it was necessary to distinguish between “ashes” and “human remains” because of the need to deal with different stages where human remains turned to ashes. For instance, Regulation 15 provided as follows :

“After the cremation of the remains of a deceased person the ashes shall be given into the charge of the person who applies for the cremation if he so desires. …”

77.As regards the Public Health and Buildings Ordinance, I was referred to sections 91 and 92 thereof.  The former concerned the proper burial of human bodies and the depositing of urns containing the remains of any bodies.  The latter prohibited the exhumation of human bodies or their remains without the requisite permit.  I do not derive any assistance from these provisions, which were concerned with public health issues relating to the disposal of human bodies or their remains.  Obviously, there is no similar issue concerning Ashes.  The timing of the legislation, a point which has been alluded to in para 75 above, also militates against any reliance on it for the present purpose. 

78.I am not attracted by RSL’s argument that the word “ashes” would have been used had it been intended that GC 15 covered the same.  On any objective reading, the provisions of GC 15 are quite clear.  I see no reason why GC 15 should have been burdened with more words. 

79.Finally, I should mention 1 further point.  It is argued by the Government that CG 15 is a forward looking provision. According to the argument, customs and practices are by nature prone to change.  Given that the Lease had a long duration (75 years from 1 July 1898 with right of renewal for a further term of 24 years less 3 days), GC 15 should not be applied in a fossilised manner. 

80.I have no difficulty accepting that given the nature of GC 15 (land use control by the Government) the contracting parties must have anticipated that it would have to be applied to changing circumstances over time because customs and practices do not stand still.  It is a matter of degree.  It would not be right to apply GC 15 to a different landscape altogether (see St Marylebone Property Co Ltd v Tesco Stores Ltd & Ors [1988] 2 EGLR 40 at 42 F-G).  However, I do not believe that the present issue turns upon this argument. 

81.In my view, there is nothing in the factual matrix (see paras 65, 66 and 69 above) to suggest that Ashes were not regarded as human remains or that human remains should be interpreted in a way which departs from its ordinary and natural meaning. 

82.Before turning to the OZP issue, there are 2 more points to deal with briefly.  Firstly, the CV refers to “骸骨”.  It is common ground that it means human bones.  However, the Memorandum of Agreement signed by the contracting parties (see para 16 above) was in English.  Further, by looking at GC 15 and the CV side by side, it is clear that the CV is no more than a poor translation of GC 15.  For instance, the CV refers only to “金塔” (urns) and omits the words “or otherwise” in the English text. 

83.Mr Fung did not suggest that in the event of doubt over the meaning of human remains the court should consider the CV. However, he submits that the CV is helpful in terms of the aim and genesis of GC 15.  With respect, I do not find it helpful in this case to refer to the CV. 

84.Secondly, Ms Eu argues that the word “grave” in GC 15 covers columbarium niches, and relies on it as a further or alternative basis for the contention that the Columbarium contravenes GC 15. 

85.Whilst it is accepted that “grave” commonly refers to a burial place within the ground with a gravestone serving as a monument in memory of the departed, it is said that a wider meaning of “grave” is also to be found in general linguistic use.  The Shorter Oxford English Dictionary also defined “grave” as “Anything that is, or may become, a receptacle for what is dead”.  

86.It is further submitted that in the Hong Kong context, the columbarium niche of a cremated person together with the covering plaque is very often the only tangible monument for that person.  There usually is no other “grave” for a cremated person.  In such cases, the columbarium is the place that mourners visit for remembrance of the dead and for “gravesweeping”. Hence, the niche is to all intents and purposes the “grave”.  This argument places particular reliance on the context and purpose of GC 15.

87.On the other hand, Mr Fung submits that “grave” is necessarily a place of interment in the ground.  If one keeps an urn which contains the ashes of an ancestor at home, it would do violence to the language to refer to that home (or part of it) as a grave. 

88.First of all, I agree that it is straining the meaning of the word “grave” to cover a columbarium or columbarium niches. 

89.Secondly, under the terms of GC 15, there is a distinction between grave and the deposit of human remains in earthenware jar or otherwise (on the Lot).  A columbarium would fall within the latter.  There is no reason to conflate the two.

The OZP Issue 

90.The issue here is a simple one.  RSL says that RI is a Column 1 use (see para 22 above).  The Government accepts that HDT is a RI.  Further, according to the uncontradicted evidence of Dr Yau the storage of Ashes therein is an integral part of Taoist religious practice.  Relying on the foregoing 3 points, Mr Fung argues that the Columbarium is a permitted use under the OZP.  In short, the argument is that the Columbarium is part and parcel of HDT, which is a RI, and therefore the former is a permitted use. 

91.In para 26 above, the Government’s qualified acceptance of HDT’s status as a RI has been set out.  It is common ground that the issue here turns upon the proper construction of the terms “religious institution” and “columbarium” as used in the OZP.

92.There is no dispute that for the construction exercise this court may refer to various materials associated with the OZP which are contained in the bundles, including the Definitions of Terms adopted by the TPB (“DOT”), the Notes to the OZP (“Notes”) and Board Use Terms published by the TPB (“BUT”). 

93.This court has been referred to the Court of Appeal decision in Hero Ltd & Ors v The Director of Planning, unrep, CACV 231/2011, 17 July 2012.  The issue in that case was whether a columbarium might be permitted as a shrine under the OZP.  I am guided by this authority in terms of the step by step consideration of the relevant material in the construction exercise.

94.With respect, there is a fairly overwhelming case that “RI” and “columbarium” are treated differently in the OZP.  Under the DOT, those terms are respectively defined as :

RI

“any place or premises where in accordance with the practice of religious principles services are held or prayers said by congregations loyal to a belief”

columbarium

“any place or vault with niches or urns that contain the ashes of cremated bodies”.

95.According to the definitions, the essential characteristics of the respective uses are very different – the former is marked by the facilitation of religious services whilst the latter is marked by the facilitation of the keeping of Ashes.

96.Common sense dictates the different uses in question involve different considerations for planning purposes.  The most obvious is that the general population may not have strong adverse feeling about living in the neighbourhood of a RI.  That cannot be said about a columbarium.  Hence, the location of the former is unlikely (or less likely) to blight the value of neighbouring land. 

97.There is a very good summary of the planning considerations for columbarium contained in the public consultation paper on review of columbarium policy published in July 2011, para 34 of which[6] stated as follows :

“On the planning aspect, under the Town Planning Ordinance (Cap. 131), like any other developments, “columbarium” must conform to the requirements of the relevant statutory plans. In general, if a site is zoned for “Other Specified Uses” with an annotation of “Cemetery” or “Columbarium”, “columbarium” use is permitted as of right and planning permission from the TPB is not required. On a majority of the statutory plans, “columbarium” is a Column 2 use under the Notes for “Government, Institution or Community” and/or “Green Belt” zones. If these sites are to be developed for “columbarium” use, planning permission from the TPB under Section 16 of the Town Planning Ordinance should be obtained. For development of “columbarium” facilities on sites other than those covered above, a rezoning application has to be submitted to the TPB under Section 12A of the Town Planning Ordinance. In determining such application, the TPB will normally take into account all relevant planning considerations, including location under the application, land use compatibility, traffic and environmental impacts, as well as views from relevant Government departments. The public will also be consulted in accordance with the provisions of the Town Planning Ordinance. Depending on the circumstances of each case, the TPB may impose certain planning conditions when granting the planning permission. …”

98.As indicated in the consultation paper, columbarium is a separate use expressly permitted in other zones, eg, the “Government, Institution or Community” (“GIC”) zone (under Column 2) or area zoned “Other Specified Uses” (“OU”) and annotated for “columbarium” use.  The latter can be seen from two sites on OZP 28 in Area 26 next to the Tsuen Wan Chinese Permanent Cemetery and the Kwai Chung Crematorium[7]. 

99.There is a very useful table contained in the evidence of Ms Wong Yuen Sheung filed on behalf of the Government (exhibit “WYSO-8”), which provides a comparison of the land use zonings wherein RI and columbarium are permitted in accordance with the Master Schedule of Notes Used in Statutory Plans (“MSN”). It is clear that columbarium is intended to be a much more restrictive use compared with RI.  The former may only be permitted under 3 zonings, namely, (i) OU annotated Cemetery, Columbarium, Crematorium and/or Funeral Parlour (Column 1 use); (ii) GIC (Column 2); and (iii) Green Belt (“GB”) (Column 2 use)[8]. 

100.In contrast, RI is a common use that is permitted in the majority of the land use zonings in the MSN, including commercial and residential zones, either as Column 1 or Column 2 use.  In GIC and GB zones where columbarium may be permitted, RI is separately listed as Column 1 use under GIC and a Column 2 use under GB. 

101.The different treatment for columbarium and RI as demonstrated above goes a long way to show that the planning intention is that they are different uses and columbarium is not subsumed under RI.  

102.I was referred by Ms Eu to Raider Ltd v Secretary for Justice (2000) 3 HKCFAR 309 where the Court of Final Appeal held that paging service was not a permitted use in building for industrial purpose even though the paging service was only provided in respect of 10-20% of the pagers manufactured on the premises.  Relying on Raider, it is submitted that a use which is not permitted does not become permitted because there is another permitted use to which it relates. 

103.A very relevant illustration of the point can be found in the MSN on GB.  If there is a columbarium within a RI (Column 2 use) (see footnote 7 above), both the RI (another Column 2 use) and the columbarium use require planning permission.

104.I can find very little, if any, support for the proposition that since the Columbarium is an integral part of HDT it falls within RI use.  Whilst the Government accepts that it cannot be precluded that some RI may contain a small number of niches mainly for deceased ascetics, the facts here are very different.  The Columbarium has 26,000 niches, more than that allowed (20,000 niches) in an area designated for columbarium use – OU (Columbarium). 

105.I am unable to see that on a proper construction of the OZP, RSL’s argument can be right.  It is inconceivable that under the OZP a columbarium containing 26,000 or even 10,000 niches can be regarded as part of a RI.  If that argument were correct, Hong Kong can have columbaria springing up all over the Region as long as they can be said to be part of a RI. 

106.Finally, I would like to echo an observation by the Court of Appeal made in Hero Ltd, supra, at §12:

“If, as the applicants contend, a shrine can mean a columbarium – by which I do not mean a single columbarium but a purpose built, large-scale commercial columbarium inside which over 1,000 niches are housed, such as the Columbarium which the applicants operate on the Lots, it would be difficult to discern the good sense behind granting it the status of an always-permitted use”.

Conclusions

107.In the premises, the Summons is dismissed and I allow the Counterclaim (no objection has been advanced on any of the relief).  I make an order nisi that the costs of and occasioned by the Summons and the Counterclaim be paid by RSL with a certificate for 2 counsel to be taxed if not agreed. 

108.Last but not least, I am grateful for counsel’s assistance in these matters.

Mr Daniel R Fung SC, Mr Kevin Hon and Mr Gary C C Lam, instructed by Sidney Lee & Co, for the plaintiff

Ms Audrey Eu SC and Mr Abraham Chan, instructed by the Department of Justice, for the defendant