TO KIN WAH v. TUEN MUN DISTRICT OFFICER AND OTHERS

CACV 444/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 444 OF 2002

(ON APPEAL FROM HCAL NO. 105 OF 2002)

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J U D G M E N T

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Hon. Cheung J.A. (giving the judgment of the Court):

The proceedings

1. The applicant is a member of a t'ong called the Tsing Wan Kun.

2. The 2nd to 4th Respondents are the managers of Tsing Wan Kun ("the managers"). They were appointed as managers in a meeting held on 13 May 2001.

3. The 1st Respondent is the District Officer of Tuen Mun ("the District Officer"). He approved the appointment of the 2nd to 4th Respondents on 2 January 2002 under section 15 of the New Territories Ordinance ("the Ordinance").

4. On 10 April 2002 the applicant obtained leave to apply for judicial review to, among other things, quash the decision of the District Officer approving and registering the appointment of the managers and alternatively for an order requiring him to cancel their appointment.

5. On the date of the hearing of the motion for the judicial review on 28 October 2002, Chung J. set aside the leave and dismissed the notice of originating motion ("the motion") for the judicial review. The order was made pursuant to the application by the managers by summons issued four days before the hearing of the motion.

The appeal

6. The applicant now appeals against the decision to set aside the leave and the dismissal of his motion.

7. The District Officer had by summons dated 31 July 2002 asked that the question relating to the managers' appointment be tried as a private law action. In the light of the dismissal of the motion, Chung J. made no order on this application.

8. The District Officer now asks, by way of respondent's notice, that if the applicant's appeal is allowed, an order should be made in terms of his summons.

The basis of application for judicial review

9. The basis of the applicant's application for judicial review is that the decision of the District Officer was irrational in that he had failed to take into account relevant matters and he had also taken irrelevant matters into account. Five grounds are relied upon by the applicant in support of his contention.

10. First, in approving the appointment of the managers, the District Officer had failed to recognize that the managers were not properly appointed in that under Chinese law and custom of the To clan and/or Tsing Wan Kun the appointment of the managers must be made by the unanimous decisions of its members. The relevance of the To clan and To Ka Yi Tso (which will be referred to later on in this judgment) in this litigation is that the members of Tsing Wan Kun are members of the To clan and To Ka Yi Tso.

11. The applicant claimed that the managers were not appointed by the unanimous decision of the members but only by a majority.

12. Second, in a meeting dated 12 August 2001 it was resolved that the managers (who are also managers of To Ka Yi Tso) should approach the District Officer for registration as managers of Tsing Wan Kun. The applicant contends that,

（1） this meeting was not a meeting of Tsing Wan Kun;

（2） the notice calling this meeting was directed at the members of the To Ka Yi Tso and the To clan which are discrete and separate institutions;

（3） the notice did not specify that the agenda would be for the appointment of the managers of Tsing Wan Kun;

（4） notice of the meeting was not given to all the members including overseas members, illiterate members or members under disability.

13. The applicant contends that the District Officer had failed to consider these matters.

14. Third, the District Officer had failed to consider the integrity and propriety of the managers.

15. Fourth, the District Officer had considered irrelevant matters namely the managers would hold another meeting to discuss the appointment of additional managers.

16. Fifth, the District Officer had failed to ascertain whether the Chinese Temples Committee established by the Chinese Temples Ordinance had approved of the vesting of the control of the assets of Tsing Wan Kun in the managers.

Reasons for the application

17. The basis of the application to set aside the leave was that the applicant was doomed to fail in his application and there was material non-disclosure in his ex parte application for leave.

Reasons for setting aside the leave

18. The main reason why the leave was set aside was because the applicant did not have any expert evidence on Chinese custom on the requirement of unanimity in the appointment of managers by members.

19. As to question that the To clan, To Ka Yi Tso and Tsing Wan Kun are separate institutions, the judge held that this is in contrast with the applicant's own case in that he had stated that

“ I am a member of the To Ka Yi Tso. I am also a member of the To clan. Accordingly I a member of [Tsing Wan Kun]."

20. Further it was common ground that the membership of the three institutions overlaps.

21. As to the failure of District Officer to consider the lack of notice to all members particularly the overseas and disabled members, it was held that the applicant had never raised this with the District Officer prior to the judicial review application.

22. As to the failure of the District Officer to consider the managers' competence it was held that this was not supported by the chronology of events. Further the applicant had refused to meet with the District Officer who had invited the applicant to attend so that the matter could be investigated by him.

23. As to the last two grounds relied upon by the applicant, it was held that these were irrelevant matters.

24. Further, the managers argued that the applicant had failed to make full and frank disclosure. As the judge had set aside the leave on the substantive matters, he did not consider it is necessary to address this point.

Principles on setting aside leave

25. It is sufficient for the purpose of this appeal to refer to the following principles on setting aside the leave granted for judicial review :

1. Applications to set aside may be made on a number of grounds including want of reviewability, the existence of an alternative remedy, want of arguability and material non-disclosure such as the failure to disclose the existence of an ouster clause (R. v. Cornwall C.C., ex p. Huntington [1992] 3 All E.R. 566) or not pursuing an appeal when there were no exceptional circumstances making that course inappropriate (R. v. Law Society, ex p. Kingsley [1996] C.O.D. 59).

2. An application to set aside should only be made in exceptional circumstances such as where the respondent can demonstrate that the proceedings are fundamentally misconceived or doomed to fail (Re Wong Tung Kin [1989] 1 H.K.L.R. 93 or that there has been material non-disclosure. Orders setting aside the grant of leave will be made only in very plain cases (R. v. Bromsgrove Council, ex p. Judge [1992] C.O.D. 129). The application should be made, if possible, to the judge who granted leave if he is available.

3. Applications to set aside should be made timeously or not at all. Ng Enterprises Ltd v. Urban Council [1995] 2 H.K.C. 571 : R. v. Derbyshire C.C., ex p. Noble [1989] C.O.D. 285; R. v. Secretary of State for the Environment, ex p. Upton Brickworks Ltd [1992] C.O.D. 301. The grounds on which the application to set aside are made must be specified with particularity in the application (R. v. Lloyd's of London, ex p. Briggs [1992] C.O.D. 456. On an application to set aside the court should not permit the application to set aside to be used as a vehicle for rehearsing arguments that should be canvassed at a substantive hearing for that would defeat the purpose of the O.53 procedure which is to enable applications for judicial review to be heard within a short space of time.

See Hong Kong Civil Practice 2002, Para. 53/14/44

The present case

26. In the present case the application to set aside the leave was lodged virtually on the eve of the hearing of the judicial review and was heard on the very day when the judicial review hearing was to take place. This approach should only be undertaken in the most exceptional circumstances. On that day the judge had refused the application by the applicant to adjourn the judicial review. This being the case, the better approach should be to argue on the substance of the judicial review and not on the leave. To deal with such an interlocutory application at that stage would cause more delay. This is such a case.

Validity of the meeting of 12 August 2001

27. As indicated earlier, one of the matters relied upon by the applicant is the validity of the meeting of 12 August 2001.

28. The evidence produced by the managers and the District Officer revealed the following.

29. In a meeting of Tsing Wan Kun held on 27 April 2001, it was resolved that its managers should be appointed from the three big Fongs of Tso Ka Yi Tso and there should be two representatives from each Fong making a total of six representatives.

30. Further it was resolved at this meeting that the next meeting would be held on 13 May 2001; notice of the meeting would be given in the name of the managers of To Ka Yi Tso; each Fong was requested to summon its own meeting to appoint the two representatives to be appointed as the managers of Tsing Wan Kun whose names were to be submitted to the District Officer for registration.

31. Then in a notice of meeting dated 5 May 2001 addressed to the members of To Ka Yi Tso, it was stated that a meeting was to be called on 13 May 2001 and it was to discuss "the appointment of the representatives from each of the three Fongs as the managers of Tsing Wan Kun." (emphasis added)

32. In the minute of meeting of 13 May 2001, it was, however, recorded that the meeting resolved to appoint the existing managers of To Ka Yi Tso to be the managers of Tsing Wan Kun.

33. A notice dated 26 July 2001 called for a meeting of Tsing Wan Kun to be held on 12 August 2001. It stated that the purpose of the meeting was to separate the assets of Tsing Wan Kun in accordance with the decision of the Court of Final Appeal which had adjudicated upon the dispute on Tsing Wan Kun. The notice did not mention the appointment or registration of managers.

34. In the minutes of meeting of 12 August 2001, it was resolved that the managers should apply to the District Officer for registration as mangers of Tsing Wan Kun.

The relevant principles

35. The principles in respect of meetings of corporations are :

1. Where notice is given that a particular business will be transacted at a meeting, no other business can be embarked on at that meeting unless the whole body corporate is present and consents : Halsbury's Laws of England Vol. 9(2) Para. 1099.

2. The rationale is one of fairness. If a member does not know what is to be submitted at the meeting, he has not a fair chance of determining in his own interest whether he ought to attend the meeting, make further inquiries, or leave others to determine the matter for him : Tiessen v. Henderson [1899] 1 Ch. 861.

Irregularity in the appointment

36. The District Officer had in his possession the notices of meetings of 5 May and 26 July 2001 and the minutes of the meetings of 13 May 2001 and 12 August 2001 when he considered the approval of the appointment of the manager. He did not have the minutes of the meeting held on 27 April 2001. It is common ground that the minutes of meetings were not circulated to the members of Tsing Wan Kun.

37. If the District Officer did not have the minutes of the meeting of 27 April 2001, then obviously it cannot be said he had overlooked something in his decision making process. However, the other documents in his possession clearly revealed that something may have gone amiss in the eventual passing of resolution on the appointment of the managers. No doubt the managers are members of Tsing Wan Kun and each of them is a member of an individual Fong of the three Fongs from which the managers should be appointed. But this is not what the notice of 5 May 2001 had stated as to how the managers were intended to be appointed at the meeting of 13 May 2001.

The managers' argument

38. Mr. Liao S.C., counsel for the managers, argued that one must recognize the context in which the meetings were held. They were village meetings. They were to deal with the affairs of Tsing Wan Kun. The members of Tsing Wan Kun are also members of To Ka Yi Tso and the To clan. The members who attended the meetings were clearly aware of the nature of these meetings. The applicant has adduced no evidence on how meetings of the To clan should be held. The law on corporate meetings should not apply to these types of meetings. The applicant had also chosen not to meet the District Officer who was investigating the objections to the appointment of the managers.

Our view

39. These are forceful arguments. But it is important to bear in mind that the issue before the judge was on the setting aside of the leave and not a final determination of the judicial review. Leave was granted on the basis of arguable matters.

40. In order to set aside the leave, the managers has to show the applicant's case is doomed to failure. The approach adopted by the District Officer in relation to the appointment was to ensure that "overall the process can be said to be fair". Once this approach is adopted, then arguably the concept of fairness in relation to how a member should be informed of the agenda of a meeting should likewise apply to the meetings in this case. It cannot be said that the argument is bound to fail so that leave must be set aside.

41. The Amended Notice of Application to apply for judicial review ("The Amended Application") did not specifically deal with the notice of 5 May 2001 and the minutes of the meeting of 13 May 2001. However, as these two documents were expressly relied upon by the District Officer, then obviously this is a matter which the applicant is entitled to take even at this stage of the proceedings.

42. In any event, it is clear from the transcript below that although the former counsel of the applicant had conceded that there was no expert evidence on Chinese law and custom, he had maintained that, among other things, the challenge on the validity of the meeting of 12 August 2001 was still open to the applicant.

43. In our view, even on this basis, the applicant is still entitled to pursue his claim. Although the membership of the To clan, To Ka Yi Tso and Tsing Wan Kun overlaps, the Tso and T'ong are separate entities. They have different entities in the sense that they held different properties and had separate accounts and under different managements : Tang Yau Yi Tong v. Tang Mou Shau Tso [1996] 2 HKC 471. Whether a notice addressed to the members of To Ka Yi Tso and not specifically to that of Tsing Wan Kun is bad merits full argument at the final hearing of the judicial review.

44. Likewise, the content of the notice of 26 July 2001 has also put the dispute on agenda into focus. The validity of the meeting of 12 August 2001 is an arguable matter. This affects the decision making process of District Officer and the leave should not be set aside.

Full and frank disclosure

45. The managers argued the applicant had failed to disclose in his application for leave that in the case of Chan Choy Fong v. Secretary for Home Affairs Civil Appeal No. 149 of 1997 Nazareth V.P. had stated that managers appointed under Section 15 of the Ordinance could be by a majority of the members.

46. Section 15 of the Ordinance enables the District Officer, first, to approve and register the appointed managers and second, to cancel the appointment of the manager upon good cause being shown. In Chan Choy Fong, Nazareth V.P. in considering the ambit of this function stated that :

“ The way out, it seems to me, is for the members of the t'so to get together and appoint a manager, if not unanimous, then by a majority or conceivably even by a relatively substantial minority who are able to show that the appointment should be approved under the first limb."

47. The case of Chan Choy Fong was cited in the Amended Application although the above passage was not cited. It is clear from Chan Choy Fong that this Court was not faced with the issue of the method of appointing managers, i.e. whether it should be by an unanimous decision or by a majority of the members. What Nazareth V.P. said was clearly not laying down any principle of that nature.

48. In our view, it will go too far to say that in this case there was non-disclosure or that there was non-disclosure of a material kind which would affect the exercise of the discretion. A balance has to be struck on the nature of the material that is being considered. Save where the authority contains a principle which is directly on the point, we are not convinced that statements made by a judge in the course of deciding a case should be elevated to the level now seeks to be relied upon by the managers.

Alternative remedy

49. The managers argued that the applicant has not exhausted the statutory remedy of asking the manager to cancel the appointment under the second limb of section 15 of the Ordinance in that the applicant chose to apply for judicial review before the District Officer had reached a decision on the matter. As such judicial review is inappropriate : de Smith, Judicial Review of Administrative Action 5th Ed. at 20-018.

50. In our view this is an academic point because it is plain from what had transpired in this case that the District Officer would prefer to wait for a judicial adjudication on the underlining dispute of the validity of the managers' appointment before making a decision on the matter. Inevitably the applicant has to resort to the legal process of judicial review.

51. Furthermore the cancellation of the appointment is only an alternative relief. The applicant is entitled to pursue the challenge on the approval and registration of the managers.

The District Officer's application

52. As to the District Officer's application to turn the matter into a writ action, the matter is simply not within the ambit of Order 53 Rule 9(5) of the Rules of the High Court which enables the court to order judicial review applications seeking declaration, injunction and damages to be continued as they had been begun by writ. The present application asks for orders of certiorari and mandamus.

53. The District Officer has invited the applicant to pursue his claim against the managers in a private action. He informed the applicant that he will undertake to cancel the registration of the managers in the event that the applicant is successful in his action.

54. The applicant has challenged the decision of the District Officer in approving the appointment of the managers. This is a public law matter. While inevitably the process of election of the managers has to have examined, the challenge by the applicant against the decision of the District Officer to approve and register the managers entitles him to pursue a public law relief.

55. As to the undertaking of the District Officer, this is only in respect of the cancellation of the appointment. This is the alternative relief of the applicant. He has not abandoned the primary relief of seeking to quash the approval and registration of the managers.

56. The District Officer's application is accordingly refused.

Conclusion

57. As the leave should not be set aside, the applicant's appeal should be allowed. The orders below are set aside. The cross appeal of the District Officer is dismissed.

58. We have come to a different view from the judge. In fairness, we did so on the basis of the arguments of Mr. Wong S.C., counsel for the applicant, (who did not appear below) many of which were either not argued or not fully argued before the judge.

Costs

59. The application to set aside the leave and dismiss the motion was taken out by the managers. The applicant has successfully overturned the decision. The managers are to bear the costs of the applicant of the appeal on nisi basis.

60. The costs of the proceedings below should be in the cause.

61. The District Officer has failed in his cross appeal. He should bear the costs of the applicant and the managers of the appeal (again on nisi basis). In terms of apportionment of time taken by his application in the appeal, it is about one tenth of the total time spent on this appeal.