SECRETARY FOR JUSTICE (as representative of the parens patriae) v. SECRETARY FOR JUSTICE representing HKSAR AND OTHERS

HCMP4818/2001
(Please refer to HCMP562/1992 and
HCMP 2084/1994)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4818 OF 2001

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Chapter 17 - The Nature of Tsing Shan Monastery

17.1 In Part I of the trial I have already concluded that Pui Man Yau alias Sik Kwok Wah has no claim in any beneficial interest to Tsing Shan Monastery ("the Monastery") (see paragraph 11.28 in Chapter 11 supra).

17.2 In paragraph 12.28 I have further held :

"that Tsing Shan Monastery (excluding Tsing Wan Kun which I find is not part and parcel of Tsing Shan Monastery) has been run as a religious institution for the benefit of the public at large."

17.3 Since 1960 the Monastery has been registered under the Chinese Temples Ordinance upon the application of Tat On. However Mr William Tam, Secretary of the 2nd defendant, in the hearing on 23 January 2002 indicated to me that the 2nd defendant did not intend to intervene or otherwise involve in the legal dispute concerning the Monastery. It also has no interest to manage the Monastery or otherwise involve in the administration of the same notwithstanding the future arrangement of the trust.

17.4 In Part II of these proceedings I have re-arranged the parties as stated in the title hereinbefore with the addition of the Secretary for Justice in a different capacity representing the HKSAR Government. The proceedings have been re-numbered under MP4818 of 2001 by way of another Originating Summons for a number of reliefs in light of my findings in Part I. Further affirmations were filed therefor.

17.5 Here I am concerned with the nature of the Monastery and what Scheme of Arrangement should be made therefor. I shall deal with the nature of the Monastery in this chapter of my judgment and the Scheme of Arrangement in the next chapter.

17.6 After hearing the submissions of Mr Robert Tang SC, who appeared together with Ms Ada Chung for and on behalf of the plaintiff and Mr Malcolmn Merry, who appeared on behalf of the 1st defendant, I am satisfied that the plaintiff is entitled to Declaration 1(a) sought under paragraph 1 of the Amended Originating Summons, and that is :

"a declaration that the Monastery is and has at all material times been a public monastery under Chinese Customary Law and that the properties of the Monastery are and have always been held by and for the purpose of the Monastery as a public monastery."

17.7 Further, the plaintiff is also entitled to Declaration 2 thereunder, namely :

"a declaration that the Monastery is and has at all material times been a charity and that the said properties are and have always been under a charitable trust."

There is no controversy on the aforesaid two subject matters (i.e. in respect of public monastery and charity) and declarations therefor have already been made on the day of the hearing. The only problem is the nature of the properties now registered in the District Land Office under the name of the Monastery. I shall give my reasons and findings in turn for these three matters hereinbelow.

Public monastery

17.8 I am satisfied that the Monastery is a public monastery. I have previously decided in paragraph 10.13 that :

"From the evidence of Mr. Li Kwok Fu, there were a number of indications that Chan Chun Ting, after the establishment of the Tsing Shan Monastery, had been running it as a Ten Directions Monastery."

17.9 The claim of Pui Man Yau alias Sik Kwok Wah has been dismissed. The To clan or any clan or family did not claim any proprietary interest in the Monastery. There is no claim at all that the Monastery is privately owned by anyone. I therefore accept the submissions that the Monastery is a public monastery which is established for all the people of the Buddhist faith.

Charity

17.10 In Commissioners for Special Purposes of Income Tax v. Pemsel [1891] AC 531 at 583, Lord MacNaughton said :

".... How far then, it may be asked, does the popular meaning of the word 'charity' correspond with its legal meaning? 'Charity' in its legal sense comprises four principal divisions : trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community, not falling under any of the preceding heads. ...." (emphasis added)

17.11 In a case where a trust for the erection of a synagogue for religious educational and social purposes, it was held to be exclusively charitable on the ground that the social activities were merely ancillary to the strictly religious activities (see Neville Estates Limited v. Madden [1962] Ch. 832 at pp 851-853 per Cross J).

17.12 Further, it does not matter even if there were purposes which were not charitable provided they are merely ancillary to a main charitable purposes (see Incorporated Council of Law Reporting for England and Wales v. AG [1972] Ch. 73 at 84 per Russell LJ).

17.13 Thus, even if the Monastery had in the past in certain instance or instances offered the service of a Chai Tong ("齋堂") to Madam Law Sze Ku, it would not render the Monastery non-charitable as the Chai Tong could have been merely ancillary or subsidiary to their advancement of religion. In any event, a Chai Tong properly so called could be charitable in itself for the following reasons, namely :

(i) Trustees of the Mary Clark Home v. Anderson [1904] 2 KB 645 is a decision where a home for ladies in reduced circumstances was held to be charitable, although the home was established to cater for ladies 50 years old or above, possessed or in the actual enjoyment of a fixed yearly income of not less than ?25 and not more than ?55.

(ii) In In re Clarke, Bracey v. Royal National Lifeboat Institution [1923] 2 Ch. 407 at 411-413, it was held that the fact that, e.g. ladies in limited circumstances had to contribute to board and lodging, would not render the establishment non charitable.

17.14 There is no doubt that Law Sze Ku was poor. She could not afford $300. She had only $150 so she had to work. But that does not mean that those who could afford $300 was not poor and therefore a Chai Tong run for the benefit of such people could not be a charity. Further the fact that she was required to work would not matter. It is quite clear from the evidence that the arrangement was that she would be able to end her days there and that when she could no longer work she could still stay on in the Monastery.

17.15 Thus, I conclude also that the Monastery is and has at all material times been a charity and that the said properties are and have always been under a charitable trust.

The nature of the properties

17.16 In this chapter, I mainly have to deal with the declarations sought under paragraphs 1(b) and 1(c) concerning the nature of the properties of the Monastery and in particular how they were held, i.e. (b) whether they were held under a constructive trust for the Monastery or, further or alternatively, (c), under a trust for religious purposes for the benefit of the public at large. I shall deal with the latter situation under (c) first.

17.17 The properties of the Monastery can be divided into three groups :

"(1) Lots 417, 418, 440, 484, 559, 564, 565, 604 and 628 in D.D.131 by Chan Chun Ting in his personal name between 1910 and 1920

(2) Lots 718, 719 and 729 in D.D.131 acquired between 1925 and 1927 in the name of the Monastery with Chan Chun Ting as the trustee or manager thereof

(3) Lot 546 in D.D.132 acquired by Ho Miu Ching in her name in 1920"

17.18 After the death of Chan Chun Ting and Ho Miu Ching, by three memorials all dated 2 October 1936, the Monastery succeeded to all the properties referred to hereinbefore with the exception of Lot 719. (I have previously decided that this was only an accidental clerical slip and Lot 719 reappeared in the later memorials.) The trustees for the Monastery were Liu Wan, Tat Ngon and Tat On.

17.19 The main problem in this chapter concerned with properties under subparagraphs (1) and (3), i.e. properties registered under the personal names of Chan Chun Ting and Ho Mui Ching respectively. In respect of those other properties under subparagraph (2), which were purchased in the name of the Monastery, it is clear that they belonged to the Monastery and I have said in paragraph 12.25 that :

".... there should be no problem of such a settlement (settlement for the benefit of the Monastery)."

17.20 The beneficial ownership of the landed properties acquired in the personal names of Chan and Ho created a problem because "There is no equity in this Court to perfect an imperfect gift" (per Turner LJ in Milrory v. Lord [1862] De GF&J 264 at 274). However, when the properties were vested in the Monastery by succession, which was effective in vesting the legal title into the Monastery an apparently imperfect gift of any property is effective if two conditions are satisfied (see Strong v. Bird (1874) LR 18 Eq. 315) :

"First, the property given must have become lawfully vested in the donee, as where he becomes one of the donor's personal representatives, whether an executor or administrator, or is appointed a trustee of the property. Secondly, the donor must have manifested an intention to make a present gift of definite property (which include forgiving a debt), and this intention must have continued until the donor's death."

(See also Snell on Equity, 30th Edition, paragraph 7-50.)

17.21 I shall deal with the aforesaid second condition of intention first. In respect of Chan Chun Ting, I can infer from the evidence that there was such a requisite intention on his part. In paragraph 12.25, I said :

"For my part, I can infer from the evidence put forward before the Court that Chan Chun Ting had every intention to settle all properties even in his own personal name for the benefit of Tsing Shan Monastery."

There is no evidence to suggest that such intention had not persisted until Chan's death.

17.22 In relation to Ho Miu Ching, such an inference can also be drawn that Ho Miu Ching also had the intention of settling the properties in her personal name for the benefit of the Monastery. The tablet exhibited at B132 is significant.

17.23 Mr Li Kwok Fu in his expert opinion expressed that the expression of Yuen Kwok (“圓覺”) in the tablet connotes a person who has made significant contribution to a monastery. The donor's name was Ho Miu (“何妙”). The reasonable inference to be drawn is that this Ho Miu is Ho Miu Ching and thus the evidence is that Ho intended to make a gift of Lot 546 to the Monastery. This Lot has been used by the Monastery ever since. The aforesaid 1936 succession is also evidence that the understanding there and then was that the property was part and parcel of the properties of the Monastery.

17.24 In respect of the first condition that the property must have become lawfully vested in the donee, the plaintiff relied on section 29 of the New Territories Regulation Ordinance (Ordinance 34 of 1910) under which the 1936 succession was effected would be relevant. Section 29 provided that :

"In the event of the death of any person in whose name any land is registered otherwise than as a manager, if no grant of probate or administration of the estate of the deceased is made by the Supreme Court within three months after such death, the Land Officer, on ascertaining the name of the person who is entitled to such land in succession to the deceased person (hereinafter described as the successor), and on being satisfied that any estate duty which may be due has been paid, shall register the name of the successor, and upon such registration being effected the said land shall vest in the successor for all the estate and interest of the deceased person therein, or for such estate and interest as shall entered on the register by the Land Officer against the entry of the name of the successor ..." (emphasis added)

17.25 The registration was to be done "on ascertaining the name of the person who is entitled to such land in succession to the deceased person". I accept the plaintiff's submission that the inference to be drawn is that in 1936 the land officer who was responsible for that registration considered that those properties, though under the names of Chan Chun Ting and Ho Miu Ching respectively, actually belonged to the Monastery. In Phipson on Evidence, 15th Edition, paragraph 4-28, it has been said that :

"On the proof that a public or official act has been performed, it is presumed that the act has been regularly and properly performed."

17.26 Similarly, in In re James, James v. James [1935] Ch. 449, the title was vested in an administrator. It has been held that the vesting of the legal title in the donee does not have to be done by the act or volition of the donor. As the legal title has been vested in the Monastery, I accept the submission of counsel for the plaintiff that the first condition in Strong v. Bird has also been satisfied. Accordingly, I consider that the plaintiff is also entitled to the declaration under paragraph 1(c), namely :

".... a declaration that the said Properties are and have at all material times been held under a trust for religious purposes for the benefit of the public at large;"

Consequently, there is no need to go on to consider the question of constructive trust.

Costs

17.27 Counsel for the plaintiff made the following submissions in respect of costs, namely :

"(1) The Monastery is a well known land mark in Hong Kong.

(2) The ownership of the Monastery has been uncertain for many years. In Part I, the Court held that the 1st defendant [therein (i.e. Sik Kwok Wah)] has no interest in the Monastery. Unlike the Tsing Wan Kun, no family clan or Tso has laid claim to the ownership of the Monastery.

(3) The Monastery has not been properly maintained. No action has been taken by the Chinese Temple Committee under the Chinese Temple Ordinance.

(4) It is in the public interest that the beneficial ownership and/or the status of the Monastery be determined. It is only upon the effective determination of its ownership and status that proper action can be taken to safeguard the Monastery.

(5) It is in the public interest that the Secretary for Justice has acted. By order of the Court, she was made the 1st defendant as well, so that the possibility that the properties are bona vacantia can be covered. But this is not adversarial proceedings.

(6) As for costs of Part I, the Secretary for Justice has been awarded costs against Pui Man Yau alias Sik Kwok Wah at first instance and in the Court of Appeal. See para.2, B5. If, as seems likely, Pui Man Yau is not in a position to satisfy such costs, it is submitted that the Secretary for Justice should be indemnified out of the funds of the Monastery.

(7) The Secretary for Justice's own costs in Part I as well as the costs ordered against her at the trial of Part I should similarly be paid out of the funds of the Monastery. It is submitted that such an Order would be right for the reasons stated in 16.18 to 16.23. With respect, those reasons were valid then as now. The judgment of the CFA would not preclude such an order because the view of the CFA was that it was premature and not that it was wrong [in principle]. (See p.499H.)"

17.28 I accept the submissions of counsel for the plaintiff and I therefore make the following orders in respect of costs, namely :

1. the costs of the plaintiff in this application and of the summons dated 9 July 2001 be taxed on a common fund basis and paid out of the funds lodged in Court in the name of the Monastery;

2. all costs which the Secretary for Justice (the 2nd defendant therein) in Part I was ordered to pay to the plaintiffs and her own costs in Part I of the proceedings (in HCMP 562/92 and 2084/94) shall be paid out of the funds lodged in Court in the name of the Monastery on common fund basis;

3. all costs awarded to the Secretary for Justice on the 1st defendant (Pui Man Yau alias Sik Kwok Wah)'s counterclaim in Part I of the proceedings, including his appeal therefrom (in HCMP 562/92 and 2084/94 and CACV 47/99), to the extent the same is certified by the Secretary for Justice to be irrecoverable from him, shall be paid out of the funds lodged in Court in the name of the Monastery on common fund basis;

4. costs of the 1st defendant herein (Secretary for Justice representing HKSAR) to be paid out of the funds lodged in Court in the name of the Monastery on common fund basis;

5. the costs of and arising out of the application by the 7th defendant be borne by the 7th defendant and paid to the plaintiff to be taxed if not agreed on party and party basis;

6. there be no order as to costs in relation to the 2nd, 3rd, 5th and 6th defendants;

7. costs of the 4th defendant be reserved; and

8. the solicitors for the 7th defendant shall show cause as to why they should not bear the costs personally for the costs incurred by the 7th defendant. The solicitors for the 7th defendant shall file and serve upon the 7th defendant an affidavit within 21 days from the date hereof.

17.29 In respect of the matter in paragraph 8 of the Order of Costs hereinbefore, solicitors for the 7th defendant has since then filed a long affirmation explaining the circumstances in which they were instructed by the 7th defendant. It was served on the 7th defendant which has not replied thereto. From all the facts contended in the aforesaid affirmation, I am satisfied that the solicitors for the 7th defendant should not bear costs personally for the costs incurred by the 7th defendant and accordingly I have on 7 May 2002 made such an order in chambers to that effect.

17.29 The scheme of arrangement shall be considered in the next chapter upon proposal by the plaintiff.

Attendance before the Court on 23 January 2002 :

Mr Robert Tang, SC, leading Ms Ada Chung, DPGC of Department of Justice, for the Plaintiff

Mr Malcolmn Merry, instructed by Department of Justice, for the 1st Defendant

Mr William Tam, Secretary for the 2nd Defendant, in person, present

Messrs K.C. Ho & Fong, for the 3rd Defendants, absent

Mr Simon K.M. Lui, instructed by Messrs John Chan & Co., for the 4th Defendants

5th Defendant in person, present

6th Defendant in person, absent

Ms Annie Lai, instructed by Messrs Augustine C.Y. Tong & Co., for the 7th Defendant

Chapter 18 - Scheme of Arrangement

18.1 Since the last hearing on 23 January 2002 and my order of declaring the Monastery as a charity and/or a public monastery under Chinese customary law, counsel for the plaintiff has been working very hard on the proposed Scheme of Arrangement and numerous correspondences were passed between the parties.

18.2 It was submitted that in light of the history of the dispute on the management and control of the Monastery which was fully canvassed in my judgment in Part I of the proceedings, the Secretary for Justice as parens patriae, considered that it would be in the public interest and in the interest of the charity, for a Scheme of Trust to be established to govern the management of the Monastery and its assets. Under the Scheme there are the Custodian Trustee and the Management Trustees. I shall deal with the former first.

Custodian Trustee

18.3 The power of the Court to vest the properties of the Monastery on the Custodian Trustee is under Order 120, rule 1 of the Rules of the High Court and the power to sanction the Scheme is under rule 2. I shall set out rules 1 and 2 in full hereinbelow :

" Order 120
(HK) Charitable Trusts

1. Appointment or removal of trustee (O. 120, r. 1)

(HK) Where the appointment or removal of any trustee or any other relief, order or direction relating to any charity is deemed desirable, any person mentioned in rule 3 of this Order may make application by summons (without any information, action or petition) to the Court in chambers for such relief, order or direction as the nature of the case may require.

2. Powers of Court (O. 120, r. 2)

(HK) The Court may proceed upon and dispose of such application in chambers, unless it thinks fit otherwise to direct, and shall and may have and exercise thereupon all jurisdiction, power and authority, and may make such orders and give such directions relating to the matter of such application, as might now be exercised, made or given by the Court in an action regularly instituted, or upon petition as the case may require:

Provided that the Court may, where in the circumstances of any such application it sees fit, direct that, for obtaining the relief, order or direction sought for by such application, an information, action or petition, as the case may require, shall be brought or presented and prosecuted, and abstain from further proceeding on such application."

Vesting Order

18.4 In order to facilitate the immediate implementation of the Scheme, a Vesting Order should be made to vest all the properties of the Monastery in the Custodian Trustee of the Scheme. The Custodian Trustee, a trust corporation, which would have custody of the majority of the funds belonging to the trust and the legal title to all trust properties. The Secretary for Justice recommended that HSBC Trustee (HK) Limited be appointed as the Custodian Trustee of the Scheme on terms in Schedule 2 of the Order annexed hereto.

The Managing Trustees

18.5 Under Order 120, rule 2 the Court can make such orders or directions affecting the charitable trust of the Monastery. Alternatively, the Court has inherent jurisdiction over the execution of charitable trusts and power to alter or modify charitable trusts by schemes (see Hubert Picarda, the law and Practice Relating to Charities, 3rd Edition, 1999, pp 553-556).

18.6 Under the scheme proposed by the Secretary for Justice ("the Scheme"), there would be a body of 10 to 15 Managing Trustees who would be responsible for the management of the Monastery and its properties. Under the said proposed Scheme of Arrangement, the plaintiff had sought the views of the 2nd defendant, the 3rd defendants and the 4th defendants herein. The aforesaid defendants basically have no objection to the terms of the Scheme save for four points which I shall deal with hereinbelow :

(a) The 4th defendants insisted on the appointment of three members of the clan, family or tong of Tsing Wan Kun ("青雲觀”) as members of the Managing Trustees as opposed to not more than two members. The plaintiff is prepared to accept this suggestion but the 3rd defendants originally objected to the same but this was withdrawn in the hearing to-day. I accept the submission of Mr Edward Chan, SC, counsel for the 4th defendants that the role of the managers of Tsing Wan Kun as Managing Trustee is essential because the Monastery is physically within lot No. 416 which is owned by Tsing Wan Kun. Furthermore, the history of Tsing Shan Monastery and Tsing Wan Kun is such that there should be close co-operation between the two institutions in their management. Tsing Wan Kun is in essence of the same beneficial ownership as To Ka Yi Tso, and the Tso used to have three managers, one representing each branch of the clan. Thus To Ka Yi Tso and the Kun has always been managed by three managers and the limit of two members as opposed to three members would leave one of the managers out.

(b) The 4th defendants suggested that local dignitaries should be appointed that members of the Managing Trustees by the Director of Home Affairs in consultation with the managers of the To Ka Yi Tso. This suggestion was opposed by the 3rd defendants and the Director of Home Affairs. The Director considered that the interests of the To clansmen have been sufficiently represented by their three members of the Managing Trustees. I accept the suggestion of the Director and therefore there should not be any consultation with the 4th defendants in the appointment of the local dignitaries by the Director, and the Director should not be required to give any reason for his appointment over the veto of the 4th defendants if consultation is required.

(c) The 3rd defendants suggested that one of the Managing Trustees should be the Chairman of the Rural Committee of Tun Mun, or his designated representative. The Director of Home Affairs disagreed with the appointment of representative designated by the said Chairman as the Chairman is the principle representative figure in the rural sector of the district of Tun Mun. The Director's view is also supported by the 4th defendants. In my view it is inappropriate to further delegate the power of appointment by the Chairman of the Rural Committee. I accept the suggestion of the Director.

(d) The 3rd defendants suggested that they themselves should be the founding members of the Managing Trustees for life. The 4th defendants objected to this suggestion. The Director of Home Affairs does not see the need for such an appointment. This was withdrawn by the 3rd defendants in the hearing to-day. The Scheme itself does not provide for any particular member to be founding member. The 3rd defendants are not the founding members of the Monastery at all. The Monastary was founded by Chan Chun Ting himself way back in or about 1918. I accept the view of the Director of Home Affairs that there should not be any founding members of the Managing Trustees for life.

18.7 The Scheme of Trust also enabled the Monastery to be run together with Tsing Wan Kun under Clause 12(6). It restricted on the disposal and user of trust properties under Clauses 38 to 40. It also provided for the appointment of the new abbot of the Monastery by the majority decision of other members of the Managing Trustees under Clause 32.

Possession Order and order to accounts against the 5th defendant

18.8 I have explained to the 5th defendant time and time again and in particular at the hearing on 23 January 2002 that his claim to have any proprietary interest in the Monastery has already been dismissed in Part I of the proceedings.

18.9 The plaintiff, with the assistance of Liaison Officers from the District Office (Tun Mun), has attempted to secure the peaceful departure of the 5th defendant from the Monastery and arranged for another nun of the Monastery, Sik On Kin, to take over the management of the Monastery pending the establishment of the Scheme of Trust. Despite their efforts, the 5th defendant refused and still refuses to resolve the matter peacefully and indicated that he would not leave the Monastery before he was given a chance to study the judgment of the Court. Reference Sik On Kin who has been staying in the Monastery since the time of the late Mung Sang, also indicated recently that she would not participate in the management of the Monastery so long as the 5th defendant was still staying at the Monastery.

18.10 The 5th defendant has instructed Mrs Dora Chan of counsel to apply for an adjournment of the hearing to-day on the ground that the summons for to-day was only served on him on 16 May 2002. He wanted to obtain legal advice as to his residential right under a licence at the Monastery. I refused the application. My decision on his lack of any proprietary right in the Monastery was made way back on 26 November 1998. His counterclaim was dismissed. The plaintiff could have obtain a writ of possession against him on my aforesaid order of dismissal. The only course opened to the 5th defendant was to appeal against my judgment but the Court of Appeal has already dismissed his appeal.

18.11 Mrs Dora Chan further raised the point that there is a provision under the Scheme for the Abbot of the Monastery and he is the Abbot now. I am afraid this is a misreading of the Scheme when counsel was only instructed belatedly yesterday afternoon. The appointment of the new abbot of the Monastery shall be a matter for other Managing Trustees in accordance with the aforesaid Clauses 31 to 34. It is only proper and expedient to make the order of delivery or possession of Monastery against the 5th defendant when he refuses to leave the Monastery and to order him to account for all monies and/or other properties belonging to the Monastery which were received by him during his stay at the Monastery and his dealings therewith.

Disposal of exhibits

18.12 The plaintiff asked for the return of the original Sung Tip which was produced by the 5th defendant at Part I of the trial of these proceedings. I have indicated that I would like to hear the 4th defendants before deciding on the return of Sung Tip since it was originally given to Chan Chun Ting by the To clan.

18.13 The 4th defendants through their counsel submitted that the Managers of To Ka Yi Tso would like to have the same returned to the Tso. The history of the document is that this was the document whereby the Tos conferred a right to manage the Tsing Wan Kun on Chan Chun Ting only qua his capacity as the Taoist Abbot of the Kun for life. This document has never been part of the trust properties of the Monastery. Chan having died, the term of the office expired and the document being one executed by the members of the Tso should revert back to the Tso. It is the intention of the Managers to keep the document in proper custody and the Managers are prepared to give an undertaking to preserve the document and to display the same to the public in the future as part of the history of Tsing Wan Kun. The plaintiff, I was told by her counsel, Mr Robert Tang S.C., no longer applied for the return of the Sung Tip document anymore. I accept the 4th defendants' request upon their aforesaid undertaking given to the Court.

18.14 As to the Stone Tablet containing the so-called "Ross Ruling" which was removed from the Monastery, the plaintiff submitted that the Managing Trustees of the Scheme to be set up are the proper persons to decide if they wish to have the Stone Tablet returned for display in the Monastery or elsewhere. It was decided by me that the stone Tablet was a forged document. This exhibit can only be returned on the condition that the plaintiff shall use her best endeavour to secure an undertaking from the Managing Trustees that they will display the same in the Monastery or elsewhere with a clear explanation that this was a forged document and such written explanatory shall be approved by the Court.

18.15 Upon hearing the parties and perusal of the documents before me I have ordered in terms of the draft order annexed hereto.

18.16 Lastly I would like to thank all counsel who appeared before me on the two dates of the hearing of the trial in Part II herein for their assistance. The hearings were considerably shortened into two short hearings.

18.17 To my mind this is the end of the long litigation concerning the Monastery¹.

1 But I am afraid in respect of the Kun, one of the members of the To Clan has started another round of litigation by way of Judicial Review proceedings concerning the legality of a recent appointment of the managers of the Kun by the District Office. Both parties, I was told, have agreed on the appointment of a receiver for the Kun in the meantime. I shall deal with this matter tomorrow. However matters concerning the proprietary rights of the Kun and the Monastery should have come to an end.

Annex
HCMP No. 4818/01

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4818 OF 2001

___________________________

_________________________________

BEFORE THE HONOURABLE MR. JUSTICE YAM IN COURT

ORDER

UPON the Application of the Plaintiff by way of Summons filed on 14th May 2002

AND UPON READING the Affirmation of Chung Lai Ling, Ada, filed on 12th October 2001 and exhibit "CLLA-1" therein referred to and the Second Affirmation of Chung Lai Ling, Ada, filed on 14th May 2002 and the exhibits therein referred to

AND UPON HEARING Leading Counsel for the Plaintiff, Counsel for the 3rd Defendants, Leading Counsel for the 4th Defendants and Counsel for the 5th Defendant and the 2nd Defendant being absent

IT IS ORDERED that:

1. That the Scheme of Trust as set forth in Schedule 1 hereto respecting the charitable trust of the Tsing Shan Monastery be approved;

2. That HSBC Trustee (Hong Kong) Limited be appointed as the Custodian Trustee of the Scheme of Trust referred to in paragraph (1) above and be entitled to charge and be paid remuneration in accordance with the scale of fees set out in Schedule 2 hereto or otherwise as may be agreed to by the Managing Trustees of the said Scheme of Trust;

3. That the properties of Tsing Shan Monastery including:

a) Lots numbered 604, 417, 418, 440, 484, 559, 564, 565, 628, 718, 719 and 729 in Demarcation District numbered 131, and

b) The resumption monies following the resumption of Lot numbered 546 in Demarcation District numbered 132 by the Government in December 1977 lodged in the High Court and standing to the credit of the Tsing Shan Monastery;

do vest in HSBC Trustee (Hong Kong) Limited as the person holding the office of Custodian Trustee under the Scheme of Trust referred to in paragraph (1) above for all the estate and interest therein of the Tsing Shan Monastery upon the charitable trust of Tsing Shan Monastery under the Scheme of Trust;

4. That the 5th Defendant do deliver possession of the Tsing Shan Monastery at Castle Peak, Tuen Mun, to the Plaintiff forthwith;

5. That the 5th Defendant do account for all monies and/or other property belonging to the Tsing Shan Monastery which were received by him during his stay at the Tsing Shan Monastery, his dealings therewith and their present equivalent acquired or derived from the same (including all interest or earnings upon the same or accretion in value of the same);

6. That the Managing Trustees of the Scheme of Trust referred to in paragraph 1 above be entitled to trace, attach, recover and/or have transferred to them in specie all monies and/or other property, whether real or personal, revealed, upon the taking of the accounts referred to in paragraph (5) above, to be representing and/or acquired with or derived from monies or other property belonging to the Tsing Shan Monastery;

7. That the 5th Defendant do pay or transfer to the said Managing Trustees all monies and/or other property, whether real or personal, revealed, upon the taking of the accounts referred to in paragraph (5) above, to be representing and/or acquired with or derived from monies or other property belonging to the Tsing Shan Monastery;

IT IS FURTHER ORDERED AND DECLARED that the properties of the Tsing Shan Monastery, including:

a) Lots numbered 604, 417, 418, 440, 484, 559, 564, 565, 628, 718, 719 and 729 in Demarcation District numbered 131, and

b) The resumption monies following the resumption of Lot numbered 546 in Demarcation District numbered 132 by the Government in December 1977 lodged in the High Court and standing to the credit of the Tsing Shan Monastery;

are and have at all material times been held under a trust for religious purposes for the benefit of the public at large.

AND IT IS FURTHER ORDERED that an ORDER in respect of costs be made as follows:

1. the costs of the Plaintiff in this application be taxed on a common fund basis and paid out of the funds lodged in Court in the name of the Tsing Shan Monastery;

2. the counsel's fees incurred by the 4th Defendants in engaging Senior Counsel for attending the hearings on 3th August 2001 and 23rd May 2002 in these proceedings and in Part I of the proceedings (in HCMP 562/92 and 2084/94) shall be paid out of the funds lodged in Court in the name of the Tsing Shan Monastery on common fund basis;

3. all costs awarded against the 3rd Defendants in Part I of the proceedings (in HCMP 562/92 and 2084/94) and their own costs in Part I and this application shall be paid out of the funds lodged in Court in the name of the Tsing Shan Monastery on common fund basis; and

4. there be no order as to costs in relation to the 5th Defendant.

Dated the 23rd day of May 2002.

HCMP No. 4818/01

Schedule 1

SCHEME OF TRUST

In the matter of the charitable trust respecting the properties of Tsing Shan Monastery (青山寺or青山古寺or青山禪院) otherwise known as Tsing Shan Tsz or Ching Shan Monastery or Castle Peak Monastery (hereinafter referred to as "Tsing Shan Monastery")

SCHEME OF THE CHARITABLE TRUST OF
TSING SHAN MONASTERY

青山寺慈善信託管理計劃書

1. Short title

1. This document is called "Scheme of The Charitable Trust of Tsing Shan Monastery (青山寺慈善信託管理計劃書)(hereinafter referred to as "this Scheme").

Interpretation

2. (i) In this Scheme, unless the context otherwise requires:-

"appointer" means person or persons entitled to appoint Managing Trustees and the successor or successors of such person or persons;

"Court" means a court of competent jurisdiction of the HKSAR whether sitting in Chambers or in Open Court;

"Custodian Trustee" means a trust corporation which is appointed as the Custodian Trustee under Clause 5 hereof;

"Managing Trustees" means the Managing Trustees (信託理事會) appointed pursuant to Clause 9 hereof;

"Tsing Shan means Tsing Shan Monastery
Monastery" (青山寺or青山古寺or青山禪院) otherwise known as Tsing Shan Tsz or Ching Shan Monastery or Castle Peak Monastery. For the avoidance of doubt, Tsing Shan Monastery shall not include Tsing Wan Kun;

"Tsing Wan Kun" means Tsing Wan Kun (青雲觀).

(ii) Save where expressly otherwise provided, any reference in this Scheme to a post in Government shall include a reference to the successor of that post after a change of title of that post as a result of a re-structuring of the governmental framework or otherwise.

2. Establishment of Scheme of Trust

3. A charitable trust known as "The Charitable Trust of Tsing Shan Monastery" (青山寺慈善信託) on the terms and conditions set out in this Scheme (which charitable trust is hereinafter referred to as "the said Trust") was approved and established pursuant to the Order dated the 23rd day of May 2002 made by the Honourable Mr. Justice Yam of the High Court of Hong Kong Special Administrative Region in High Court Miscellaneous Proceedings No. 4818 of 2001 (which Order is hereinafter referred to as "the said Court Order").

Assets of the Trust

4. The assets and funds of the said Trust (which is hereinafter referred to as "the Trust Property") shall consist of:-

(1) all movable and immovable property at the date of the said Court Order held in the name of or in trust for Tsing Shan Monastery whether held jointly with other person(s) or not and whether held upon an express implied or constructive trust, including but not limited to the properties specified in the Appendix hereto;

(2) all moneys and property as may, on or after the date of the said Court Order, be donated subscribed or bequeathed to the said Trust and accepted by, or be otherwise acquired by, the Managing Trustees for the said Trust; and

(3) any income accumulated from any of the Trust Property.

 

Custodian Trustee

6. The legal estate of the Trust Property shall vest in the Custodian Trustee.

7. The execution of any document or instrument under seal shall be executed by the Custodian Trustee in its capacity as Custodian Trustee under its seal.

Objects of the Trust

8. The Trust Property shall be vested in and held by the Custodian Trustee and managed by the Managing Trustees upon trust for the general charitable purpose of promoting the tenets and doctrines of Buddhism and, ancillary thereto, also the tenets and doctrines of Taoism and Confucianism which are not incompatible with Buddhism. The scope of the general charitable purpose of the said Trust as aforesaid shall include but not be limited to the following objects:-

(1) to promote and foster belief in the tenets and doctrines of Buddhism and enlightenment and understanding as to Buddha's benevolence and the spiritual and practical application of the principles of the same and without prejudice to the generality of the foregoing, to keep and maintain the Tsing Shan Monastery (and if necessary, the surrounding grounds and/or buildings) in good condition for the public worship of Buddha and other gods or goddesses the worship of whom is compatible with Buddhism, and to promote and encourage the making of visits to the Tsing Shan Monastery and for that purpose to provide facilities of any description for the assistance and refreshment of visitors and travellers whether or not in return for payment;

(2) to undertake charitable services and to urge people to do good in conformity with the tenets and doctrines of Buddhism;

(3) to acquire establish keep and maintain monasteries or temples for the public worship of Buddha and other gods or goddesses the worship of whom is compatible with Buddhism;

(4) to preach promote and spread the doctrines of Buddhism and any accepted branches of such doctrines and to establish and maintain Buddhist cultural centres and to print and circulate religious publications for such purposes;

(5) to establish maintain and run non-profit making medical, educational and philanthropic facilities which shall be such as will encourage the greater understanding and acceptance of Buddhism;

(6) to provide dormitory and ancillary facilities for the resident abbot, monks and other staff of Tsing Shan Monastery and in the Managing Trustees' discretion, Tsing Wan Kun;

(7) to establish and maintain worship halls for the keeping of the ashes of deceased persons and/or tablets of deceased persons whether or not in return for payment and to hold or organize rites ceremonies and edifications or other religious or ritual services according to the customary rituals of Buddhism or Taoism or Chinese customs, whether such rites ceremonies edifications or services are to take place at the Tsing Shan Monastery or elsewhere;

(8) to construct and maintain columbariums cemeteries or pagodas (普同塔) or other structures for the keeping of urns for such ashes as aforesaid whether or not in return for payment;

(9) to support and assist such orphans and the poor according to such policy consistent with the tenets and doctrines of Buddhism which the Managing Trustees may from time to time decide to adopt;

(10) to carry out establish construct maintain improve manage superintend any non-profit making school or college or Buddhist temples or hospital or any other institution of similar objects; and

(11) to organize societies or groups to help Buddhists to intone Amitabha (助念團) and to save the lives of creatures (放生會).

Appointment of Managing Trustees

9. The Managing Trustees shall consist of not less than 10 nor more than 15 who shall be the following persons or classes of persons:-

(1) the Chairman of the Rural Committee of Tuen Mun;

(2) The Abbot of Tsing Shan Monastery;

(3) Not more than 3 members of the clan family or tong Tsing Wan Kun as may be appointed in writing by the registered manager(s) of Tsing Wan Kun, who may also appoint themselves or some of themselves;

(4) Not more than 1 person who is experienced in the management of Chinese temples as may be appointed by the Secretary for Home Affairs in writing;

(5) Not more than 1 representative of the Director of Home Affairs as may be appointed by the Director in writing;

(6) Not more than 3 persons of good religious standing or with good knowledge in Buddhism and not more than 1 person of good religious standing or with good knowledge in Taoism as may be appointed by the Secretary for Home Affairs in writing;

(7) Not more than 2 persons of good and reputable social standing not being Government officials as may be appointed by the Director of Home Affairs in writing; and

(8) Not more than 2 Tuen Mun District dignatories as may be appointed by the Director of Home Affairs in writing.

10. (1) The tenure of a Managing Trustee shall begin upon:-

(i) under Clause 9(1) upon his acceptance;

(ii) under Clause 9(2) upon his appointment as the Abbot of Tsing Shan Monastery;

(iii) his being appointed in writing pursuant to Clauses 9(3), (4), (5), (6), (7) and (8) above;

(2) such tenure shall continue:-

(i) under Clauses 9(1) and (2), until resignation of the Managing Trustee pursuant to Clause 14(1) or his removal by an order of the Court or until the earlier of, the cessation of his holding the requisite office, his becoming bankrupt within the meaning of the Bankruptcy Ordinance, Cap. 6, his mental incapacity or death;

(ii) under Clauses 9(3) to (8), for a term of 3 years or until resignation of the Managing Trustee pursuant to Clause 14(1) or his removal by his appointer in writing under this Clause or his becoming bankrupt within the meaning of the Bankruptcy Ordinance, Cap. 6, mental incapacity or death, whichever is the earlier. For the avoidance of doubt, a Managing Trustee appointed pursuant to Clauses 9(3) to (8) respectively shall be eligible for re-appointment upon expiry of term and may be removed in writing at any time at the absolute discretion of his appointer;

(3) in the event of a Managing Trustee vacating office pursuant to Clause 10(2), his appointer shall have power to appoint in writing a replacement, who shall upon such appointment become a Managing Trustee. Provided that in the case of Clauses 9(1) and (2), the successor of the requisite office shall automatically become a Managing Trustee;

(4) no person shall be entitled to act as a Managing Trustee until after his signature has been appended to a declaration in the minute book of the Managing Trustees indicating his acceptance and willingness to act in the trusts of this Scheme.

Powers of the Managing Trustees

11. Unless otherwise provided herein or by any law or statute, the Managing Trustees may act by a majority decision of its members present at a meeting.

12. The Managing Trustees shall for the purpose of achieving the general charitable purpose of the said Trust or any of objects stated in Clause 8 but not further or otherwise have power to do all things and to carry out all kinds of services or activities which include but are not limited to the following:-

(1) to acquire, accept leases or purchase, take, hold and enjoy any lands, buildings, messuages or tenements of whatever nature or kind and wheresoever situate for the objects of the said Trust, to accumulate the income of the Trust Property and to invest in accordance with Part II of the Trustee Ordinance, Cap.29;

(2) subject only to any restriction imposed in this Scheme, power to grant, sell, convey, assign, surrender, exchange, partition, yield up, mortgage, demise, reassign, transfer or otherwise dispose of any lands, buildings, messuages, tenements, mortgages, debentures, stocks, funds, shares or securities, or vessels or other goods and chattels, which are for the time being vested in or belonging to the said Trust, upon such terms as the Managing Trustees may see fit;

(3) to establish and upkeep farms of herbs, seeds, flowers, fruits, vegetables and trees for the purposes of display and research and for profit making;

(4) to solicit or accept donations and to take any gift of property, whether subject to any special trust or not, for any one or more of the objects of the said Trust;

(5) to promote and encourage the making of visits to any monasteries and temples dedicated to the furtherance of the tenets and doctrines of Buddhism or maintained by the said Trust for the better appreciation of the same and for that purpose to provide facilities of any description for the assistance and refreshment of visitors and travellers whether or not in return for payment; and

(6) to keep and maintain the Tsing Shan Monastery as a place for public worship and insofar as may be practicable and possible to operate or run the Tsing Shan Monastery together with Tsing Wan Kun and to enter into any engagement with the To Ka Yi Tso or the To clan to do so on such terms and conditions as the Managing Trustees shall think fit.

13. Subject to the provisions hereinafter and without limiting the generality of the above, the Managing Trustees are also specifically empowered to do all or any of the following things so far as conducive to the objects of the said Trust:

(1) to enter upon and take possession of the Trust Property;

(2) to take possession of, collect and give receipts for and protect all books, documents, papers, things in action and other assets of whatever nature comprised in the Trust Property;

(3) to select from time to time fit bankers and open and keep separate bank account(s) and lodge and maintain in such account(s) sufficient funds which in the exercise of their discretion they deem necessary to cover normal day to day expenditure, disbursements and such other expenses of the said Trust as exist or shall arise or are likely to arise from time to time;

(4) to undertake or to cause to be carried out repair renovation or refurbishment work to the temples, monastery and other structures and erections existing on the land of the said Trust;

(5) to grant leases or licences of the landed property of the said Trust or any part thereof for such rent, fee or profit and of such period and upon such terms and conditions as shall to the Managing Trustees appear reasonable Provided always That in any event neither this nor any other clause shall be construed as authorizing or otherwise permitting the grant of lease or licence in respect of any buildings or structures central or ancillary to the religious ceremonies rites or worship normally or from time to time carried out at Tsing Shan Monastery nor in respect of any land immediately adjacent to such buildings or structures;

(6) to manage the administration and general affairs and interest of the said Trust and to collect the book debts or monies due to the said Trust, to examine and investigate the books, records and affairs of the said Trust, to incur and to defray out of the Trust Property such expenses, wages, salaries, fees, expenditures and disbursements as shall be necessary for or incidental to these powers, to pay the just debt of the said Trust (including but not limited to any legal costs ordered by the Court to be payable out of the Trust Property in High Court Miscellaneous Proceedings 562/1992, 2084/1994 and 4818/2001) , to institute or to defend (as the case may be) any claims or legal proceedings for or against the said Trust as the Managing Trustees consider expedient or necessary and to defend any proceedings against the Custodian Trustee or any member of the Managing Trustees or the Abbot in the proper exercise of their duties, and to discharge and/or compromise all such claims or proceedings;

(7) to employ such persons or appoint such agents including professional agents upon such salary or remuneration and upon such terms as they may think fit for the purpose of carrying out their duties and powers under this Scheme;

(8) to seek directions or order from the Court in relation to any matter arising out of the management or administration of the said Trust (including an order for the amendment of this Scheme) as and when the Managing Trustees think fit;

(9) to employ a secretary ("the Secretary") with or without other supporting secretarial and/or clerical staff for the purpose of the smooth management or administration of the said Trust;

(10) to appoint as investment manager(s) any person(s) whom the Managing Trustees consider to be suitably qualified for the purposes of advising in respect of the investment of the whole or any part of the Trust Property and managing the investment thereof on a discretionary basis upon such terms and conditions as the Managing Trustees consider reasonably necessary for the purpose of securing the effective administration of the said Trust;

(11) to appoint sub-committees for any general or special purposes as the Managing Trustees may think fit which consist of one or more of the Managing Trustees and such other person(s) as shall be appointed or co-opted from time to time by resolution of the Managing Trustees but so that at least half of the members of any sub-committee shall consist of members of the Managing Trustees and the Chairman of any sub-committee shall be a member of the Managing Trustees. The Procedure of Meetings of the Managing Trustees as set out in this Scheme shall apply, mutatis mutandis, to meetings of sub-committees;

(12) within the limits prescribed by this Scheme the Managing Trustees shall have full power from time to time to make, alter and rescind regulations for the conduct of their business including the summoning of meetings;

(13) within the limits prescribed by this Scheme the Managing Trustees may at any time make such arrangements and make and frame such byelaws and rules as they shall in their discretion think fit for the administration of the said Trust and the management of the Tsing Shan Monastery or any part thereof, whether together with the Tsing Wan Kun or otherwise, and may at any time amend alter or repeal any of the said byelaws or rules as they may think fit; and

(14) without prejudice to the foregoing provisions, to carry out any other acts or things which the Managing Trustees consider as capable of being conveniently carried out in connection with the foregoing powers or objects of the said Trust or are incidental or conducive to the attainment of the objects of the said Trust or any of them.

Duties of the Managing Trustees

14. Without diminishing or exonerating the general duties of a trustee under the law, the Managing Trustees shall have the following special duties:-

(1) A member who intends to resign as a Managing Trustee shall give not less than three (3) months' written notice to other members of the Managing Trustees Provided that shorter notice may be acceptable in case of conflict of interest or other reasonable necessity to avoid prejudice or damage to the said Trust;

(2) All investments at any time belonging to or held in trust for the said Trust and not already standing in the name of the Custodian Trustee shall be transferred forthwith into the name of the Custodian Trustee;

(3) All sums of cash at any time standing to the credit of any of the bank accounts of the said Trust and not required by the Managing Trustees for meeting day to day running and management expenses shall be paid as soon as possible to the Custodian Trustee who shall invest the same in the name of the Custodian Trustee in trust for the said Trust in accordance with any direction given by the Managing Trustees;

(4) The Managing Trustees shall seek direction from the Court for amendment of this Scheme when necessary to preserve the interest or property of the said Trust or for the better management or administration of the said Trust; and

(5) The Managing Trustees shall provide and keep a minute book and books of account.

Procedure of Meetings of the Managing Trustees

15. The Managing Trustees shall at a meeting and as soon as practicable elect from amongst themselves a Chairman and a Deputy Chairman whose terms of office shall last until the first meeting after the anniversary of their appointment or until they cease to be Managing Trustees respectively. Provided that in the event of the Chairman or the Deputy Chairman vacating office upon expiry of their respective term, they shall be eligible for re-election.

16. The Managing Trustees shall convene meetings as follows:

(1) The first meeting shall be held no later than 3 months after the approval of this Scheme by the Court and the appointment of the first Managing Trustees other than the Abbot of the Tsing Shan Monastery;

(2) Not less than 4 regular meetings shall be held in each calendar year commencing from the date of approval of this Scheme;

(3) The interval between any two meetings shall not be more than 5 months; and

(4) Save as provided in sub-paragraph (1) hereof, a meeting may be convened at any time by the Chairman or the Deputy Chairman and shall be convened by the Chairman or the Deputy Chairman upon request of not less than 30% in number of the Managing Trustees.

17. Notice of meeting of the Managing Trustees shall be served by the Secretary upon each member at least 7 clear days (excluding Sunday and public holidays) before the date of meeting and every notice shall specify the place, date and time of such meeting and the agenda of such meeting.

18. Notice of meeting of an urgent nature (hereinafter called "Extraordinary Meeting") as the Chairman or, in his absence, the Deputy Chairman, may decide at his sole discretion may be convened by notice of less than 7 days but not less than 2 clear days (excluding Sunday and public holidays) and the notice so served shall be expressly marked as "Extraordinary Meeting" and as "Urgent Matter" on a conspicuous part of the notice.

19. Service of notices of meetings may be effected:-

(1) personally upon the members;

(2) by fax transmission to the fax number given by the member;

(3) by e-mail to the last known e-mail address of the member;

(4) by ordinary post addressed to the address given by the member; and

(5) by leaving the notice (under sealed envelope addressed to the member) at his last known place of residence or business or office

Provided that notice of Extraordinary Meeting shall only be effected by the means described in sub-paragraphs (1) or (5) above.

20. If the Managing Trustees resolve that they shall meet at specified intervals and the resolution specifies the place, date and time of such meetings, the Secretary shall serve a copy of such resolution, and a copy of any subsequent resolution of the Managing Trustees affecting the same, upon each of the Managing Trustees by such means as are referred to in Clause 19, and no further notice of meeting is required for each individual meeting.

21. The quorum at a meeting of the Managing Trustees shall be more than 50% of the number of Managing Trustees, unless otherwise resolved by the Managing Trustees.

22. A meeting of the Managing Trustees shall be presided over by the Chairman and in the absence of the Chairman, the Deputy Chairman or, in the absence of both of them, a member appointed among those present as chairman for that meeting.

23. All acts, matters or things authorized or required to be done by the Managing Trustees shall be decided by a resolution passed by a majority of the votes of the Managing Trustees present at a meeting or by written resolution signed by a majority of the members of the Managing Trustees whether on one same document or in separate copies of the same document.

24. At a meeting of the Managing Trustees, each member present shall have one vote on each matter being deliberated upon and if there is an equality of votes, the person presiding over the meeting shall have a second or casting vote. The Managing Trustees may vote in person or by proxy given to other members of the Managing Trustees who would attend the relevant meeting in person. Provided that members of the Managing Trustees shall declare their interest (if any) prior to a meeting and if any member of the Managing Trustees has any conflict of interest in the matter being deliberated upon, the member shall abstain from voting on the matter.

25. The Secretary shall keep minutes of the proceedings at every meeting of the Managing Trustees. The minutes shall be certified by the person presiding over the meeting as containing a true record of the proceeding of the meeting of the Managing Trustees to which they relate. The certified minutes shall be kept for record and shall upon request be available for inspection by any one of the Managing Trustees and any Managing Trustee may make and keep a copy of those minutes.

26. Subject to the specific provisions in this Scheme, the procedure at meetings of the Managing Trustees shall be determined by the Managing Trustees themselves from time to time.

27. Expenses for clerical or other supporting services reasonably required for carrying out the function and duties of the Managing Trustees shall be provided for out of the funds of the said Trust.

Functions of the Custodian Trustee

28. The management of the Trust Property and the exercise of any power or discretion in the said Trust shall vest and remain vested in the Managing Trustees.

29. The title of the Trust Property shall vest in the Custodian Trustee who shall have custody of all securities and documents of title relating to the same.

30. The Custodian Trustee shall concur in and perform all acts necessary to enable the Managing Trustees to exercise their powers of management and any other power or discretion vested in them, unless the matter in which the Custodian Trustee is requested to concur in is a breach of trust. In particular, the Custodian Trustee shall allow the Managing Trustees to have custody and control of sufficient fund for the purpose of the day to day running and management of the said Trust. Whenever the Managing Trustees desire that the Custodian Trustee shall concur in or perform any act necessary to enable them to exercise any power of management or any other power or discretion vested in them they shall embody in the resolution by which the matter is determined a request to the Custodian Trustee to concur in or perform such act and shall transmit to the Custodian Trustee a true copy of the resolution certified under the hands of the Chairman.

Abbot of Tsing Shan Monastery

31. There shall be an Abbot ("the Abbot") of the Tsing Shan Monastery. The Abbot shall ex officio be a Managing Trustee. The Abbot and his fellow assistants in religious services may be entitled to a monthly honorarium at such sum(s) as other members of the Managing Trustees shall decide upon. The tenure and power of the Abbot shall be determined by other members of the Managing Trustees in accordance with the tenets and religious practice and customs of Buddhism but subject to the final approval of other members of the Managing Trustees. The Abbot may be removed by an order of the Court or by the majority decision of other members of the Managing Trustees for mental or physical incapacity, misconduct or non-compliance with the resolution and/or direction and/or guideline of the Managing Trustees.

32. The first Abbot shall be appointed by the majority decision of other members of the Managing Trustees. Thereafter, the successor to the Abbot shall be appointed in accordance with the tenets and the religious practice and customs of Buddhism but subject to the final approval of other members of the Managing Trustees.

33. The Managing Trustees may refuse to approve any candidate as successor to the Abbot at their absolute discretion without assigning any reasons therefor.

Function and Powers of the Abbot

34. The Abbot shall be responsible for the day to day running and management of the purely religious matters of Tsing Shan Monastery, which include but are not limited to worship of Buddha and other gods and goddesses worshipped in the Tsing Shan Monastery and the holding or organization of rites, ceremonies, edifications or other services, and for the discipline and ranking of the religious staff but the Abbot shall be subject to the directions and guidelines given by the Managing Trustees from time to time. The Abbot may, subject to approval of the Managing Trustees, accept appointment by the registered managers of Tsing Wan Kun as the Abbot or Head of the Tsing Wan Kun and shall, subject to the directions and guidelines given by the Managing Trustees, so far as may be practicable and possible operate or run the Tsing Shan Monastery and the Tsing Wan Kun as one entity.

Costs of Administration of the Trust

35. All the proper costs, charges and expenses of and incidental to the management and administration of the said Trust and the Trust Property and all activities or services provided or carried out or performed in furtherance of any objects of the said Trust including the usual fees of the Custodian Trustee shall first be defrayed out of the income of the Trust Property but if at any time there shall be no such income then so far as may be out of the capital or other endowments of the Trust Property.

36. The Managing Trustees shall be reimbursed by the said Trust in respect of all proper costs and expenses but shall not be entitled to any charge, honorarium or fee except as the Court may approve.

37. The Custodian Trustee shall be allowed to charge remuneration at the rate as approved by the Court upon approval of this Scheme and shall submit its bill for services at regular intervals of about 6 months for approval by the Managing Trustees.

Restriction on Disposal and User of the Trust Property

38. Nothing in this Scheme shall (notwithstanding anything to the contrary herein expressed or implied) authorize the payment or application of the Trust Property or the income thereof, including the use of the land on which the Tsing Shan Monastery is presently situated, otherwise than to or for exclusively charitable purpose.

39. Except with the consent of all the existing Managing Trustees, the sale or transfer out of ownership of legal or beneficial interest of Lots numbered 604, 417, 418, 440, 559, 564, 565, 718, 719 and 729 in Demarcation District 131 shall not be made without the approval of the Court.

40. Except as provided in Clauses 38 and 39, all disposal in contravention of Clauses 38 and 39 shall be void.

Accounts

41. The Managing Trustees shall cause proper accounts to be kept of all transactions relating to the Trust Property and shall cause to be prepared for every financial year ending on 31st March in each year or such other convenient date as the Managing Trustees may resolve from time to time, a statement of the accounts of the Trust Property, which statement shall include an income and expenditure account and balance sheet.

42. The accounts of the Trust Property and the statement of account shall be audited by a certified public accountant and the auditor shall certify the statement subject to such report, if any, as he may think fit.

Exemption of Liability

43. A Managing Trustee shall incur no personal liability in respect of his acts or omissions as Managing Trustee except where he has been guilty of gross negligence, wilful or reckless default or misconduct. The Director of Home Affairs or his representative shall also incur no liability on his/her own behalf or on behalf of Government in respect of any of his/her own duties or obligations under this Scheme.

Law

44. The general and statute law as applicable in Hong Kong, in particular, the provisions of the Trustee Ordinance, Cap.29, shall apply to govern the said Trust save where the same has been modified by the express or implied provisions of this Scheme.

APPENDIX

(1) Landed Properties

3. Lots numbered 604, 417, 418, 440, 484, 559, 564, 565, 628, 718, 719 and 729 in Demarcation District numbered 131.

(2) Monies representing resumption monies and accrued interest arising from the resumption of Lot numbered 546 in Demarcation District numbered 132 by the Government in December 1977 presently lodged in Court in the total sum of HK$130,518,383.37 as at 6 May 2002 and all further interest accrued up to the date of the said Court Order.

Schedule 2