LEE, SAMUELTAK v. THE HONG KONG CHINESE CHRISTIAN CHURCHES UNION AND ANOTHER

HCAL27/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 27 OF 2008

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BETWEEN

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DECISION

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1.  There is the applicant’s application by summons dated 2 September 2008 for the issue of a letter of request in the USA against Lee Tak Yan (“TY Lee”) for the production of documents by him. TY Lee had been joined as the 2^nd respondent in these judicial review proceedings limited to the purpose of this application. The application is opposed by TY Lee. The 1^st respondent did not attend the hearing.

The judicial review application

2.  The subject matter of the applicant’s complaint in these judicial review proceedings is the laying of a plague in respect of Lee Hon Fai, deceased (“the Plague”) at the Pok Fu Lam Chinese Christian Cemetery at 125 Pok Fu Lam Road (“the Cemetery”). The Cemetery is a private cemetery managed by the Hong Kong Chinese Christian Churches Union, the 1^st respondent, in its capacity as sole trustee.

3.  In 1930, the 1^st respondent granted a licence for the use of the burial plot Nos. 1-8 and 26-33 at Terrace No.36, Section B of the Cemetery (“the Burial Ground”) to Lee Nam Kai Tong. Consequent upon a survey in 1967 and the ensued process of re-registration in 1973, the registered licensee of the Burial Ground was changed from Lee Nam Kai Tong to Lee Family.

4.  The plaintiff and Lee Hon Fai, deceased were cousins. TY Lee is the applicant’s elder brother. All three of them are members of the Lee Family.

5.  The Plague is placed at the foot of the platform slab of the combined tomb of Lee Hon Fai’s parents, which is located at burial plot Nos. 27 and 28 of the Burial Ground. It measures 1 foot x 1 foot and does not elevate from the surface of the ground. It was laid with the consent of the 1^st respondent.

6.  The crux of the applicant’s complaint is that the platform slab of the tomb of Lee Hon Fai’s parents together with the Plague, exceeds the prescribed maximum length for a platform slab at burial plot No. 27 by 1 foot and is therefore in breach of the 1^st respondent’s Cemetery Management Rules. The applicant says that the 1^st respondent’s decision not to take action against the Plague is Wednesbury unreasonable.

7.  In these judicial review proceedings, the applicant seeks a certiorari to quash the 1^st respondent’s decisions said to be contained in two letters dated 4 and 12 March 2008 and also a mandamus to compel the 1^st respondent to remove the Plague. The two letters of the 1^st respondent were replies to the Applicant’s letters demanding the 1^st respondent to take action against the Plague. In the letters, the 1^st respondent stated that the laying of the Plague did not breach its Cemetery Management Rules, and was done with its prior consent, and that as such, it was not in a position to take any enforcement action.

8.  On 7 April 2008, A Cheung J granted leave to the applicant to apply for judicial review.

9.  In opposing the judicial review application, the 1^st respondent’s case is that the Plague was laid within the size of the original grant of the burial plots of the Burial Ground, and that the overall length of the Plague and the platform slab now laid on burial plot No. 27 is only 7 feet, being 1 foot shorter than the permitted length under the pre-1954 grant.

10.  The 1^st respondent has also raised a number of objections to the judicial review application, including the locus standi of the applicant to bring the application and whether its decision is amenable to judicial review.

The O.39, r.2 application

11.  The present summons is made under Order 39, rule 2 of Rules of the High Court, cap.4A. By the application, the applicant seeks to have TY Lee, who resides in the USA, produced the certificates to plot Nos. 32 and 33.

12.  What happened was in 2004, a Settlement Agreement was made between a total of 11 sets of parties, including the applicant and TY Lee. Schedule 6 of the 2004 Settlement Agreement relates to the rights and use of burial plot Nos. 32 and 33 and the burial plot certificates to these plots. Under clause 4.1, TY Lee granted to the applicant the rights for him and his lawfully wedded wife (if any) to use (after their respective deaths) burial plot No. 32 for his/her burial ground, subject to the overriding permission of the 1^st respondent being granted for them to be buried in burial plot No.32. Clause 3.1. at the same time provided that TY Lee and his nominated representative, his personal representative shall hold and continue to hold the burial plot certificates for burial plot Nos. 32 and 33. By clause 2.1, the parties to the 2004 Settlement Agreement further agreed that TY Lee is the absolute holder and owner of these burial plot certificates and the absolute owner of the right to the use of burial plot Nos. 32 and 33 to the exclusion of all others.

13.  Schedule 6 of the 2004 Settlement Agreement is in evidence in these proceedings, being exhibited to the applicant’s 1^st affidavit. The affidavit filed on behalf of the 1^st respondent has raised no issue or challenge to the Schedule 6 of the 2004 Settlement Agreement.

14.  According to the applicant, the present application arises because of the issue of locus standi raised by the 1^st respondent. It is said that to properly answer the 1^st respondent’s challenge, the applicant has to produce a certificate from his Church and also the certificates to burial plot Nos. 32 and 33. In relation to the former, the applicant had in his 2^nd affidavit produced a certificate from the Kowloon Tong Church of the Chinese Christian & Missionary Alliance certifying that he was baptized in 1954 and is a member of that Church. As to certificates to burial plot Nos. 32 and 33, since they are held by TY Lee, who is in the USA, and he had not responded to the applicant’s request by letter for their production, the applicant therefore issued the present summons.

O.39, rr.1 and 2

15.  Before considering the application, it is necessary to set out Order 39, rules 1 and 2(1) of Rules of the High Court, pursuant to which the application is made. They provide:

“1. Power to order depositions to be taken (O. 39, r. 1)

(1)  The Court may, in any cause or matter where it appears necessary for the purposes of justice, make an order (in Form No. 32 in Appendix A) for the examination on oath before a judge, an officer or examiner of the Court or some other person, at any place, of any person.

(2)  An order under paragraph (1) may be made on such terms (including, in particular, terms as to the giving of discovery before the examination takes place) as the Court thinks fit and may contain an order for the production of any document which appears to the Court to be necessary for the purposes of the examination.

2. Where person to be examined is out of the jurisdiction (O. 39, r. 2)

(1)  Where the person in relation to whom an order under rule 1 is required is out of the jurisdiction, an application may be made-

(a)  for an order (in Form No. 34 in Appendix A) under that rule for the issue of a letter of request to the judicial authorities of the country in which that person is to take, or cause to be taken, the evidence of that person, or

(b)  if the government of that country allows a person in that country to be examined before a person appointed by the Court, for an order (in Form No. 37 in Appendix A) under that rule appointing a special examiner to take the evidence of that person in that country.”

16.  Counsel have no disagreement as to the relevant legal principles. It is, however, significant to note several features of the rules. Firstly, the thrust of Order 39, rule 1 is the receiving of evidence in the form of sworn depositions, before trial, of witness who will be unable to attend it. Order rule 2 extends the application of Order 39, rule 1 to witnesses who are out of the jurisdiction. Secondly, the exercise of the power under both rules 1 and 2 is discretionary: Warner v. Mosses (1880) 16 Ch D 100, 102. The power is only to be exercised “where it appears necessary for the purposes of justice”. In the case of an application for a letter of request under rule 2, as the costs involved is high and there may be questions of delays to ongoing proceedings, an important consideration in the exercise of the discretion is whether the witness can give substantial evidence material to an issue in the trial: Ehrmann v. Ehrmann [1896] 2 Ch 611.

17.  With these principles in mind, I turn to deal with the applicant’s application.

Reasons for decision

18.  The first matter to note about the application is that it was made not for the purpose of examining or obtaining a deposition from TY Lee. As is clear from the applicant’s 2^nd affidavit leading the application (paragraph 2), the application is directed solely at the production of the certificates to burial plot Nos. 32 and 33 by TY Lee. It is indicated that TY Lee will only be asked whether he has the certificates and then to produce the certificates. Indeed, there is nothing that the applicant will wish to or can examine TY Lee that will bear on the issue of locus standi or other issues in this judicial review application.

19.  However, the power in Order 39, rule 1(2) to make an order for production of documents is to be exercised when this “appears to the Court to be necessary for the purposes of the examination” under rule 1(1). It does not confer a general right and should not be used as a means to obtain discovery against a third party to the cause or matter in question: Panayiotou v. Sony Music Entertainment (UK) Ltd [1994] Ch 142, 153E-H.

20.  Here, the applicant is not seeking to carry out any or any substantive examination of TY Lee. The letter of request is for the sole purpose of obtaining from TY Lee the certificates to burial plot Nos. 32 and 33, which the applicant admittedly has not seen before. In my view, this is not a proper use of the procedure provided in Order 39, rules 1 and 2.

21.  That aside, being an application founded upon Order 39, rule 1, it must be demonstrated that the production of the burial plot certificates by TY Lee is necessary for the purpose of justice. The authorities had established that the issue of letter of request for taking evidence abroad is a serious matter involving great expense and delay, and the court would not lightly grant it. The evidence must therefore be directly material to an issue in the case and the order has to be necessary for the purpose of doing justice: Ehrmann v. Ehrmann at 614 and 616; FWC v. FSR [1992] 1 HKC 490, 495D-F; and Warner v. Mosses at 102.

22.  The primary objection of TY Lee to the present application is that the burial plot certificates are not of material relevance to the issue of the applicant’s locus standi to bring this judicial review application.

23.  The applicant’s justification for requiring the production of the burial plot certificates is that the 1^st respondent has wanted to see both the Pastor certificate and the burial plot certificates and that the 1^st respondent has considered it is not good enough for the applicant to have enforceable rights against TY Lee under Schedule 6 of the 2004 Settlement Agreement. It is said that to show that TY Lee has the burial plot certificates is an important aspect of the applicant’s case on locus standi.

24.  In my view, whether the burial plot certificates have any material relevance to the judicial review application is best resolved by reference to the applicant’s and the 1^st respondent’s case on the locus standi issue. The applicant’s case is set out under paragraphs 60 to 66 of his Form 86A. In summary, three points were made by the applicant. It is first said that the Plague limits the amount of space available for passers-by, who are likely to include members of the applicant’s branch of the Lee family. Secondly, it is said that the Plague will set a precedent leading to the consequence of diminishing the apparent importance of the applicant’s branch of the Lee family. Thirdly, it is said that the Plague significantly devaluates the burial right the applicant purchased under the 2004 Settlement Agreement.

25.  The 1^st respondent’s case on the locus standi issue appears at paragraphs 53 to 59 of the affidavit of Ho Kin Keung, which read:

“The Applicant and his locus standi

53.  Being an individual, the Applicant is not a Member Church of the Respondent.  Neither is the Applicant the original licensee of the said Burial Ground or any part thereof.

54.  In his grounding affidavit, the Applicant stated that he was baptised at Chinese Christian & Missionary Alliance Church in Kowloon Tong (“this Church”) in 1954.  Presumably, he is a member of this Church.

55.  I confirm that this Church is a Member Church of the Respondent and its members are eligible for burial in the Cemetery.  However, the Respondent does not keep register of individual members of its Member Church.  The Respondent relies on a certificate of membership issued by the principal pastor of the Member Church as proof of eligibility when a deceased person requires a burial site.

56.  Further in case of family burial site, the Respondent also relies on similar certificate by the principal pastor as proof of family relationship.

57.  The Respondent is not aware of any internal arrangement within the Lee Family as to how the use and enjoyment of the said Burial Ground should be used and, even if it were aware of the same, the Respondent is not bound.

58.  Therefore without all the Pastor’s Certificates and without production of the Burial Plot Certificate by a relative of a deceased person, the Respondent cannot say whether such deceased person is eligible for burial inside the Cemetery at the location stated in the Burial Plot Certificates.

59.  I verily believe that the decision of the Respondent not to accede to the Applicant’s demand is not amenable to judicial review.”

26.  In the earlier part of the affidavit at paragraph 51, it is pointed out that the Cemetery is a private property and all visitors to it are licensees with no interest in the land within the Cemetery. Paragraphs 8 and 9 further point out that the duties and obligations of the 1^st respondent are only owed towards its members who are confined to Chinese Christian Churches in Hong Kong and that at no time has the 1^st respondent had natural person(s) as its members. It further states that members of the public are not and have never been permitted to become members of the 1^st respondent and that members of the public are also not entitled to the grant of licence for a burial plot in the Cemetery.

27.  The gist of the objection of the 1^st respondent on the issue of locus standi is that the Cemetery is on private land and its management, including the application of its Cemetery Management Rules, is a matter between the 1^st respondent and its member Churches. The 1^st respondent says that it is not a public authority or body and it does not exercise public power. As such, the applicant, who is neither a member of the 1^st respondent nor its licensee, does not have sufficient interest to challenge its decision on the management of the Cemetery.

28.  In light of the applicant’s case on his interest in bringing the judicial review, it is difficult to see how the production of the certificates to burial plot Nos. 32 and 33 will advance or improve his position on the issue of locus standi. In the same vein, having regard to the 1^st respondent’s case, it is hard to understand how the production of the burial plot certificates can assist the applicant to meet the objections.

29.  The emphasis of the applicant’s case for requiring production of the burial plot certificates by TY Lee is that the 1^st respondent has in the context of its challenge to his locus stand, demanded the applicant to produce the Pastor’s certificate and the burial plot certificate. In so contending, it seems the applicant is relying on paragraph 58 of Ho Kin Keung’s affidavit.

30.  However, paragraph 58 has to be read in the context of the paragraphs preceding it. What is stated in that part of the affidavit is that the Pastor’s certificate is to prove a deceased person’s membership of a member Church of the 1^st respondent and, in the case of family burial site, the deceased person’s family relationship. And as for the burial plot certificate, it is to prove that a deceased person is eligible to be buried in the Cemetery at the location stated in the burial plot certificate. The affidavit points out that the 1^st respondent does not know and is not bound by the internal arrangement within the Lee Family as to the use of the Burial Ground. It then goes on to say in paragraph 58 that, without production of the Pastor’s certificate and the burial plot certificate by a deceased person’s relative, the 1^st respondent cannot form a view as to whether such a deceased person is eligible for burial inside a particular location in the Cemetery. The reference to the Pastor’s certificate and the burial plot certificates is therefore to explain the 1^st respondent’s operations in relation to the administration of the Cemetery. The 1^st respondent is not saying that without the production of the Pastor’s certificate and the certificates to burial plot Nos. 32 and 33, the applicant lacks the necessary interest to bring the judicial review application. Hence, there is no basis for the argument that the production of the burial plot certificates is required by the 1^st respondent.

31.  On the other hand, even assuming that the applicant’s right to be buried in burial plot Nos.32 is engaged in the dispute over the issue of locus standi, the production of the burial plot certificates by TY Lee cannot alter the fact that the applicant himself does not have, and has no or no present right to, the certificates. And if indeed, as the applicant seems to suggest, the 1^st respondent’s challenge stems from the fact that the applicant does not have the burial plot certificates, the production of the certificates pursuant to a letter of request does not meet that challenge. This is because the fact remains that the ownership of, and entitlement to hold, the certificates, does not rest with the applicant but with TY Lee, a matter agreed to and acknowledged by the applicant in Schedule 6 of the 2004 Settlement Agreement.

32.  It is submitted that the importance of requiring TY Lee to produce the burial plot certificates is to establish that TY Lee does have the certificates. This however has no material relevance to the issue of locus standi having regard to the 1^st respondent’s grounds of objection, namely, the applicant is neither its member nor licensee and the 1^st respondent owes no duty or obligation towards him. The fact that TY Lee has the certificates to burial plot Nos. 32 and 33 does not address these objections.

33.  It should also be noted that the 1^st respondent has not in its affidavit challenged what the applicant stated in the Form 86A as to his right to use burial plot No. 32. All that is said in paragraph 57 of Ho Kin Keung’s affidavit is that the 1^st respondent is not concerned with, and is not bound by, the internal arrangement within the Lee Family.

34.  I should mention that after leave to apply for judicial review was granted, the 1^st respondent had by letter dated 30 April 2008 sought discovery of the certificates to burial plot Nos. 32 and 33. The applicant’s solicitors replied by letter dated 7 May 2008, stating that the certificates are held by TY Lee and that the 1^st respondent ought to have in its record copies of the certificates. By letter dated 9 May 2008, the 1^st respondent replied that it had not maintained such record. Significantly, however, the 1^st respondent did not in the letter further pursue the request for discovery. This goes against the applicant’s suggestion that the production of the burial plot certificates is to meet the 1^st respondent’s demand for the certificates.

35.  In short, it is not demonstrated that TY Lee’s production of the burial plot certificates and in turn the order sought is necessary for the purpose of doing justice. The necessary condition for the issue of a letter of request is thus not met.

36.  The applicant has also argued that the certificates to burial plot Nos. 32 and 33 are trust documents. I take this to mean that the certificates are held by TY Lee on trust for the applicant. Without deciding the correctness or otherwise of this contention, this is irrelevant to whether a letter of request should be issued because it will be wrong to invoke the procedure under Order 39 for the purpose of enforcement of a trust.

37.  TY Lee has also sought to oppose this application on the grounds that the judicial review application was not brought bona fide and that it has no merits. I am of the view that this court should not be seen to be usurping the function of the judge hearing the judicial review application and it should be extremely slow to express any view on the fides or merits of the judicial review. Also, in disposing of the summons, there is no need to dwell into these aspects as well as the argument that the present application is top undermine TY Lee’s rights and entitlement to the burial plot certificates.

Conclusion

38.  For the reasons set out above, the summons is dismissed. There is an order nisi that the applicant pays the costs of the 2^nd respondent with a certificate for two counsel.

39.  Since the 2^nd respondent’s involvement in these proceedings is limited to this application, it is appropriate to have a gross sum assessment of the costs. Accordingly, I direct that: (1) Within 14 days after the costs ordernisi is made absolute, the 2^nd respondent shall lodge with the court and serve on the applicant a statement of costs for gross sum assessment. (2) Within 14 days thereafter, the applicant shall lodge with the court his written comments on the statement of costs.