龐孟婷 v. 華人廟宇委員會

HCAL 506/2018

[2019] HKCFI 1457

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 506 OF 2018

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JUDGMENT

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1.  This is an application for leave to apply for judicial review.  Since I had some queries about the exact nature of the application, I decided to hold an inter parte hearing for the leave application.

2.  In the Amended Form 86, the Applicant applies for leave to apply for judicial review against an alleged omission of the Chinese Temple Committee (“CTC”) in contravention of ss 5, 6, and 8 of the Chinese Temple Ordinance (Cap 153) (“CTO”), and against the CTC for confirming to the Applicant the change of membership in Man Wa Tong (曼華堂) (“MWT”) on 26 February 2018.

3.  The Applicant seeks, inter alia, the following relief:

(i)   a declaration that the CTC’s confirmation as to the information received from MWT regarding the change of its members is unlawful and invalid;

(ii)   a declaration that the CTC must ensure compliance with the Articles of MWT (“Articles”) when verifying the membership of MWT and handling the management of Chuk Lam Sim Yuen (竹林禪院) (“Temple”) by MWT;

(iii)   an order that the CTC do fulfil its public duties under the CTO, and to take all necessary actions to ensure that the change of membership of MWT and the management of the Temple do comply with the Articles.

4.  I refuse the application for leave on 2 grounds:

(i)   there is no “decision” amenable to judicial review; and

(ii)   the court should not entertain this application for judicial review as other channels providing for redress have not been exhausted.

5.  Before I deal with these grounds, I first provide the background of this case.

Background

6.  This case arises out of a complaint relating to the alleged mismanagement of the affairs of the Temple and MWT.

7.  The Temple is a monastery founded by the late “釋融秋法師”, who was the Applicant’s grandfather, and managed by the members of MWT.

8.  According to the Applicant, she is a devout Buddhist who actively participates in the functions of the Temple.  Apart from her grandfather who was the founder of the Temple, her mother also assisted with the clerical duties and looked after the elderlies in the Temple.

9.  MWT is administered by its disciples and their successors, forming a t’ong (“Tong”), to hold and manage the affairs and properties of the Temple. The operation of the Tong and the management of the Temple are governed by the Articles made on 14 June 1985 by the then disciples and successors.

10.  Pursuant to s 5 of the CTO, which requires the registration of all Chinese temples, the Temple has been registered as a “Chinese temple” under the CTO shortly after January 1948.  Further, the Tongis exempted from tax liability as a “charitable institution or trust of a public character” by the Inland Revenue Department under s 88 of the Inland Revenue Ordinance (Cap 112) since 5 August 1985.

11.  In the judgment in the related case of 釋照月(Sik Chiu Yuet) v Secretary for Justice^[1], L Wong J has provided a detailed account about the history and the operation of MWT and the Temple.

12.  As a statutory body under the CTO, the CTC is vested with the statutory power and duty, subject to the provisions of the CTO, to control the management of Chinese temples in Hong Kong and the administration of their funds.

13.  S 6 of the CTO prohibits any person from taking any part in the establishment or maintenance of any Chinese temple established or maintained contrary to the provisions of the CTO:

“No person shall—

(a) take any part in the establishment or maintenance of any Chinese temple established or maintained contrary to any of the provisions of this Ordinance or of any regulation made thereunder; or

(b) take any part in the management or in the service of any such Chinese temple; or

(c) derive any profit from the revenue of any such Chinese temple; or

(d) knowingly supply any false or inaccurate information for the purposes of this Ordinance.”

14.  The CTC is established under s 7(1) of the CTO, which reads:-

“Notwithstanding anything in the Secretary for Home Affairs Incorporation Ordinance (Cap. 1044), the revenues, funds, investments and properties of all Chinese temples shall, subject to the provisions of section 8, be under the absolute control of a committee which shall be known as the Chinese Temples Committee.”

15.  The key power granted to the CTC under the CTO for control of the Chinese temples is found in s 7(6), which reads:-

“In order to make such control effective it shall be lawful for the Chinese Temples Committee, without prejudice to any powers that the committee may possess, to require any person other than the Secretary for Home Affairs Incorporated, who may be in possession or control of, or in whom may be vested, any property held on behalf of or for the purposes of any Chinese temple, to transfer or assign any such property to the Secretary for Home Affairs Incorporated.”

16.  Furthermore, the CTC is empowered to make regulations under s 3 for, inter alia: (i) the registration, management, control and inspection of Chinese temples; (ii) the management, control and audit of the funds of Chinese temples.  The CTC has only made 2 regulations so far, namely: (i) Chinese Temples Fund Regulations (Cap. 153A); and (ii) General Chinese Charities Fund Directions (Cap. 153B).  Neither of these regulations is directly related to the registration, management, control, or inspection of Chinese temples.

No “decision” amenable to judicial review

17.  I have some difficulty in understanding what exactly is the “decision” that is the subject of the challenge for judicial review.  Apparently, the complaint is that the CTC, by issuing the letter to the Applicant dated 26 February 2018 (“the Letter”) in reply to her enquiry about the membership of MWT, had wrongly confirmed the lawfulness of its membership change.

18.  If that is the case, the complaint is totally misconceived.  There was nothing in the Letter which indicated that the CTC had confirmed the lawfulness of the membership change.  In reply to the Applicant’s enquiry about the membership of MWT, the Letter only stated that: (i) according to the record of the CTC, the Temple sent a letter to the CTC dated 19 July 2014 stating that it had by then 6 members; (ii) according to an email in December 2017, the Temple notified the CTC that it had by then 4 members.

19.  Mr Ma, counsel for the CTC, submits that the CTC, not being a Government department, was not obliged to comply with the Code on Access to Information.  The provision of the information contained in the Letter was only done in the public interest of promoting transparency of public bodies.

20.  No matter what was the purpose of providing the information, the CTC, by issuing the Letter, was not making a determination about the legitimacy of the membership of MWT or the Temple, and so there is no decision amenable to judicial review.

21.  All along, the Applicant was not satisfied with the way in which the affairs of MWT and the Temple were managed.  She took the view that, contrary to the provisions in the Articles, the members of MWT were not properly appointed or chosen. Ms Ng, counsel for the Applicant, submits that the CTC should have known about these complaints.  The preamble of the CTO specifies that the object of such piece of legislation is “to supress and prevent abuses in the management of Chinese temples and in the administration of the funds of Chinese temples”.   As the CTC has extensive power under s 7 of the CTO, in particular s 7(6), the CTC should take an active role in investigating the complaints thereby preventing abuses in the management of the Temple.

22.  Nevertheless, the Applicant cannot identify what specific thing that she requires the CTC to do in the circumstances.  In my judgment, there is simply no “decision” which can be a subject for challenge in a judicial review.

23.  Indeed, most of the disputes relating to the management of Chinese temples are fact-sensitive.  They often require the adjudication of the courts in private civil actions or charity proceedings.  One of the cases in which I had dealt with such kind of claim was Tong Cun Ming & Ors v Cheung Sun Ling Sanny & Ors.^[2]  The applicants there challenged the internal management of a Chinese temple, which was a charity, and asked the court to exercise its supervisory jurisdiction over charities to make, inter alia, a better administration order for the management of the affairs of the temple.  In a related action[3], some of the members also challenged the decision of the management in revoking their membership of the temple.

24.  In fact, the management of the affairs of MWT and the Temple is the subject matter in the related action 釋照月(Sik Chiu Yuet) v Secretary for Justice.^[4] In that case, the plaintiff, a Buddhist monk, is seeking relief for the better administration of MWT as a charitable trust.  There is an issue as to whether the plaintiff does have the locus to bring the proceedings.  L Wong J held that he has no such locus.  The Court of Appeal allowed the appeal and remitted the matter back to the judge for re-consideration in light of the appellate judgment.

25.  Under the present regime, the CTC would be ill-equipped to resolve such kind of disputes.  It cannot make findings of fact or decisions which will be binding on all the interested parties.  There is also no mechanism under the CTO for the CTC to conduct formal hearings so as to entertain the arguments of the parties or to resolve the factual disputes between them.  Except for taking over the assets of a Chinese temple, the CTO does not provide for other powers for the effective discharge of its duties, such as requiring any person to provide information, making a better administration arrangement or replacing trustees and officers of the temple.  Under such circumstances, it would be prudent for the CTC to wait for the result of the legal proceedings before it decides whether to exercise the powers under the CTO to take over and control the assets of MWT or the Temple.  After all, these are draconian powers which involve private property rights, and the CTC may be accused for exercising such powers without observing the principles of natural justice.

26.  Hence, apart from the fact there is no decision amendable to judicial review, there is also no basis for the court to compel the CTC to act in the circumstances.

Non-exhaustion of other redress

27.  The second ground to refuse the leave application is a simple one.  It is trite law that the court will not generally entertain any application for judicial review unless all the other channels providing for redress have been exhausted.  As mentioned above, such kind of disputes relating to the internal management of Chinese temples can be and are usually resolved by private legal actions or charity proceedings.  I have also explained above why the CTC would be ill-equipped to resolve such kind of disputes.

28.  In 釋照月(Sik Chiu Yuet) v Secretary for Justice[5] which is still an ongoing legal action, the court is asked to examine the internal management of MWT and the Temple and to decide whether a better administration order should be made.  This clearly shows that there is other channel through which the Applicant can obtain redress for her complaint.  If the Applicant has the locus to pursue the present judicial review, I cannot see why she would not have the same locus to commence an action for a better administration order against MWT or the Temple.

29.  As there are other channels for redress open to the Applicant by way of private legal action or charity proceedings, I refuse to entertain the Applicant’s application for judicial review.

Other observations

30.  This case raises an issue about the role of the CTC in respect of the supervision of Chinese temples in Hong Kong.  So far as I am aware, most of the disputes relating to the management of the affairs of Chinese temples were resolved in the courts.  Under such circumstances, what is the role of the CTC?

31.  Without knowing the full background about its operation, it may not be too appropriate for the court to express any firm views on this matter.  As history speaks for itself, disputes relating to the management of Chinese temples are not uncommon.  Very often, the disputes involve different interpretations of religious and spiritual doctrines by different believers, and there may be wide differences and bitterness between the parties as to how they perceive their religious organisations should be run. The adjudication of such kind of disputes is by no means easy.  

32.  Whether the CTC should take up a more active role in supervising the management of different Chinese temples is a matter which calls for further debate.  However, with the existing statutory framework, the courts are more well-equipped to resolve the related disputes.  It is certainly a policy matter for the Government to consider how best to supervise the management of Chinese temples and to resolve the associated disputes.  In my opinion, whatever is the proposal, it should avoid parallel investigations by both the courts and statutory body like the CTC.  Duplication of efforts should be reduced to a minimum, otherwise the whole process would become a time-consuming and expensive one.  

33.  I also echo the observations made by Lam VP in the appellate judgment in 釋照月(Sik Chiu Yuet) v Secretary for Justice^[6] about the inadequacy of public supervision and accountabilities for charities in Hong Kong.  I would imagine that most of the Chinese temples in Hong Kong are also charities, and so the supervision of both Chinese temples and charities can perhaps be considered together.

34.  As pointed by Lam VP, there is a statutory body of Charity Commissioners in England who can conduct inquiries about the management of charities.  They have substantial quasi-judicial powers including requiring any person to furnish them with information, presumably for the purpose of making the necessary findings of fact.  They have the same, if not wider, jurisdiction and power as the court in charity proceedings to, inter alia, establish scheme for the administration of a charity, to appoint and discharge, or remove trustees or others officers of a charity.

35.  Instead of just relying on the common law jurisdiction and s 57A of the Trustee Ordinance (Cap 29), the English model may provide a better framework for the supervision of the management of Chinese temples in Hong Kong.  In fact, the Law Reform Commission published a report on charities in 2013 recommending the setting up of a charity commission.  Unfortunately, there has been no follow-up actions taken in response to the recommendations in the report.  Though inaction on the part of the Government authorities may not form a subject matter for judicial review, the recommendations deserve serious considerations as a matter of public interest. After all, these charities or Chinese temples may receive substantial donations for various purposes, and there should be a more effective mechanism to supervise the management of these entities in Hong Kong.

36.  Despite these observations, there is simply no basis to support any application for judicial review against any “decision” or determination by the CTC and I therefore dismiss the Applicant’s leave application. I also make a costs order nisi that the costs of this application be paid by the Applicant to the Intended Respondent, i.e. CTC, which shall be made absolute 14 days after the date of the handing down of this Judgment.