釋照月 v. SECRETARY FOR JUSTICE AND OTHERS

HCMP 496/2017

[2022] HKCFI 2293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 496 OF 2017

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HCA 595/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 595 OF 2019

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(To be tried together with HCMP 496/2017 as lead action

pursuant to the Order of 18 June 2021)

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DECISION

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INTRODUCTION

1.  These two sets of proceedings HCMP 496 of 2017 (“496 Action”) and HCA 595 of 2019 (“595 Action”) concern an unincorporated association known as Man Wa Tong (曼華堂) (“Man Wa Tong”). Man Wah Tong is a religious tong which maintains a Buddhist monastery with affiliate buildings known as Chuk Lam Sim Yuen (竹林襌院) at Fu Yung Shan (芙蓉山) in the New Territories.

2.  The two sets of proceedings have been ordered to be tried together, with the 496 Action being the lead action. The trial is due to commence on 31 August 2022, with 14 days reserved.

3.  On 26 April 2022, the Secretary of Justice sent a letter to the Court to seek leave of this Court for their attendance at the trial to be excused. This was opposed by the plaintiff in the 496 Action, and also by the 1^st and 2^nd defendants in the 595 Action, but supported by Man Wah Tong. As a result, this Court directed that the matter be dealt with at the PTR. This decision is only on the issue whether the Secretary of Justice should be excused from attending the coming 14 day trial commencing 31 August 2022.

THE TWO ACTIONS

The 496 Action

4.  The 496 Action was initially commenced on 6 March 2017 by originating summons by 釋照月 (“Sik”) against the Secretary of Justice as 1^st defendant (“SJ”), the Secretary for Home Affairs (“SHA”) as 2^nd defendant, and Man Wa Tong as 3^rd defendant.

5.  It is Sik’s case that Man Wah Tong holds assets under its name on a charitable trust, and Sik’s application is essentially for a “better administration order” under s 57A(b)(i) of the Trustee Ordinance (Cap 29) (“Ordinance”). Sik claims to be a “person otherwise interested in the trust” within the meaning of section 57A(a)(iii) of the Ordinance.

6.  The issue of Sik’s locus standi came before Lisa Wong J on 25 July 2017, when Man Wah Tong applied to strike out Sik’s claims which was supported by SJ. This led to Wong J’s decision of 6 September 2017 (“Wong Decision”). Pursuant to reasons set out in the decision, Wong J struck out Sik’s originating summons and dismissed all claims therein. Sik appealed against the Wong Decision. His appeal was allowed by the Court of Appeal. In the judgment of the Court of Appeal of 10 August 2018 (“CA Judgment”), Lam VP, as he then was, set aside the order of Wong J and remitted the striking out summons to Wong J for reconsideration.

7.  Thereafter, Man Wah Tong did not restore its striking out application and the 496 Action was then ordered by Louis Chan J to continue as if commenced by writ. Even though Man Wah Tong did not restore its striking out application, at present it still maintains that whether Sik has the standing or interest to commence Action 496 is a live issue.

8.  By the amended statement of claim in the 496 Action (“496 ASOC”), Sik applies for the following reliefs:

(1)  a declaration that Man Wah Tong is a religious (charitable) tong;

(2)  an order that SJ that in his capacity as parens patriae (protector of charities), to temporarily control of all current assets of Man Wah Tong including funds in its bank account at the Shanghai Commercial Bank;

(3)  an order that SJ to intervene, in his capacity as parens patriae (protector of charities) and to restructure, for the purposes of better administration of the trust, and to formulate an administration plan for Man Wah Tong.

The 595 Action

9.  On 4 April 2019, Man Wah Tong commenced Action 595 against its former employee/accounting clerk Jan Fung as 1^st defendant (“Jan”), a voluntary worker Pong Chung Wai (“Pong”) as 2^nd defendant, and SJ as 3^rd defendant seeking:

(1)  an order of possession of that part of the Land Lot known as “The Monk Yung-Chau Memorial Hall” (“Memorial Hall”) and mesne profits, against Jan and Pong jointly and severally;

(2)  a delivery up order against Jan for various documents;

(3)  damages against Jan and/or Pong;

(4)  an order for better administration of the religious tong upon recommendation or consultation of SJ in the latter’s capacity as protector of all public trust.

10.  Man Wah Tong has obtained summary judgment against Jan and have part of her pleadings struck out. Jan’s appeal was dismissed by Au-Yeung J.

11.  Jan and Pong have recently obtained leave to amend their respective defence and counterclaim by a consolidated amended defence and counterclaim (“595 AD&C”), in which they counterclaim against Man Wah Tong and its two managers, seeking the following:

(1)  a declaration that the status of the members of Man Wah Tong is invalid and that the members be removed;

(2)  a declaration that the status of the managers of Man Wah Tong is invalid and that they be removed;

(3)  a declaration that Pong is entitled to reside in the Memorial Hall during his lifetime;

(4)  that pursuant to Order 120 rule 1 of the Rules of the High Court/RHC, the managers and present members of Man Wah Tong be removed.

12.  Jan and Pong have set out allegations about the unlawful conduct of Man Wah Tong in Annex 2 of their 595 AD&C and the mismanagement of Man Wah Tong, and they seek the intervention of SJ, as protector of charities and public trusts although there is no specific counterclaim for such relief.

REASONS FOR SJ’S APPLICATION

13.  SJ’s reasons for being excused from attending the trial as seen in SJ’s letter of 26 April 2022 are as follow:

(1)  the two sets of proceedings concern allegations of mismanagement of Man Wah Tong, allegations of wrongful occupation of the Memorial Hall, which are factual disputes between the parties to which neither SJ nor SHA is privy to or has any personal knowledge and that SJ is not in a position to assist the court;

(2)  the claim for an order for better administration and/or reorganization of Man Wah Tong is premised upon the allegation that the same is not properly administered or managed by the incumbent manageresses, and whether such an order should be granted by the court would depend on whether there is evidence to prove to the satisfaction of the court of maladministration or management of Man Wah Tong and again this hinges on a resolution of factual disputes between the parties.

(3)  unnecessary public funds will be incurred.

14.  It seems clear from SJ’s submission that they do not wish to participate in the trial and will only step in upon this Court’s determination on factual disputes and such is based on, amongst other things, the following:

(1)  they do not have knowledge of the factual disputes[1];

(2)  they have limited/or resource or power to carry out any investigation of charities and it is a question of proportionality having to weigh up the public funds and resources to be expended on one hand, and the welfare/benefits brought by the public charity[2];

(3)  Apart from Sik, the other parties have experienced counsel to assist the parties, and the involvement of SJ would duplicate the work of the parties’ respective counsel and would not assist the Court[3].

15.  In paragraph 2 of SJ’s submissions, SJ has stated that he takes a neutral stance on behalf of SJ as well as SHA throughout the two actions save that SJ had supported Man Wah Tong’s striking out application in the 496 Action, and notwithstanding that SJ has filed a defence respectively in the two actions. Further, SJ reserves all rights to apply for relevant reliefs and orders to protect the charity as deemed fit, which they have also indicated in paragraph 29 of their defence in the 496 Action which was filed on 19 June 2019.

LEGAL PRINCIPLES

16.  Counsel for SJ, Mr To, has referred the Court to various passages in the textbook Tudor on Charities, 10^th Ed, 2015.

17.  As a start, the role of SJ in Hong Kong (formerly the Attorney General)[4] in relation to charities, has been described in a number of ways in 13-016, Tudor. Leaving out references to “Sovereign”, “Queen”, “Crown”, “his Majesty” and referring to “subjects” being members of public in Hong Kong, and substituting “SJ” for “Attorney General”, the role and duty of SJ as seen in 13-016 can be summarised as follow:

·  It is SJ’s duty as parens patriae, to protect property devoted to charitable uses;

·  SJ as parens patriae and represents all the objects of the charity;

·  As a rule the SJ is a necessary party to all actions relating to charities. It is the duty of SJ, as parens patriae, to protect property devoted to charitable uses, for all forensic purposes. He represents the beneficial interest, in other words the objects of the charity;

·  SJ’s duty as parens patriae is to intervene for the purpose of protecting charities, and affording advice and assistance to the court in the administration of charitable trusts;

·  SJ has duty to represent all absent charities; where those charities are identified individual charities and are not parties, SJ is in the nature of a trustee for them;

·  Where property affected by a trust for public purposes is in the hands of those who hold it devoted to that trust, it is the privilege of the public that the [SJ] should be entitled to intervene for the purpose of asserting, on behalf of the public generally, that public interest and that public right which probably no individual could be found willing effectually to assert, even if the interest were such as to allow it;

·  it is the duty of the SJ to assist the court, if need be, in the formulation of a scheme.

·  As parens patriae, it is the duty of SJ to watch every proceeding from the commencement to the end;

·  SJ has duty to see that justice is done to every part of the public as parens patriae;

·  SJ has duty not to suffer oppression to affect the interests of defendants, who are equally part of the public.

(underline added)

18.  Prior to the setting up of the “Charity Commission”, the role of the Attorney General in England as the protector of charities has been said to be “unlimited in theory and wide-ranging in practice”[5].

19.  It is however stated in 13-017 of Tudor that:

“The existence of a duty on or power in the Attorney General in relation to charities does not require the Attorney General necessarily to take action in all cases which that duty or power literally extends. In particular, his duties do not require the Attorney General to act in the perceived selfish interests of one specific charity or set of charity objects in all cases. Firstly, he might not do so if he considered that that would be contrary to the wider interest of charity. Secondly, he might form the view that the charity or its objects were or could or should be adequately protected in some other way. Thirdly, the Attorney General’s role in relation to charity is to represent the Crown in its parens patriae or quasi-parental role. As with all parental relationships there will be occasions when the parent (in this case the Crown as represented by the Attorney General) considers that a child (a particular charity or charitable interest) in its own interest and/or that of charity or the public more generally, should or will have to get by, or even perish, without full or any quasi-parental support. Fourthly, there must be an element of proportionality, as between perceived problem and the cost of the Attorney General attempting to resolve it.”

20.  It is further set out in 13-023, Tudor that where legal proceedings concerning a charity are brought by some other person, SJ may and may be required to be joined as a defendant to represent the beneficial interest in the charity, or may intervene in order to protect it. Charity in general, being established for a purpose rather than for persons, by definition has no individual beneficiaries, and even if those presently qualified to benefit from a specified charity can be sufficiently defined, they rarely have any enforceable rights in their capacity as beneficiaries.

21.  As seen in 16-045 of Tudor: SJ is as a general rule a necessary party to charity proceedings, and it follows that in all proceedings, in which the beneficial interest has to be before the court, he must be a party. It is further explained that SJ represents the beneficial interest and it follows that in all proceedings in which the beneficial interest has to be before the court, SJ must be a party. Charity proceedings are almost always proceedings in which the beneficial interest in the charity needs to be before the court, because they affect how it should be dealt with or who by. Hence, as a general rule, SJ is a necessary party to charity proceedings. Further, SJ represents all the objects of the charity, who are thus in effect parties through him.

22.  Further, the cases in which SJ’s participation is most likely are, as seen in 13-024, where maladministration has allegedly occurred, the trustees are in dispute, a question as to the charitable status of a gift or trust has been raised or a scheme is proposed.

23.  One of the authorities cited by Mr To is Ware v Cumberlege (1855) 20 Beav 530. In that case, the Attorney General had been made a defendant in the first instance, it being doubtful as to what charities were intended by the testator, but after it having been certified what the charities were, the charities were served and the charities accordingly appeared. The question then arose was whether the Attorney General should be kept before the Court and how his costs were to be provided for.

24.  Sir John Romilly MR had explained, at page 700,

“It is difficult to lay down any general rule, which shall be adapted to every case; there must be a great deal of discretion in these matters. The general principle which regulates them I take to be something of this description: the Attorney General represents all absent charities, and it is sufficient to have him here to represent all absent charities. But absent charities may obviously be of two different characters: they may either be under gifts to specified individual charities, or to charity generally. In case the gift is for charity generally, no one can represent it but the Attorney General, and he must be here to represent such general charities. When there are specified individual charities, then the Attorney General’s presence is not universally necessary; but it is required by the Court upon various occasions, as for instance, where any rules are required for the regulation of the internal conduct of the charity itself, such as the establishment of a scheme and the like; there the Attorney General is necessary for the purpose of aiding and assisting the Court in directing and sanctioning the general system and principle that ought to govern charities of those descriptions. But there are other cases where there is no question as to the conduct or management of the charities, but only where the charity is entitled to a particular legacy or not. In those cases, the Attorney General is rather in the nature of a trustee for those charities, and the Court prefers having before it the charities beneficially interested, for the purpose of putting their interests before the Court in the light which they consider most favourable to them….…”

25.  Having decided that the case before him was of the latter class of cases, the Master of the Rolls went on to say that “... there may be mixed cases in which it is impossible to lay down a rule beforehand, and in which the Court must act on the matter before it in such manner as, according to the best exercise of the discretion and judgment, it may think best calculated to promote justice”[6].

26.  The position as explained by the Master of the Rolls above more than 167 years ago in 1855 still holds good[7].

27.  There is no dispute on the above general principles.

MAN WAH TONG’S POSITION

28.  Mr Chong, on behalf of Man Wah Tong, supports the SJ’s application and submits that excusing SJ from participation in disputes until resolution thereof is in line with the established authorities, and in this respect, he has referred the Court to 4 cases in Hong Kong in which he had represented one of the parties.

29.  In Cheung Man Yu v Lau Yuen Ching & Ors [2007] 4 HKC 314, the issue was whether the “Tong” in question was a public charity, and although, the applicants sought an order for the “Tong” in question be administered by a Scheme of Trust and approved by SJ and for better administration, SJ declined to take part in the proceedings unless the “Tong” in question was determined to be a public charity. The applicant’s claim was dismissed by the court below but allowed on appeal, and the Court of Appeal declared that the “Tong” in question was a public charity.

30.  Thus, the facts in the above case were quite different. In the present case, there is no issue that Man Wah Tong is a religious tong and a charitable trust. In any event, L Chan J had taken the view that as the contention in that case was whether the “Tong” was a public charity, SJ should take part. Notwithstanding SJ’s absence, L Chan J then went on to consider the merits of the applicant’s arguments.

31.  In Ma Wah Yan & Anr v Dharma Realm Buddhist Association Inc & Ors [2005] 5 HKC 298, the core issue was whether certain properties registered in the name of the deceased were subject to a public charity for the advancement of Buddhism. Upon determining the issue, Au-Yeung J then adjourned the matter on the question of “better administration” of the trust property and that SJ was directed to submit a set of proposed directions.

32.  Again, the facts and issues in the above case were quite different from the present case, and as pointed out by Mr Wang, the case would seem to fall within the second type of cases referred to by the Master of the Rolls in Ware.

33.  In Re Kam Lan Koon [2015] 5 HKLRD 79, there was a trial of preliminary issues concerning 3 related legal proceedings, 2 of which concerned applications for order for better administration of a religious and charitable trust. SJ ‘s attendance was excused by the trial judge Lok J.

34.  The trial above concerned various preliminary issues in relation to the validity of a resolution expelling members of Kam Lan Koon, a religious charitable trust and an incorporated company. It was also agreed in pre-trial hearings that the adjudication of a few key preliminary issues could probably dispose of the disputes. Thus the preliminary issues were not concerned with any mismanagement or internal conduct of the charitable trust. There was also no dispute in relation to SJ’s attendance being excused.

35.  In Li Kim Sang Victor v Chen Chi Hsia [2016] 1 HKLRD 1153, the issue was whether landed property used for the purpose of a Buddhist retreat was subject to a charitable trust. As stated by Au-Yeung J in paragraph 17 of her judgment, the Judge had invited SJ to join in the case as second defendant in his capacity as protector of charities. SJ assumed a neutral role and for the purpose of assisting the court in dealing with the claims justly and in accordance with the applicable laws, SJ merely sent representatives to attend the trial on watching brief and submitted written opening submissions on the legal principles applicable to charitable interests.

36.  First, as pointed out by Mr Wang, the above case fell into the second type of cases referred to by the Master of the Rolls in Ware, in that the issue at the trial before Au-Yeung J was in relation to whether the landed property was subject to a charitable trust. It was not a trial concerning mismanagement or internal conduct of the trust. In any event, SJ did attend the trial on watching brief.

37.  Having considered the facts and issues of each of the 4 above cases, I am of the view that they do not assist the Court in determining whether SJ should be excused from the trial in the present case.

DISCUSSION

38.  These two sets of actions first came before this Court for case management directions on 18 June 2021. SJ was present. One of the issues at that hearing was whether the two actions should be consolidated and/or tried together. SJ had indicated to the Court at that hearing that he adopted a neutral stance and informed the Court that SJ would only be involved after a number of issues of facts were dealt with. However, according to the Court’s record, the Court then indicated that at that stage all parties should work together in relation to the estimated length of the trial, and that SJ could apply for not attending the trial later on. There was no application made by SJ then and there that their attendance for the trial should be excused, or that the trial should be split into two parts, first for determination of factual issues, and then for determination of whether a better administration order should be made. Subsequently, the Court directed that the two actions should be heard together, with the 496 Action being the lead action and trial dates for 14 days were fixed then and there.

39.  Since then, there had been hearings for interlocutory applications in each of the two actions, such as time summons and/or amendment summons. There was also a hearing on 17 September 2021 in relation to case management directions including whether another action HCA 1725/2020 should also be heard together with the 495 Action and the 595 Action. Suffice to say, SJ had made requests by letter for their attendance to be excused at those hearings, which were allowed by this Court there being no objections from the other parties.

40.  However, since the hearing on 18 June 2021, there has not been any proper summons taken out by SJ for their attendance at the trial to be excused. It was only on 26 April 2022 that they wrote to the Court to request for their attendance to be excused. After objections were received from Sik, Jan and Pong, SJ replied by letter on 16 May 2022.

41.  As a result of various letters, this Court directed that the parties lodged an agreed list of disputed issues prior to the PTR which was fixed on 21 July 2022 and that SJ’s application to be excused be heard at the PTR.

42.  In the 496 Action, the reliefs sought by Sik are mainly against SJ, and that all the witness statements in the 496 Action have been filed by end of September 2021. In my view, SJ’s application for attendance at the trial to be excused should have been made earlier.

43.  The parties have lodged a consolidated “Scott Schedule” of disputed actions in the two actions (“Scott Schedule”), containing a total of 21 issues, against which SJ indicated that they take a “neutral stance”.

44.  On a quick glance, there are at least the following issues which are in relation to the allegations of mismanagement and/or breach of fiduciary duty of Man Wah Tong:

(1)  Issue 5 – whether the existing members and managers of Man Wah Tong were or are qualified to take their current posts by virtue of the Abridged Regulations;

(2)  Issue 6 – whether the existing members of the Man Wah Tong were entitled to pass a resolution to invite 3 men namely Yeung Chun Kam, Lee Check Fan and Tang King Shing to become mmbers of Man Wah Tong

(3)  Issue 10 – whether existing members and managers of Man Wah Tong were entitled to incorporate and operate 歡喜心慈善會有限公司 and Chuk Lam Sim Yuen Company Limited to syphon off assets of Man Wah Tong for their personal interest and to the prejudice of Man Wah Tong;

(4)  Issue 11 – whether there was any irregularity in the use of the funds of Man Wah Tong during the period of suspension of operation of Man Wah Tong

(5)  Issue 14 – whether the slope remedial works for Guan Yin Grotto were conducted by the members and managers of Man Wah Tong through a related company 歡喜心慈善會有限公司 in breach of their duties;

(6)  Issue 15 – whether the members and managers of Man Wah Tong have been wrongfully blocking the road to Fu Yung Shan since March 2018;

(7)  Issue 16 – whether the existing members and managers of Man Wah Tong wrongfully used its funds to invest in securities in breach of their duties;

(8)  Issue 7 – whether the Abridged Regulations require any amendment due to change in social conditions;

45.  The allegations in the above issues are serious allegations being made by Sik, and they all concern management and internal conduct of Man Wah Tong. Further, I understand that there was at least no dispute in relation to the companies registration record of 歡喜心慈善會有限公司 and Chuk Lam Sim Yuen Company Limited.

46.  As seen in the Wong Judgment, Wong J has already set out in paragraphs 46 and 47 some of the allegations made by Sik in the 496 Action, and even though the Judge had struck out Sik’s originating summons and dismissed Sik’s claims, she had said in the “Postcript” in paragraph 91:

“As the interest which the Hong Kong public has in the proper administration of charities is protected primarily by SJ as parens patriae, I trust that the SJ would in such capacity consider whether the matters alleged by the applicant and set out in paragraphs 46 and 47 above should be looked into.”

47.  Thus, even though Wong J had struck out Sik’s claims on Sik having no locus standi, she had trusted that SJ would look into those allegations of Sik. There has been no evidence that SJ has done so.

48.  I also add that in the 496 Action, and in fact also in the 595 Action, it is not a case where SJ has been invited to intervene, SJ has in fact be named as a defendant. In particular, in the 496 Action, the reliefs sought by Sik are essentially against SJ. Man Wah Tong’s striking out application was supported by SJ, but SJ took no separate application to strike out any claims against them by Sik. They had in fact participated by filing a defence and a list of documents.

49.  In any event, apart from Man Wah Tong’s application to strike out Sik’s originating summons in the 496 Action, there have not been any applications by Man Wah Tong to strike out Sik’s claims on any other grounds, and in fact after the CA Judgment, Man Wah Tong had not even restored their striking out summons on Sik’s lack of locus standi.

50.  I accept that as Lam VP (as he then was) noted in paragraph 35 of the CA Judgment, that the stark reality is that under our present system, SJ has no resource or power to carry out any investigation. However, he has also pointed out that the recommendations in the Report of the Law Reform Commission on Charities have not been implemented since it was published in December 2013, ie over 8 years ago.

51.  In my view, by participating in the present trial will at least give SJ an opportunity to hear the evidence in relation to the internal management of Man Wah Tong and to grasp a full and wider picture of any problems (if any) , no matter what the outcome of the Court’s finding of each of the agreed disputed factual issues will be.

52.  In any event, there has been no order for any split trial, that the first part to be on finding of factual issues, and the second part, on determination as to whether to make a better administration order and if so, what orders/directions to make. Further, as indicted earlier, SJ has further reserved his rights in 2019 to make any appropriate application. The 496 Action was taken out 5 years ago, and the 595 Action 3 years ago. The allegations go back to even earlier. In my view, any further delay in bringing these two actions to an end would not accord with underlying objectives set out in Order 1A rule 1 of the Rules of High Court, and would not save costs. If a better administration order is indeed necessary, no doubt the earlier a scheme is formulated, the better.

53.  As said by Lord Simonds in National Anti-Vivisection Society v Inland Revenue Commissioners [1948] AC 31, at 62, cited by Mr To on behalf of SJ:

“One of the tests, and a crucial test, whether a trust is charitable, lies in the competence of the court to control and reform it. I would remind your Lordships that it is the King as parens patriae who is the guardian of charity and that it is the right and duty of his Attorney-General to intervene and inform the court, if the trustees of a charitable trust fall short of their duty. So too it is his duty to assist the court, if need be, in the formulation of a scheme for the execution of a charitable trust”

(emphasis added)

54.  Moreover, in the present case, it is not only Sik who is seeking a better administration order against SJ, but also Man Wah Tong albeit on different grounds. I understand that Man Wah Tong’s case is that due to change to social conditions, popularity and population of monks and nuns has reduced, and that the Abridged Regulations need to be amended, presumably to allow more non-monks and non-nuns to become members and/or managers. There is no indication as to SJ’s position to this in the Scott Schedule, in particular as to whether the proposed amendment will be in contravention of the purpose of a religious tong which has been granted a very valuable plot of land of some several hundreds of thousands of square feet and which also has over HKD 100 m of funds.

55.  Although SJ has filed no evidence, and has no positive case to put forward to the witnesses, the burden is on the party who puts forward the claim to prove the case. In my view, SJ, if he so wishes, has the right to cross examine the witness on credibility and it is up to SJ whether he wishes to do so. SJ has in the 496 Action put Sik to strict proof of his case.

56.  Mr To has referred the Court to Scott and others v National Trust for Places of Historic Interest or Natural Beauty and another [1998] 2 ALL ER 705 This was a case in which the plaintiffs issued a judicial review application against the National Trust over its decision not to renew deer-hunting licences over its Devon and Somerset lands. The plaintiffs’ application was refused on the grounds that the application to review the decision of the National Trust should have been bought as “charity proceedings” within the meaning of s 33(8) of the Charities Act 1993. The plaintiffs then issued “charity proceedings”, and that National Trust applied to strike out their claim, amongst other things, that the plaintiffs had no standing.

57.  Walker J in his judgment, had at 714 g-j, cited the 4 points made by Nicholls LJ in Re Hamption Fuel Allotment Charity [1989] CH 484 in relation to whether a person was “interested in the charity” within the meaning of s 33(1) of the 1993 Act. In relation to the 4^th point made by Nicholls LJ, Walker J commented that although the power (and on appropriate occasions the duty) of the Attorney General to intervene is beyond question, there may often be occasions when (on grounds of expense to public funds, or uncertainty as to the outcome or otherwise) the Attorney General to intervene may perfectly properly decide not to intervene. He then said that Parliament had plainly intended not to give the Attorney General a monopoly of proceedings for judicial monitoring of charities, referring to s 33 of the Charities Act 1993 and its predecessors.

58.  As I understand, for the 3^rd and the 4^th point being made by Nicholls LJ in the Re Hampton case he was referring to the statutory provision of s 33 in England, which we do not have. Thus Walker J’s comments have to be seen in that light, and in my view do not assist SJ in the present case.

59.  Mr To has also referred this Court to In Re Carnavon Harbour Acts 1793 to 1903Thomas v Attorney-General [1937] Ch 72. In this case, the application was taken out by the trustees to determine their powers under certain statutory provisions and the Attorney-General was named as defendant. The Attorney- General took an objection that the court ought not entertain the application at all, as this was not a case where the trustees had purported to exercise some power and some person was aggrieved by it. Farwell J had referred to the Attorny-General being parens patriae was the protector of all charities and that in that position, he was always in the position to move the court himself, in cases where some breach of a charitable trust was being committed, in order to prevent the continuance of that breach, and to have the matter put right. However, Farwell J said that those considerations in connection with charities did not touch the point he had to consider in the case before him. Thus the passage relied on by Mr To was not said by Farwell J in connection with charities.

60.  In so far as Ip Cheung-Kwok v Ip Siu Bun & Others [1988] 2 HKLR 247, it is quite clear that the then Attorney General’s attendance in the proceedings was excused when it was not intended by the Attorney General to argue that any of the subject properties were held upon charitable trusts.

61.  Mr To has also referred this Court to Hong Kong Housing Services for Refugees Ltd and Secretary for Justice, [1999] 3 HKLRD 510. What was said by Ribeiro J, as he then was, was as follows, at 514, A-D:

“It was clearly necessary for the Secretary for Justice to be served as the officer fulfilling the role previously played by the Attorney-General in representing the S.A.R. Government as parens patriae and so acting as protector of charities.

However, by letter received on the day of the hearing, the Department of Justice wrote to solicitors for the Liquidators stating that it "does not intend to oppose the application or be represented at the hearing today". While in the circumstances of the present case I have decided not to require attendance on behalf of the Secretary for Justice, I wish to make it clear that because of the important role of the Secretary as protector of charities, there should in future generally be representation from the Department of Justice at any hearing concerning the disposition of substantial charitable assets, at least at the initial stages of the hearing. The Secretary's representative should have an informed view of the merits of the application and be prepared to provide the Court with assistance as to the disposal of the matter.”

62.  Again, I do not see that above comments would help SJ in the present case.

63.  As for the case of Cheung Man Yiu v Lau Yuen Ching & Ors, as mentioned earlier, in fact Louis Chan J had taken the view that SJ should take part.

64.  Mr To has referred the Court to cases in which SJ did attend but took a neutral stance and also cases in which SJ attended and took a positive stance, such as supporting Man Wah Tong’s striking out application in the 496 Action, and also cases in which SJ attended and took a leading role, such as Secretary for Justice v To Kan Chi & Others [2000] 3 HKCFAR 481.

65.  Each case depends on its own facts. Further in the present case, although Man Wah Tong has been legally represented throughout, and Jan and Pong in the 595 Action are now also legally represented, Sik has throughout the 496 Action been unrepresented. As said earlier, the 496 action is the lead action and substantive reliefs are being sought against SJ by Sik. I do not think the involvement of SJ would duplicate the work of the other two counsel.

CONCLUSION

66.  The circumstances of each case are different. I bear in mind the issue of public funds and resources. As said earlier, the original estimate of 14 days was based on SJ’s participation. There should be duplication of evidence in the witnesses statements filed in the two actions. According to the latest trial templates, it does not appear that the oral evidence of the factual witnesses should take up the entire 14 days. Having weighing up the pros and cons, to ensure fairness between the parties and the benefits brought by public charity and the circumstances of the present case, I decline to excuse SJ for attending the trial. I also do not think merely holding a watching brief will be sufficient either to assist this Court or to discharge SJ’s duty as protector of charity.

67.  SJ appears in two capacities/roles, namely both for SJ himself and for SHA. Mr Chong on behalf of Man Wah Tong submits that SHA has no “constitutional duty” as SJ. However, in the 496 ASOC, Sik has made allegations against SHA and in paragraph 5 of his submissions, Sik submits SHA is the one who has the power to “enter and search” under section 14 of the Chinese Temples Ordinance if there is any contravention of the provisions of that ordinance or of any regulation made thereunder. In any event, the submissions made by SJ were made for both SJ and SHA and there has been no separate submissions made by SJ as to why SHA’s attendance should be excused if SJ’s is not. In the circumstances, my order will cover SJ’s attendance in both capacities.

68.  As to the costs incurred by this application, this will be reserved to be dealt with after the trial.