MAN MAN LING v. CHEN FANLIN AND ANOTHER

HCMP 1898/2019

[2022] HKCFI 3253

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1898 OF 2019

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DECISION

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THE APPLICATION

1.  This is an application made by the applicant herein for an order to join Madam Lee Yuk Mei (“Madam Lee”) as a respondent in these proceedings.

BACKGROUND

2.  The relevant background of these proceedings is set out briefly as follows.

3.  To Un (or Yuen) Tung (桃源洞) (“To Un Tung”) and Tin Shiu Tsun T’so (田邵邨祖) (“the Tso”) were originally established in the early 1900s for religious purposes and have been registered as religious T’ongs under section 15 of the New Territories Ordinance (Cap.97, Laws of Hong Kong).

4.  Madam Lam Shun (“Madam Lam”) and Madam Wan Lin Hei (“Madam Wan”) were appointed as the managers of To Un Tung and the Tso in 1968 and 1978 respectively.

5.  The applicant was born in 1963. She was raised by and lived with Madam Lam and Madam Wan at the premises of To Un Tung since she was around 2 years old until she got married in 1981. Even though she had moved away since then, she visited Madam Lam and Madam Wan regularly.

6.  To Un Tung and the Tso owned a number of properties (“the Properties”). In around 1988, as Madam Lam considered that the donations received from disciples were inadequate to support the running of To Un Tung and the Tso, she decided to rent out some vacant Properties. According to the applicant, she had assisted Madam Lam in managing the related tenancy matters (“the Tenancy Matters”) at the latter’s request.

7.  According to the Constitution of To Un Tung:

(1)  有份人 (members) of To Un Tung are selected by managers;

(2)  Those who have followed the managers since their infancy and have assisted in managing the affairs of To Un Tung are eligible to be selected as members;

(3)  Managers and members thereof together have the power to propose new managers.

8.  In 1996, Madam Lam and Madam Wan applied to the Tai Po District Office to appoint:

(1)  Mr Hung Fat Keung (“Mr Hung”) and Madam So Mo Kit (“Madam So”) as additional managers of the Tso;

(2)  the applicant and Madam Lee as members of the Tso.

9.  A similar application was made at around the same time by Madam Lam and Madam Wan to the Tai Po District Office to appoint Mr Hung and Madam So as additional managers of To Un Tung. Attached to this application was a list of members of To Un Tung in which the names of the applicant and Madam Lee were included.

10.  The above applications were approved by the Tai Po District Office in 1999.

11.  Madam Lam passed away in 2000. On 25 October 2005, Mr Hung informed the Tai Po District Office by letter about this and applied to cancel Madam Lam’s registration as a manager of To Un Tung and the Tso. In the lists of members of To Un Tung and the Tso which he attached to his letter, only the names of Madam Wan, Madam So and himself were included. The applicant and Madam Lee were not listed as members anymore.

12.  From around 2007, Mr Hung managed the Tenancy Matters all by himself without any assistance rendered by the applicant.

13.  Madam Wan passed away in 2014. On 8 June 2016, Madam So’s solicitors informed the Tai Po District Office about Madam Wan’s passing in writing. At the same time, they applied to appoint 先天道安老院 as a manager of both To Un Tung and the Tso in Madam So’s place because of her old age. In the lists of members attached to the said applications, only the names of Mr Hung and Madam So were included.

14.  However, the said applications were not completed yet when Madam So passed away on 22 November 2017.

15.  Since the demise of Madam So, Mr Hung became the only remaining manager of To Un Tung and the Tso.

16.  On 19 January 2018, Mr Hung informed the Tai Po District Office about the death of both Madam Wan and Madam So by letters. In the documents attached to the said letters, Mr Hung represented that he was the only remaining member of both To Un Tung and the Tso.

17.  Mr Hung passed away on 2 January 2019. After his death, a tenant of the Properties informed the applicant that he (the tenant) had been asked by the solicitors acting for an executrix of Mr Hung’s estate by letter to pay rent to Mr Hung’s estate, and the said letter seemed to suggest that such rental payment belonged to Mr Hung’s estate beneficially.

18.  As the applicant took the view that all the properties managed by Mr. Hung were owned by To Un Tung and the Tso rather than by him beneficially, she started to look into the matter, and discovered that her name had been removed from the lists of members of To Un Tung and the Tso in 2005. She therefore issued these proceedings in 2019 and applied, among other things, for a declaration that she is still a member of To Un Tung and the Tso. Ultimately, she would like to be appointed as a manager of To Un Tung and the Tso.

19.  The Secretary for Home Affairs, as the respondent in these proceedings, took the view, inter alia, that, as far as the claim for declaration is concerned, the applicant had sued the wrong party, because the Secretary for Home Affairs had no investigation power to verify or rectify the memberships of To Un Tung or the Tso.

20.  On 10 September 2021, the applicant took out a summons (“the Summons”) and applied for the following orders:

(1)  to join Madam Lee as a respondent in these proceedings;

(2)  that “the Secretary for Home Affairs do cease to be a party” to these proceedings.

21.  It seems to me that by asking for an order that “the Secretary for Home Affairs do cease to be a party”, the applicant is in fact applying for leave to discontinue her claim against the respondent. However, since that application has been adjourned sine die with liberty to restore, I do not have to consider that matter further in this Decision.

THE JOINDER APPLICATION

22.  In support of the Summons, the applicant filed her 3^rd Affirmation on 10 September 2021, in which she explained that she had been advised that Madam Lee should be added as a respondent because:

(1)  Madam Lee’s situation is similar to that of the applicant in that:

(a)  They were both raised by Madam Wan and Madam Lam since they were small, and were considered by Madam Wan and Madam Lam as the “adopted daughters” of To Un Tung;

(b)  While they were added as members of To Un Tung or the Tso in 1990s, their names had been taken away when the updated lists of members were submitted to the Tai Po District Office in 2005;

(2)  It would ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon;

(3)  There may exist a question or issue arising out of the stance to be adopted by Madam Lee in these proceedings, and such stance may be related to or connected with the relief claimed in these proceedings. Therefore, it would be just and convenient for the Court to determine such question or issue herein.

23.  In her Affirmation in opposition, Madam Lee admitted that:

(1)  She was indeed raised by Madam Wan and Madam Lam;

(2)  She had once been added as a member of To Un Tung and the Tso.

24.  However, Madam Lee also contended that:

(1)  According to her understanding, it has always been the rule that only unmarried persons are eligible to manage To Un Tung and the Tso;

(2)  She was added as a member of To Un Tung and the Tso in 1996 because Madam Wan and Madam Lam took the view at that time that adding more members would be helpful to the pending applications to appoint Mr Hung and Madam So as new managers, and it was for this reason that Madam Wan and Madam Lam took the exceptional course in allowing Madam Lee to be appointed as a member despite her marital status;

(3)  As the appointments of Mr Hung and Madam So as new managers of To Un Tung and the Tso had been approved subsequently, the purpose of adding Madam Lee as a member had been fully achieved;

(4)  In around April 2005, Madam Lee informed Mr Hung and Madam So that she could no longer be a member of To Un Tung and the Tso because she was busy in taking care of her own family. Mr Hung and Madam So therefore confirmed to her that she was no longer a member thereof;

(5)  Even if she had not resigned, Mr Hung and Madam So, as managers of To Un Tung and the Tso, had the power to remove her anyway.

25.  By reasons of the above, Madam Lee considered that she is no longer a member of To Un Tung or the Tso. Because of this, she remains neutral in the applicant’s claim in these proceedings. However, she objects to the applicant’s joinder application.

THE LAW

26.  The applicant relies on Order 15 rules 4 and 6(2)(b) of the Rules of the High Court (“RHC”) which provide that:

Rule 4

(1) Subject to rule 5(1), two or more persons may be joined together in one action as plaintiffs or as defendants with the leave of the Court or where—

(a) if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions, and

(b) all rights to relief claimed in the action (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions.

(2) Where the plaintiff in any action claims any relief to which any other person is entitled jointly with him, all persons so entitled must, subject to the provisions of any written law and unless the Court gives leave to the contrary, be parties to the action and any of them who does not consent to being joined as a plaintiff must, subject to any order made by the Court on an application for leave under this paragraph, be made a defendant.

(3) […]

Rule 6

(2) Subject to the provision of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application—

(a) […]

(b) order any of the following persons to be added as a party, namely—

(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

27.  In Advanced Connection Limited v Able Technology (Hong Kong) Limited & Others [2019] HKCA 1092, the 2^nd and 3^rd defendants therein were ordered by Ng J to be joined as additional defendants. They then appealed to the Court of Appeal against Ng J’s order. Chu JA agreed that the learned Judge had correctly identified the objective, approach and test to be adopted for an Order 15 rule 6(2)(b) joinder application. The principles which were adopted by Ng J may be summarised as follows:

(1)  Prima facie, a plaintiff is entitled to choose the person against whom it wishes to proceed;

(2)  The purpose of joinder is to bring all parties to disputes relating to one subject-matter before the Court at the same time so that the disputes may be determined without the delay, inconvenience and expense of separate actions and trials. The rule should be construed liberally so as to ensure that, as far as possible, all matters in dispute between the parties are completely and finally determined, and all multiplicity of legal proceedings with respect to any of those matters is avoided;

(3)  The test to apply in a joinder application is whether there is a bona fide claim and a proper question to be tried as between the plaintiff and the intended defendant that is necessary or just and convenient for resolution between them as well as between the plaintiff and the defendant in the proceedings. At this stage, there is no requirement for an applicant to show merits of his case under this rule;

(4)  The court’s power to join parties is a generous one, and the court’s attitude is permissive although it must still ensure that the joinder is necessary and/or just having regard to the statutory criteria. The power given by the rule should be widely exercised, even though the addition of new parties may cause new expense and necessitate new evidence;

(5)  Once a prima facie case for joinder has been made out, the burden will be shifted to the parties opposing the joinder application to establish that it is plain and obvious that the plaintiff has no case against the proposed defendants.

DISCUSSION

28.  The applicant’s counsel submitted that:

(1)  As the names of both the applicant and Madam Lee were removed from the lists of members from 2005 onwards, they should both be entitled to the relief that the applicant is now seeking in these proceedings. “The interests of the applicant and Madam Lee should stand or fall together”[1];

(2)  There are common questions of fact and/or law as to whether the applicant and Madam Lee remain members of To Un Tung and the Tso in light of the similar background and experiences which gave rise to their former membership;

(3)  Madam Lee “no doubt has an alleged interest in the subject matter of this action”[2];

(4)  There is a bona fide claim and a proper question to be tried between the applicant and Madam Lee;

(5)  Both the evidence of the applicant and Madam Lee would be integral to determining the issue of whether the applicant remains a member of To Un Tung and the Tso;

(6)  Although Madam Lee alleges that she has given up her status as a member of To Un Tung and the Tso, there still exists an issue in dispute (i.e. whether the applicant is currently such a member) which can only be determined between the applicant and Madam Lee;

(7)  Since the applicant and Madam Lee are jointly entitled to the relief sought in these proceedings, Madam Lee should have been a plaintiff together with the applicant. As she is not willing to be joined as an applicant herein, she should be made a respondent pursuant to Order 15 rule 4(2) of the RHC;

(8)  It is necessary for Madam Lee to be joined so as to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon.

29.  I do not agree that Madam Lee should be joined as an additional respondent herein:

(1)  Even if the applicant’s case is accepted in that both herself and Madam Lee are entitled to remain as members of To Un Tung and the Tso, I do not accept that they are jointly entitled to the relief sought in these proceedings in the sense of Order 15 rule 4(2) of the RHC, because the applicant’s right is independent to that of Madam Lee. In other words, their rights are several but not joint. The said rule 4(2) is therefore not engaged in the present case;

(2)  I do not accept that there is any bona fide claim or question to be tried between the applicant and Madam Lee, because as admitted by the applicant’s counsel, the applicant has no claim against Madam Lee. Indeed, it is her own submission that they are both entitled to the relief claimed in these proceedings;

(3)  Even though Madam Lee’s evidence would be relevant to the question to be determined in these proceedings, that does not mean that Madam Lee should be made a party herein;

(4)  While it is true that Madam Lee may be joined as a co-plaintiff in these proceedings if she has a similar claim to make, it is clear that she does not intend to make any such claim at all, and she has even denied on affirmation that she is entitled to make such a claim;

(5)  I reject Ms Lee’s submissions that even if Madam Lee is not added as a respondent herein, there is nothing which stops her from re-considering her position on her membership of To Un Tung and the Tso in the event the applicant succeeds in the present action. It is clear that practically it is quite impossible for Madam Lee to do so because she has confirmed unequivocally in her Affirmation that she had resigned and such resignation had been accepted by the then managers;

(6)  In these circumstances, all matters in dispute in the cause or matter in the present proceedings may be effectually and completely determined and adjudicated upon even if Madam Lee is not joined as a party herein, and it is not just or convenient to join her as requested.

CONCLUSION

30.  For reasons of the aforesaid, the Summons is dismissed.

COSTS

31.  Costs should follow the event. The applicant should therefore bear the costs of Madam Lee, which is summarily assessed pursuant to Order 62 rule 9A(1)(a) of the RHC at $130,000, payable on or before 1 November 2022.