MAN WA TONG (suing by its manageresses for themselves and others) v. SHIH CHAO JUNG AND ANOTHER

[English Translation – 英譯本]

CACV 90/2020, [2025] HKCA 127

On appeal from [2020] HKCFI 417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 90 OF 2020

(ON APPEAL FROM HCA NO 10388 OF 2000)

____________________________

____________________________

_________________

JUDGMENT

_________________

Hon Cheung JA (giving the judgment of the court):

I.  Introduction

1.  This is an application by way of an ex parte summons filed by the Hong Kong Buddhist Association (“HKBA”) on 16 October 2024. Pursuant to Order 15, rule 7(2) of the Rules of the High Court (Cap 4A), HKBA sought to have “The Hong Kong Buddhist Association as the interim administrator and manager of Man Wa Tong (also known as Man Wah Tong) （曼華堂）(also known as Chuk Lam Sim Yuen) (a religious tong)” to be made a party to the action to continue with the proceedings in place of the original plaintiff, i.e. “Man Wa Tong (suing by its manageresses for themselves and others)”. When this appeal was lodged, the manageresses of Man Wa Tong were Au Yeung Shun Mei and Poon Kit Fong (“Au Yeung and Poon”).

2.  On 23 October 2024, Mr Andy Ho, the Registrar of Civil Appeals, gave directions in respect of this application, whereby HKBA was required to file written submissions in support of this application by summons. HKBA then submitted its written submissions on 15 November 2024 in accordance with the directions.

3.  We now deal with the application on paper without an oral hearing.

II.  Background

4.  On 11 March 2020, G Lam J (as he then was) gave his decision on the dispute between the plaintiff, the 1^st defendant and the 2^nd defendant in the present case. On 6 May 2020, the plaintiff lodged an appeal against G Lam J’s decision.

5.  On 30 May 2023, in two other cases related to the present one, i.e. HCMP 496/2017 and HCA 595/2019, B Chu J held that Man Wa Tong had been mismanaged, and that it was necessary for the court to invoke section 57(6)(ii) of the Trustee Ordinance (Cap 29) to issue a Better Administration Order. B Chu J found serious problems with Man Wa Tong in terms of both financial and general business management, which necessitated structural reform for improvement. She further held that Au Yeung and Poon were no longer qualified to act as manageresses of Man Wa Tong, that they should be removed from office, and that an interim administrator/manager should be appointed to represent Man Wa Tong temporarily.

6.  Subsequently, the parties involved in HCMP 496/2017 and HCA 595/2019, Sik Chiu Yuet （transliteration of 釋照月）and Au Yeung and Poon, respectively appealed against B Chu J’s judgment dated 30 May 2023: CACV 195/2023 (by Sik Chiu Yuet) and CACV 196/2023 (by Au Yeung and Poon). Au Yeung and Poon appealed against B Chu J’s decision to revoke their status and duties as manageresses.

7.  On 15 November 2023, the two cases were heard again before B Chu J to follow up on the Better Administration Order in relation to Man Wa Tong. B Chu J appointed HKBA as interim administrator/manager of Man Wa Tong, whereby HKBA was authorised to handle all managerial, administrative, financial, and religious affairs of Man Wa Tong pending the determination of the Court of Appeal in CACV 195/2023 and CACV 196/2023 (“the Appointment Order”).

8.  Between March and August 2024, Mr Andy Ho, the Registrar of Civil Appeals, gave directions to Liu, Chan and Lam (“LCL”), solicitors acting for HKBA and K.C. Ho & Fong (“KCH”), solicitors acting for Au Yeung and Poon, for clarifying their status as legal representatives in the present case and the cases of CACV 195/2023 and CACV 196/2023.

9.  On 16 October 2024, HKBA filed the present application through LCL.

10.  On 23 October 2024, Mr Andy Ho, the Registrar of Civil Appeals, directed HKBA / LCL to file written submissions to the Court of Appeal to explain the basis of the present application, including the reasons why it was made ex parte and whether the application was appropriate while determination of the appeals in CACV 195/2023 and CACV 196/2023 were still pending.

III.  The Substance of the Application

11.  According to the affirmation filed by HKBA and the written submissions dated 15 November 2023, the present application was lodged by HKBA in its capacity as the interim administrator and manager of Man Wa Tong. HKBA contended that according to the Appointment Order, it was entitled to handle the present appeal for Man Wa Tong, whereas Au Yeung and Poon, having been removed as manageresses, are not. The present application is therefore based on the fact that the right of action in the appeal has already been transferred from the original manageresses of Man Wa Tong to HKBA as the interim administrator and manager.

12.  HKBA also pointed out that the Appointment Order is precisely the interim arrangement made by the court, having considered the submissions made by the parties in the appeals CACV 195/2023 and CACV 196/2023, in respect of the management of Man Wa Tong pending the outcome of the appeals. Therefore, the fact that the appeal cases are still pending does not affect the powers and duties of the interim administrator and manager under the Appointment Order.

13.  It is expressly stated in Order 15, rule 7(2) that an application for an order under the rule may be made ex parte. HKBA submitted that when they made the present application, none of the parties to the litigation (including the defendants and the former manageresses) sought to challenge their authority to proceed with the litigation on behalf of Man Wa Tong as its interim administrator and manager. HKBA further contended that it would not be unfair to the other parties to the proceedings for this application to be made ex parte, because a person served with a substitution order under Order 15, rule 7(4) may make an application to the court to discharge or vary the substitution order pursuant to rule 7(5) of the Order.

14.  Moreover, on 13 December 2024, LCL and KCH signed the consent summonses in CACV 195/2023 and CACV 196/2023, whereby it was agreed that the party to the two appeals be amended by replacing “Au Yeung Shun Mei & Poon Kit Fong, the manageresses of Man Wah Tong, a religious tong” with “The Hong Kong Buddhist Association, the interim administrator and manager of Man Wa Tong (also known as Man Wah Tong), a religious tong”. On 16 December 2024, Au JA made an order in terms of the consent summonses.

IV.  The Court’s View

15.  Man Wa Tong is an “unincorporated association” and a “tong” within the meaning of section 15 of the New Territories Ordinance (Cap 97), which requires a manager registered under section 15 of that Ordinance to act on its behalf : see Tang Yau Yi Tong & Another v Tang Mou Sou Tso & Others [1996] 2 HKLR 212, at 219E. The present plaintiff in this appeal made it clear that Man Wa Tong was suing by its manageresses for themselves and others. It was said that although the name did not show Au Yeung and Poon as manageresses, it was clear that they were acting on behalf of Man Wa Tong.

16.  We consider that Order 15, rule 7(2) does not apply in this case because it is a condition precedent to the adoption of the rule that the interest or liability of a party is “assigned to” or “transmitted to” or it “devolves upon” some other person. In the present case, Man Wa Tong’s own interest has not been transferred to any other person in any of the three ways mentioned above. The only thing that has changed is the person(s) appointed as Man Wa Tong’s manager. We are of the view that the applicable rule is Order 15, rule 6. Rule 6(1) of the Order reads:

“(1) No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may in any cause or matter determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.”

17.  Order 15, rule 6(2)(a) and (b) also provides that the court may, on such terms as it thinks just, order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party. The court may also order any suitable person to be added as a party to ensure that all matters in dispute in the cause or matter may be effectually and completely determined.

18.  As the order of B Chu J has already revoked the status and duties of Au Yeung and Poon as manageresses and appointed HKBA as interim administrator/manager of Man Wa Tong, and in order to ensure that the disputes in this appeal can be fully resolved, we hereby grant the application of HKBA to continue to deal with the relevant matters in this appeal in the capacity as the interim administrator/manager of Man Wa Tong.

19.  This court orders that:

1)  the name of the plaintiff in the present appeal be amended to “The Hong Kong Buddhist Association as the interim administrator and manager of Man Wa Tong (also known as Man Wah Tong) （曼華堂）(also known as Chuk Lam Sim Yuen) (a religious tong)”; and

2)  there be no order as to costs for this application.

Translated by the Court Language Section of the Judiciary and vetted by Mr Walter Lee, solicitor.