XCHRX THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS HONG KONG LTD. v. STEWART J.C. PARK also known as JESSICA PARK

HCA1167/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.1167 OF 2001

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J U D G M E N T

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Application

1. By a summons dated 14 March 2001, the plaintiff applies for an interim injunction restraining the defendant from entering the 22 premises owned or rented and occupied by the plaintiff ("the church premises"). At the first hearing on 16 March 2001, the defendant gave a voluntary undertaking to the court in the terms as sought by the summons. The matter was then adjourned for substantive argument, which took place before me on 26 October and 3 November 2001.

Background

2. The plaintiff is the legal entity conducting the affairs of the Church of Jesus Christ of Latter-day Saints ("the Church") in Hong Kong. The Church is commonly known as the "Mormon Church" and its members, "Mormons" or "Latter-day Saints". Established in 1830, the headquarters of the Church is in Salt Lake City, Utah, USA. It has tens of thousands of church congregations throughout the world, including Hong Kong. Currently, the Church has about 11,000 members here. Activities including Sunday meetings and gatherings are held in the church premises regularly. Sunday meetings include Sacrament meetings, Sunday school, Priesthood meetings and Relief Society meetings. At the Sacrament meetings, members pray, partake of the Sacrament, sing and listen to sermons. Sunday school is for gospel study. Priesthood meeting is limited to male members who hold the priesthood. Relief Society, limited to adult female members, provides instruction on a variety of topics including theology, home and family education, compassionate service, social relations and home management.

3. The defendant was formerly known as Stewart Park. She suffers from gender identity dysphoria or gender identity disorder ("GID") or commonly known as transsexualism. For present purposes, I accept that it is a specific illness recognised by the medical profession. After a series of operations, she changed her sex from male to female in about January 2000. Prior to the present dispute, she had been a member of the Victoria Branch of the Church for some 23 years, which has at all material times operated from one of the church premises, namely, 7 Castle Road, Central, Hong Kong. She was a faithful member and had at one time been a counsellor in the Bishopric of one of the congregations.

4. By a letter dated 2 December 1999, the plaintiff ex-communicated the defendant and imposed conditions on her future attendance at the Church. At that time, the defendant was already taking medical advice regarding her illness. Preparatory steps for the eventual operations including medication and conducting her life style as a woman had been taken. The conditions the Church imposed, among other things, prohibited her from wearing temple garment, paying tithes and offerings, holding any office in the Church. She was allowed to attend public meetings, that is, Sunday School and Sacrament meetings, if her conduct was orderly. But she might not offer public prayers, give talks, partake of the Sacrament, participate in sustaining officers in the Church, participate in nor initiate gospel discussions in any classes she attended.

5. It is not in dispute that the defendant subsequently breached some of the conditions including partaking of Sacrament and attending Relief Society meetings. By a letter dated 8 February 2000, the Church notified the defendant that she was in breach of the conditions and warned her that continued violation would result in immediate termination of the privilege conferred on her to attend the Church services. The defendant did not pay heed to the warning and continued to act in breach of the conditions. By a letter dated 22 February 2001, the plaintiff's solicitors informed the defendant that she was no longer allowed to enter the church premises and demanded her to sign an undertaking. The defendant refused. The plaintiff then commenced the present proceedings in March 2001.

Approach

6. The essential principles concerning the grant of an interlocutory injunction are well established. The requirements are in short, first that there is a serious question to be tried, and second that the balance of convenience lies in favour of granting an injunction : American Cyanamid Co. v. Ethicon [1975] AC 396; see also Hong Kong Civil Procedure 2001, paragraphs 29/1/8 - 29/1/10.

7. I will approach this application accordingly and examine the two matters in turn.

Serious question to be tried

8. It is hardly in dispute that the plaintiff either owns or has rented the 22 places of the church premises and is in actual occupation of the same. It is also not in dispute that the defendant does not have any interest in any of the church premises, proprietary, contractual or otherwise. The plaintiff contends and I accept that the defendant was a bare licensee. In short, she has no right to be on the church premises other than through the consent or invitation of the plaintiff. Such a bare licensee is revocable at any time on reasonable notice : Megarry & Wade on The Law of Real Property (6th edn.) at paragraphs 17-001 to 17-003.

9. A landowner whose title was not disputed is prima facie entitled to an injunction to restrain trespass on his land, even if the trespass did not harm him, although there could be exceptional circumstances which would make the granting of an injunction inappropriate. On an interlocutory application, such an injunction should, in the absence of exceptional circumstances, be granted unless the defendant satisfies that court that there was an arguable case that she has a right to do that which the plaintiff alleged to constitute a trespass. Only if such the defendant could show such an arguable case should the court go on to consider the balance of convenience, the preservation of the status quo and the adequacy of damages as a remedy : Patel & others v. WH Smith (Eziot) Ltd & another [1987] 1 WLR 853, English Court of Appeal, followed in Lea Tai Property Development Ltd v. Incorporated Owners of Leapoint Industrial Building [1996] 1 HKC 193, CA.

10. Relying on the above proposition, Mr Ma, SC for the plaintiff submitted that on the undisputed fact that the church premises are private properties either owned or rented by the plaintiff; that the defendant is only a bare licensee; that she had breached the conditions of entering into the church premises; and that her licensee had already been revoked by the plaintiff by the letter of 22 February 2001, the burden shifts to the defendant to demonstrate an arguable case that she has a right to do what which is sought to be injuncted to do, that is, to commit a trespass. The "right" in this context means a right to do something even against the will of the person who has title. And only if the defendant can show such an arguable case will the question of balance of convenience arise.

11. Mr Harris for the defendant did not seriously dispute the above proposition. He, however, contended that the defendant has raised at least a serious question to be tried, if not a strong case, on two matters : (1) the plaintiff was in breach of the Disability Discrimination Ordinance, Cap.487, when excommunicating her, subjecting her to the special conditions for entering into church premises and excluding her therefrom; and (2) the plaintiff had acted in breach of natural justice in relation to its excommunication of the defendant and the ensuing events.

12. Counsel has taken me through the evidence leading to the defendant's ex-communication and on the events thereafter and cited various authorities, including those on the circumstances when a court of law can interfere with the affairs of a religious body. Without any disrespect to counsel, I do not propose to deal with their submissions in depth. Indeed, I think I should abstain from expressing my view on the merits of the case. It is no part of the court's function at this stage of the litigation to try to decide difficult questions of law which call for detailed argument and mature considerations. These matters are to be dealt with at the trial : per Lord Diplock in American Cyanamid Co. v. Ethicon, above at 406. The matters sought to be raised by the defendant no doubt involve difficult questions of law. For example, whether the relevant sections in the Disability Discrimination Ordinance including sections 25 and 26, are applicable in the circumstances similar to the present context and if so the ambit thereof, has hitherto not been tested in court. When a court can interfere in the affairs of a church is not an easy question either. I am quite satisfied that the defendant has raised a serious question to be tried to enable the next requirement on balance of convenience to be considered. To this I now turn.

Balance of convenience

13. Mr Ma submitted that the balance of convenience weighs heavily in favour of the plaintiff. In essence, counsel contended that the plaintiff is entitled to exclude what it regards as a disruptive influence. And there is much potential for trouble.

14. Mr Harris submitted that the balance is very much in favour of the defendant. In short, she should not be deprived of her right to practise her religion as usual at the habitual place of worship, which plays an important part in her life. The defendant is a potential suicide risk, having made suicide attempts in the past. It is an extreme and desperate step to exclude her.

15. Again, I do not propose to go into details of the evidence or the parties' submissions. Nor will I express my view on them any more than what is necessary to dispose of this application. For some of the matters are clearly pertinent to the central complaints raised by the defendant. They need to be canvassed at trial. Suffice it to say that I have already carefully considered all the materials before me.

16. I must confess balancing the convenience is not an easy task. It boils down to on the one end of the scale, protecting the integrity of the church meetings and members' feelings against what the plaintiff regards as disruptive influence of the defendant, and on the other the defendant's wish to continue with her religious practice at the habitual place of worship for more than 23 years without undue restrictions, the non-fulfillment of which may adversely affect her emotions and well-being.

17. Having considered the matter carefully, I am of the view that the balance tilts slightly in favour of the plaintiff. Apart from the submissions of Mr Ma, there is one further point. In the present stage of affairs and before resolving all the substantial disputes at trial, the prejudice that the defendant may possibly suffer by attending the Church meetings and services again outweighs the benefit she may be able to gain. There is a real risk that she may well be subjected to what she regards as humiliating (though not necessarily unlawful) treatments by the officers of the Church or even some members of the Church, aggravating her emotional condition further. It may also give rise to further interlocutory applications, which will unnecessarily protract the final determination of the substantive disputes.

Status quo

18. Even if the balance is even, the status quo, that is, the state of affairs existing during the period immediately preceding the issue of the writ should be preserved : Garden Cottage Foods Ltd v. Milk Marketing Board [1984] AC 130, HL. In this regard, Mr Ma submitted that the status quo consisted of the defendant being excommunicated and her licence to be on the church premises revoked. With respect, I agree.

Conclusion

19. For the above reasons, I will allow the plaintiff's application and grant an interim injunction pending trial or further order in terms of paragraph 1 of the summons, subject to the usual undertaking of damages by the plaintiff. I will also make an order nisi that costs of this application be the plaintiff's costs in the cause with a certificate for two counsel. The order nisi is to be made absolute within 14 days after handing down of this judgment.

20. This case obviously warrants a speedy trial. I will give the parties liberty to apply in this regard if they so desire.