XCHRX TANG MAN KIT v. THE SECRETARY FOR JUSTICE

HCMP 2082/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2082 OF 2000

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D E C I S I O N

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1. In this matter, the Plaintiffs are Tang Man Kit ("Mr Tang") and Foo Tak Ching ("Mr Foo") suing as managers of Wah Yan Mo Fan Heung, and the Defendant is the Secretary for Justice for and on behalf of the Director of Home Affairs and the Director of Lands.

2. The Originating Summons was issued on 26 April 2000. The reliefs sought in the summons are as follows:

(a) A declaration that Mr Tang and Chan Kam Cheung were the statutory managers of Wah Yan Mo Fan Heung registered or alternatively entitled to be registered under S.15 of the New Territories Ordinance since 28 January 1989 and Mr Tang and Mr Foo are the statutory managers of Wah Yan Mo Fan Heung registered or alternatively entitled to be registered under S.15 of the New Territories Ordinance since 17 December 1999.

(b) A declaration that the Director of Home Affairs was obliged to register Mr Tang and Mr Chan as the statutory managers of Wah Yan Mo Fan Heung under S.15 of the New Territories Ordinance since 28 January 1989 and Mr Tang and Mr Foo as the statutory managers of Wah Yan Mo Fan Heung under S.15 of the New Territories Ordinance since 17 December 1999.

(c) A declaration that the Director of Lands was obliged to pay the statutory compensation to Wah Yan Mo Fan Heung by or through their statutory managers Mr Tang and Mr Foo consequential upon resumption of the land on 4 April 1997, registered in the name of Wah Yan Mo Fan Heung under the provisions of the Crown Lands Resumption Ordinance.

3. There has been no hearing of this Originating Summons and there is now a Consent Summons (originally filed before a Master but which has been brought before me today) for a Tomlin Order, the details of which I will set out subsequently.

4. Before me today, Hip Hing Timber Company Ltd has made an application in connection with HCMP 2082/2000. Although the application is for an order that the Originating Summons in HCMP 2082/2000 be amended by adding the name of the Applicant as a Defendant, in effect, it is an application for joinder by Hip Hing as a party to HCMP 2082/2000.

5. Hip Hing says that its interest is this: there are or were a number of lots of land in the New Territories registered in the name "Wah Yan Mo Fan Heung". Some lots in Demarcation District No. 93 had been resumed by Government in 1997. These are the lots referred to in HCMP 2082/2000. Other lots, not in Demarcation District No. 93, had originally been rented out to Hip Hing, and in HCA 8000/1990, Mr Tang and Mr Foo, purportedly as managers of Wah Yan Mo Fan Heung, have alleged that Hip Hing has continued in possession of those other lots as a trespasser.

6. As part of the proceedings in HCA 8000/1990, Mr Tang and Mr Foo say that they are the managers of Wah Yan Mo Fan Heung which they say is a New Territories business t'ong and they say that they were, or were entitled to be, registered as managers of the t'ong under S.15 of the New Territories Ordinance. Hip Hing has disputed that and Hip Hing's case is that the Plaintiff managers have no authority to sue because the Heung is an uncorporated association, and Hip Hing has issued a motion to strike out the action for want of the managers' authority; therefore, the issue whether the Heung is a t'ong and if so whether Mr Tang and Mr Foo were, or were entitled to be, registered as managers under S.15 of the New Territories Ordinance is of some significance to the motion relating to their authority to sue.

7. It is fair to say that in HCA 8000/1990, some evidence has been adduced that the District Officer has not accepted in the past that the Heung was a New Territories t'ong and that the District Officer has not approved the registration of the managers as managers of a t'ong under S.15 of the New Territories Ordinance. The hearing of the motion for strike out has not been concluded.

8. In the meanwhile, however, in HCMP 2082/2000, there has been an unexpected turn of events as far as the Government's position on the status of the Heung is concerned. As I have said, there is now a draft Tomlin Order between the managers of the Heung and the Secretary for Justice.

9. The draft Consent Summons before me is simple. The body of the summons is in the usual language of a Tomlin Order, i.e. that the proceedings in this action be stayed upon the terms as set out in the Schedule annexed to this summons except for the purpose of carrying the said terms into effect, with liberty to apply to carry such terms into effect.

10. The Schedule is of interest. Paragraph 1 of the Schedule is as follows:

"1. That within 7 days hereof, the Director of Home Affairs doth sign and issue an open letter acknowledging the following facts and matters:

(a) that the 'Wah Yan Mo Fan Heung' was, and still is, a t'ong within S.15 of the New Territories Ordinance;

(b) that Chan Kam Cheung and Tang Man Kit were, between 1989 and 1999, managers of the said 'Wah Yan Mo Fan Heung' within the meaning of S.15 of the New Territories Ordinance; and

(c) that the said Tang Man Kit and Foo Tak Ching were, since 1999, and still are, managers of the said 'Wah Yan Mo Fan Heung' within the meaning of S.15 of the New Territories Ordinance.

2. That the Director of Home Affairs shall formally approve and register the appointment of:-

(a) the said Chan Kam Cheung and the said Tang Man Kit as the duly appointed managers of the 'Wah Yan Mo Fan Heung'; and

(b) the said Foo Tak Ching as additional manager, to replace the said Chan Kam Cheung upon the latter's death, of the 'Wah Yan Mo Fan Heung'

such approval and registration shall have retrospective effect under and in accordance with S.15 of the New Territories Ordinance. Their registration shall be registered with the District Land Registry, Yuen Long and in such other District Land Registries where land is registered in the name of the said 'Wah Yan Mo Fan Heung'."

11. In relation to paragraph 3 of the Schedule, that has to do with the Director of Lands paying compensation in relation to lots resumed in Demarcation District No.93 and it is not relevant to the present application before me.

12. Paragraph 4 of the Schedule provides that upon performance of the acts on the part of the Director of Home Affairs and the Director of Lands aforesaid, Government shall be discharged and released from all its liabilities and obligations in the proceedings herein. Paragraph 5 is not relevant for present purposes.

13. There is an affidavit from Mr Christopher James Robinson, the author of a previous letter which had set out the Government's non-recognition of the Heung as a t'ong, and in this affidavit, Mr Robinson says that concerns as to the real status of the Heung have caused Government to "evaluate and review" the position as to the status of the t'ong as well as the propriety of releasing compensation to the managers of the Heung, and he further says that the result of the evaluation and review in relation to the declarations sought led to the signing of the Consent Summons. I am informed that a subpoena has been issued for Mr Robinson's attendance at the hearing of the Notice of Motion to strike out.

14. Before me today, Hip Hing has applied to join as a party. It has previously filed an affidavit seeking to "block" the Tomlin Order on various grounds. The first is that the Secretary for Justice has been misled because she had not been informed about the authority issue between Mr Tang and Mr Foo of the one part and Hip Hing of the other. It is clear that that is not so because apparently the Secretary for Justice has been served with the summons of Hip Hing before the draft Consent Summons.

15. Secondly, it has been suggested that there has been perjury by Mr Tang Man Kit, in that the evidence given by him in HCA 8000/1990 is inconsistent with his affirmation in HCMP 2082/2000. That may or may not be so, and no doubt any inconsistency or contradictions will be focused upon and will be considered in HCA 8000/1990. But the result is still that the Government has entered into this agreement with the managers, the Government has not alleged that it has relied on any allegedly perjured evidence and it is not seeking vitiation of the agreement on this or any other ground. The Government has been represented by counsel today and Mr Fitzpatrick has confirmed that Government does not wish to resile from the agreement embodied in the Consent Summons notwithstanding what has been disclosed in Hip Hing's affirmation.

16. For my part, I do not see how any allegations of perjury by Mr Tang can move this Court to refuse a Tomlin Order embodying an agreement made by 2 parties, that is to say Government and the managers, who are sui juris and who have been advised by legal advisers.

17. Thirdly, and perhaps most importantly, Hip Hing has applied to join as a party in HCMP 2082/2000 because it wishes to resist Mr Tang and Mr Foo's claim that the Heung is a t'ong and that they were, or were entitled to be registered as managers under S.15 of the New Territories Ordinance.

18. I can understand that before the Consent Summons was issued, if there was a common live issue between the 3 parties involved in these 2 proceedings, it would have been sensible to make an order either joining the Secretary for Justice as the Defendant in HCA 8000/1990 and to add declaratory relief, or for the 2 proceedings to be heard together by the same judge, so that the common live issue could be decided by the same judge to avoid inconsistent findings. However, there is nothing to stop 2 of the 3 parties in these 2 proceedings settling, and the effect of that settlement is that there is no longer a live issue as between the managers of the one part and Government of the other.

19. I would hold therefore that there is no point to be served by permitting Hip Hing to be joined as a party in the proceedings in HCMP 2082/2000 now that there is no further litigation between Government and the managers. In endorsing the Tomlin Order, no adjudication is made by the Court of the status of the Heung, or the status of Mr Tang and Mr Foo, or whether Government was right in agreeing to the terms of the Schedule in the Tomlin Order.

20. It is to be noted that no declaratory leave is made by the Court. It is well-known that a Court would not make declarations by consent and would require the merits of the matter to be considered, and so in the Tomlin Order, one sees in the Schedule no reference to any declaratory relief.

21. The Tomlin Order is not tantamount to any approval by the Court of the contents of the agreement in the Schedule. It does not bind this Court and it does not stop this Court from finding, if that is this Court's view, that the Heung was not a t'ong in HCA 8000/1990, and it does not affect this Court in its freedom to find, if that be the case, that any retrospective registration does not affect the rights of Hip Hing.

22. The authorities are clear that the terms in the Schedule is not as such an order of the Court. In Dashwood v. Dashwood, Tomlin J who gave his name to "Tomlin orders" held that to enforce Tomlin order terms as an order of the Court, in other words, to enforce the contents of the Schedule, another action for specific performance of the terms in the Schedule would be required.

23. Since there has been no decision on the merits as far as the proceedings between Government and the managers is concerned, there is no question of res judicata or issue estoppel. Therefore, that is not a relevant consideration.

24. Mr Mok today has said that Hip Hing may wish to bring proceedings against Government relating to Government's decision to give recognition to the Heung as a t'ong and to give retrospective effect to registration of the managers. That may or may not be Hip Hing's wish. If it wishes to bring proceedings, it might be doing so by way of judicial review or may be by some other proceedings. No doubt Hip Hing would be advised as to what steps to take, but I would have thought that any proceedings by Hip Hing against Government would be against the Director of Home Affairs and not against the Secretary for Justice in her capacity in the present HCMP 2082/2000, which is on behalf of the Director of Home Affairs and the Director of Lands.

25. Accordingly, in my view, there is nothing which can stop this Court in endorsing the Consent Summons before me today, and since there is no longer any common live issue, in my view, I would dismiss Hip Hing's summons for joinder and I will make an order in terms of the Consent Summons.