Hca002337 2016
Hca002337 2016
Hca002337 2016
A A
[2018] HKCFI 967
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D D
E E
F F
G G
H H
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J J
K K
L L
M M
N N
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DECISION
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IN THE HIGH COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF FIRST INSTANCE
E ACTION NO 2337 OF 2016 E
F BETWEEN F
KOO MING KOWN Plaintiff
G G
and
H H
Rev. Mr. MOK KONG TING 1st Defendant
(President of the Baptist Convention of Hong Kong)
I I
Rev. Mr. LAM SAU KWONG 2nd Defendant
J CHAN CHI MONG, HOPKINS 3rd Defendant J
th
THE BAPTIST CONVENTION OF HONG KONG 4 Defendant
K K
N N
Introduction
O O
1. This is an appeal from the decision of Master Andy Ho made on
P 17 July 2017 ordering, inter alia: P
Q (1) that the 1st and 2nd defendants’ application to strike out the Q
plaintiff’s claim be dismissed (the “striking out application”);
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(2) that the plaintiff be granted leave to join Chan Chi Mong, Hopkins
S (“Chan”) and The Baptist Convention of Hong Kong (“BCHK”) S
rd th
as the 3 and 4 defendants respectively in this case; and
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(3) that the plaintiff be granted leave to amend the statement of claim.
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2. The plaintiff is an alumnus and former honorary director of the
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Hong Kong Pui Ching Schools (the “Schools”), comprising of the Hong
C
Kong Pui Ching Primary School (the “Primary School”) and the Hong Kong C
Pui Ching Middle School (the “Middle School”). He is also a contributor to
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the funds for educational purposes of the Schools through substantial
F F
3. BCHK is a body corporate which runs and manages the Primary
G
School and Middle School. The 1st defendant is the President1 of BCHK and G
nd
the Chairman of its Council. The 2 defendant is the Executive Secretary of
H H
BCHK. Chan was the supervisor of the Middle School until 2017 and is
I currently the supervisor of the Primary School, whose appointment was approved I
P
(1) Chan is not a “fit and proper person” within the meaning of the P
Education Ordinance (Cap 279) to serve or continue to serve as
Q the supervisor of the Primary School; Q
1
In the heading of the Re-Amended Writ of Summons, the 1 st defendant is described as
T “President”, but in paragraph 2 of the Re-Amended Statement of Claim, he is described as T
“Chairman”. The facts set out in paragraphs 2 and 3 above is based on the Articles of Association
of BCHK.
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The background
B B
6. The relevant background of this case can be gleaned from the
C following paragraph of the pleadings filed by BCHK in HCA 946/2003 (on C
I I
7. At the heart of this case is the plaintiff’s fight for the good name
J and reputation of the Schools by ensuring that the Primary School is not J
subject to the control of Chan, whose integrity the plaintiff considered highly
K K
questionable. On the plaintiff’s case, Chan, who was previously appointed
L by BCHK as the supervisor of both the Primary School and the Middle School L
and who still continues to serve as the supervisor of the Primary School, is not
M M
a “fit and proper person” for that appointment in that:
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(1) Chan represented to the Hong Kong Christian Council that he has
O the qualification of “Ph.D., M.B.A., B.Sc (Eng)”; O
(2) Chan has claimed on a number of occasions that his Ph.D. degree
P P
was obtained in 2007 from The European University of Ireland;
Q (3) on 25 February 2000, it was reported that The European University Q
T 2
Pei Zheng Middle School & The Baptist Convention of Hong Kong v China Pui Ching T
Educational Foundation Ltd & Others CACV 2/2007, 6 August 2007, para 3, citing para 3(a) of
BCHK’s statement of claim therein
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(6) the plaintiff has taken steps to confirm that the Ph. D. degree
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purportedly granted by The European University of Ireland is not
E a valid degree granted by an accredited degree-awarding E
authority; and
F F
(7) it was further confirmed that The European University of Ireland
G was a limited company registered in Ireland which ceased to G
exist since 2010.
H H
M
plaintiff considered BCHK’s approach irresponsible and unsatisfactory. He M
thought BCHK should have investigated Chan and his academic qualification
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and provided an account of the serious matter. But despite his repeated
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complaints from December 2015 to August 2016 that it was wrong for BCHK O
to defend Chan and to have allowed him to stay in his position as supervisor
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without resolving the issue of his integrity, the 1st defendant and BCHK failed
Q and/or refused to carry out any investigation or to take any appropriate action. Q
st nd
This led the plaintiff to commence the present action against the 1 and 2
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defendants and further to seek to amend the amended writ of summons and
S amended statement of claim to join Chan and BCHK as necessary parties. S
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The legal principles applicable to striking out, joinder and amendment of
B pleading B
pleadings are trite. Counsel have no dispute that the following principles are
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applicable.
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10. An order to strike out would only be granted by the court in plain
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and obvious cases. Disputed facts are to be taken in favour of the party sought
G to be struck out. The claim must be obviously unsustainable, the pleadings G
unarguably bad and it must be impossible, not just improbable, for the claim
H H
to succeed before the court will strike it out. The burden lies on the party
I applying: see Hong Kong Civil Procedure 3, Ha Francesca v Tsai Kut Kan I
sought to be struck out has been made, the court’s approach would be to deal
L L
with the striking out application on the basis of the facts as pleaded in the
M proposed amendments. If on that basis, the amended pleading should not be M
struck out, then the application to amend should be allowed and the striking-
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out application dismissed: see Hong Kong Civil Procedure 2017.6
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12. Pursuant to Order 15, rule 6 of the Rules of the High Court
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(“RHC”), all parties to the dispute should be brought before the court at the
Q same time such that the dispute may be resolved effectively and fully Q
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7
Yuan v Kin Ming Holdings International Ltd . There is no need to show
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merit or to prove the strength of one’s case: see Wong Shan Shan v IO of Yue
C
Wah Mansion 8. C
D 13. Under Order 20, rule 5, all amendments which are necessary to D
E
enable the real questions and controversy between the parties to be decided E
should be allowed unless it will result in prejudice to the other party which may
F F
not compensated for in costs. The principle has been stated by Lord Brandon
G
in Ketteman v Hansel Properties Ltd 9 as follows: G
These principles remain the guiding principles after the Civil Justice Reform:
N N
10
see Topwell Corp Ltd v Kwan Kam Kee . Unless it is clear that the proposed
O amendments will not succeed at trial, leave should be given to the plaintiff to O
save rather than to destroy and to cure which is capable of cure in relation to
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7
[2012] 3 HKLRD 550, at paras 15 – 28 per Deputy High Court Judge M Chan (as she then
S was), applied in Xu Shengheng v Cheung Kwan HCA 291/2009, 22 July 2013, at paras 58 – 59 per L S
Chan J
8
HCA 1086/2013, 28 January 2015 at paras 31 – 32, per Deputy High Court Judge Kent
T Yee T
9
[1987] 1 AC 189, at 212F – H
10
[2014] 5 HKLRD 1 (CA)
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11
the pleadings: see Hong Kong Civil Procedure 2017 . In relation to the
B B
defendants’ striking-out application, it is necessary for the court to consider all
C
the proposed re-amendments of the plaintiff, inclusive of the joinder of Chan C
and BCHK as new parties.
D D
E
Legal principles on court’s jurisdiction to grant declaratory relief E
15. Counsel also have no dispute about the legal principles governing
F F
the court’s jurisdiction in granting declaratory relief. They also refer me to
G the same authorities. Order 15, rule 16 of the RHC is a convenient starting G
H
point to consider this jurisdiction. This rule provides: H
K In fact, the court’s power to grant declaratory relief is not derived from this K
rule, but from its inherent jurisdiction. This rule only reflects the width of
L L
this inherent jurisdiction. The following is what Lord Brandon said of this
M inherent jurisdiction in the House of Lords decision in In re F (Mental M
R From the above dictum and the rule, it is plainly obvious that the court’s R
T T
11
At para 15/6/1
12
[1989] 2 WLR 1025 (HL), at 1074E– F
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may be exercised whether the applicant has any cause of action or whether
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any relief is sought or available or not.
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Lord Goff also cited with approval at p. 1091G–H the often cited
K passage in the judgment of Bankes L.J. in the Guaranty Trust case K
at p. 572 which includes the following dictum:
L ‘ There is, however, one limitation which must always be attached L
to it, that is to say, the relief claimed must be something which it
would not be unlawful or unconstitutional or inequitable for the
M court to grant or contrary to the accepted principles upon which M
the court exercises its jurisdiction. Subject to this limitation I see
nothing to fetter the discretion of the court in exercising a
N N
jurisdiction under the rule to grant relief, and having regard to
general business convenience and the importance of adapting the
O machinery of the courts to the needs of suitors I think the rule O
should receive as liberal a construction as possible.’
13
T CACV 79/1988, 25 October 1989 T
14
[1915] 2 KB 536 at 562
15
At paras 54 – 57
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Thus, to invoke this jurisdiction, the applicant does not need to have a cause
B B
of action against the adverse party. What he needs to establish his locus is to
C show he has a real interest in the subject matter of the declaration, ie the lis C
17. The same approach was also adopted by the later English Court
E E
16
of Appeal in In re S (Hospital Patient: Court’s Jurisdiction) . In the exercise
F of that discretion, the court adopts a practical utility approach and will not F
G
impose nice tests to determine the precise legal standing of the applicant. G
The rationale was as follows:
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“ … it can be suggested that where a serious justiciable issue is brought
before the court by a party with a genuine and legitimate interest in
I obtaining a decision against an adverse party the court will not impose I
nice tests to determine the precise legal standing of that claimant.
….
J …. If the law were powerless to give practical help in cases such as J
this, the invitation to others similarly placed in future to take the law
K into their own hands, with the risk at least of unseemly tussles and at K
worst of violence, would be obvious. This is pre-eminently an area
in which the common law should respond to social needs as they are
L manifested, case by case. Any statutory rule, unless framed in terms L
so wide as to give the court an almost unlimited discretion, would be
bound to impose an element of inflexibility which would in my view
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be wholly undesirable.”
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18. Thus, in determining whether an applicant has the necessary
O interest in the subject matter of the declaration, the court adopts the practical O
utility approach by asking the question whether the court’s jurisdiction to grant
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declaratory relief was properly exercisable instead of applying nice tests as if
Q it were raising a strict jurisdictional issue. Q
to refer to the meaning given by Lord Fraser in the Scottish case of R v IRC
S S
17
Ex p National Federation of Self-Employed and Small Businesses Ltd . It
T T
16
[1996] Fam 1 at 18 – 19; [1995] 3 All ER 290 at 302 – 303
17
[1982] AC 617 at 646
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meant a real interest of a material character to be enforced or protected as
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opposed to a merely academic or hypothetical question or one raised out of
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curiosity. The law is the same in England. In Re S (Hospital Patient: Court’s C
Jurisdiction) 18, the English Court of Appeal had to consider the rival claims
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by the wife and son on the one part and the cohabitee on the other to the right
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The English Court of Appeal also quoted the following simple statement of K
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Lord Goff in In re F (Mental Patient: Sterilisation) :
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“ Here the declaration sought does indeed raise a real question; it is
M
far from being hypothetical or academic. The plaintiff has a proper M
interest in the outcome, so that it can properly be said that she is
seeking relief in the broad sense described by Bankes L.J.”
N N
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20. Thus in summary, an applicant seeking to invoke the court’s
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jurisdiction to grant declaratory relief has to show:
C (1) that he has a real interest in the subject matter of the declaration C
F
(3) that the adverse party is a proper contradictor (the proper F
contradictor requirement).
G G
21. The defendants’ grounds for striking out the plaintiff’s claim are:
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(1) lack of standing to sue;
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(2) avoidance of streamline procedure under Order 53 of the RHC;
K (3) the absence of a proper contradictor; K
P 22. Mr Chong, counsel for the 1st and 2nd defendants, submits that a P
plaintiff does not have the necessary standing to bring a claim for declaratory
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relief unless he could establish a logical connexion between the relief sought
R by him and the complaint of fault allegedly committed by the defendant. R
This ground is in fact directed at the real issue requirement and real interest
S S
requirement. Mr Chong said that in this action, the subject matter of the
T dispute as formulated in the plaintiff’s Re-Amended Statement of Claim is T
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“the good name and reputation of [the Primary School]”. It was alleged that
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Chan’s false claim of having a doctorate degree has injured the good name and
C
reputation of the Primary School. He then referred to the plaintiff’s C
affirmation filed in opposition to the defendants’ summons for striking out in
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which the plaintiff asserted that he does not have personal interest in the
E outcome of these proceedings and that his motive is to protect the reputation E
of the Primary School and Middle School. Mr Chong submits that any
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damage to the goodwill and reputation of the Primary School caused by Chan
G for not being a “fit and proper person” will not cause any loss or damage to G
the plaintiff. Hence, he argues that the plaintiff has no locus to bring a claim
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for declaratory relief.
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declaration, a real interest in the outcome of the claim for relief and a proper
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contradictor. Even though the subject matter of the dispute as formulated by
M the plaintiff in his Re-Amended Statement of Claim is “the good name and M
reputation of [the Primary School]”, the material issue raised is whether Chan
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should be removed from the office as supervisor of the Primary School for
O not being a “fit and proper person”. Under sections 30(1)(b) and 35(1) of the O
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good name and reputation of the Schools. Hence, the plaintiff’s request that
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the question as to whether Chan is a “fit and proper person” as a school
C
supervisor is a real and not a theoretical question for which it is proper to C
seek a decision from the court.
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E
24. Next, Mr Chong argues that the plaintiff has no real interest in E
the outcome of the proceedings. He suggests that the plaintiff is merely a
F F
busybody and is not entitled to the relief sought. He quoted the following
G
dictum of Megarry VC in Malone v Metropolitan Police Commissioner 21 in G
support of the proposition that the relief sought must affect the plaintiff
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himself:
L Mr Chong also draws support for Malone from the English Court of Appeal case L
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declaratory or any other relief (in private law any more than public
law proceedings). But it can be suggested that where a serious
B B
justiciable issue is brought before the court by a party with a genuine
and legitimate interest in obtaining a decision against an adverse
C party the court will not impose nice tests to determine the precise C
legal standing of that claimant.”
D D
25. It is true that the plaintiff is not seeking any personal relief in his
E E
favour. He is seeking a declaration that Chan is not a “fit and proper person”
F and/or that he be removed from his position as supervisor. That is not F
personal relief for himself. I do not think by that dictum Megarry VC was
I I
imposing a strict requirement that relief means “some real liability or
J disadvantage or difficulty” which affects the applicant because it would be J
blatantly inconsistent with Order 15, rule 16 which expressly provides that the
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court may make binding declarations of right whether or not any consequential
L relief is or could be claimed. I think his Lordship was quoting those types of L
relief as examples of what he tagged on the latter part of that dictum, “not
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mere matters of interest or curiosity or the like”. On the question of locus for
N declaratory relief, the courts have always adopted a liberal approach. In Ip N
Cheung Kwok v Ip Siu Bun & Others, Clough JA said that the court did not
O O
treat the question of locus as raising a strict jurisdictional issue but as raising
P the question whether the court’s jurisdiction to grant declaratory relief was P
the precise legal standing of the claimant. This is the yardstick to be applied.
S S
T T
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26. Whether the plaintiff has shown an interest in the outcome of the
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proceedings is question of fact. On the unchallenged facts pleaded, which
C
must be assumed in favour of the plaintiff, he is an alumnus and former C
Honorary Director of the Schools who has a real interest in protecting and
D D
maintaining the good name and reputation of the Schools by ensuring that the
E Primary School is not controlled by a person who is “unfit and improper” and E
not qualified for appointment as supervisor under the Education Ordinance.
F F
He has made substantial donations to the Schools amounting until about 2014
G close to around $30 million. Such donations speak for the genuineness and G
legitimate interest of the donor in the well-being of the Schools, his interest
H H
in protecting and maintaining their good name and reputation. The plaintiff
I must have real interest in seeing to that not only the donation is and would I
27. I note that the donations were not made to BCHK, but to the
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Schools. However, the Primary School not being itself a legal entity is not
S capable of holding assets. Whilst the donors, including the plaintiff, no doubt S
thought that their donations were made for the educational or ancillary purposes
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of the Schools and were indeed made to the Schools, in reality, the donations
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have become funds received and controlled by BCHK. On the other hand,
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BCHK’s mission extends vastly beyond the administration of the Primary School
C
and Middle School. It is the sponsoring body of at least 12 schools using the C
name of “Pui Ching”. That does not in any way reduce the plaintiff’s interest
D D
in the well-being of the Primary School and its students.
E E
28. Furthermore, the students of the Primary School are receiving
F F
education from the Primary School. They are beneficiaries of BCHK, if not
G
just the Primary School itself. But they are in no position to challenge the G
propriety of the appointment of the supervisor. They are, like the patient in
H H
In re S, incapable of expressing their wishes in respect of the quality of
I education they receive from the Primary School. They are the silent I
beneficiaries who have all the more needs of a “guardian” like the plaintiff to
J J
protect their interest insofar as the quality of the education they receive in the
K Primary School is concerned. K
L L
29. All in all, I consider the plaintiff has demonstrated a real interest
M in the subject matter of the declaratory relief and a real interest in the outcome M
of these proceedings.
N N
P
30. Mr Chong attacks the plaintiff’s action as an avoidance of the P
streamline procedure under Order 53 of the RHC by challenging the statutory
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regime for appointment of supervisors and therefore an abuse of process. The
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first supervisor only. In respect of the subsequent appointments, it is the
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management committee which makes recommendation for the Permanent
C
Secretary’s approval: section 38(1). The Permanent Secretary may refuse to C
approve the appointment of a supervisor on the ground that the nominee is
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not a “fit and proper person to be the supervisor”: section 35(1). The tenure
31. On the basis of these provisions, Mr Chong argues that neither the
H H
sponsoring body nor its officers who sit in the school management committee
I have power to remove a supervisor. Nor is it a prerequisite requirement for I
opinion that the nominee is not a fit and proper person: section 38(2) and
S S
section 35. Nothing in the provisions referred to by Mr Chong or in any
T other provisions of the Ordinance could prevent a committee member, willing T
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33. On the other hand, it is not the public duty of the Permanent
I I
Secretary to actively involve himself in the management of the school and
J appointment of its supervisor. These are functions within the realm of the J
O O
34. Article 59 of the Articles of Association of BCHK provides:
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“ [BCHK] shall use its best endeavors to ensure that all school(s)
managed by itself or under its direct or indirect supervision are operated
Q Q
in all respects to the full satisfaction of the Permanent Secretary for
Education and in the best interest of the students, including but not
R limited to ensuring compliance with the applicable legislation and such R
other requirements as specified from time to time by the Permanent
Secretary for Education.”
S S
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duty to ensure that its nominee is a “fit and proper person” for appointment as
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supervisor; and once appointed, continues to a person of such, and if not
C
acceptable as such a person or on any other grounds, to seek his removal by C
invoking the process under section 38(1)(e) and 38(2). The management
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committee cannot leave it to the Permanent Secretary to police the discharge
claim cannot force the plaintiff down the path of judicial review to avoid
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opposing the claim against them for their own failure to perform their duty. I
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therefore do not think it necessary to consider the defendants’ argument on
B B
judicial review.
C C
Absence of a proper contradictor
D D
36. Mr Chong argues that the proper contradictor for the plaintiff’s
E claim is the Permanent Secretary and not BCHK. The basis of his proposition E
H
of the statutory regime for appointment and removal of supervisors. H
I I
37. Mr Chong also referred me to the plaintiff’s actions in
J HCA 2334/2016 and HCA 2336/2016 in which the plaintiff’s actions against J
the Permanent Secretary and the Chief Secretary for their approval of Chan’s
K K
appointment as supervisor of the Primary School had been struck out. He
L therefore argues that a declaratory relief against the 1 st and 2nd defendants and L
BCHK even if granted will not compel the Permanent Secretary to remove
M M
Chan, and will therefore serve no purpose. It is not clear what was the basis
N for the striking out. But the plaintiff’s case for declaratory relief is well set N
out and, if successful and followed through could lead to Chan’s removal by
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invoking the procedure under section 38(1)(e) and 38(2).
P P
38. Mr Chong argues that the Primary School is an institute founded
Q exclusively for educational purpose and hence, is a charitable trust. As the Q
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the declaratory judgment, namely the Permanent Secretary and the Secretary for
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Justice. But I do not see how a declaration that Chan is not a “fit and proper
E person” to serve or continue to serve as a supervisor of the Primary School E
would affect the interest of the Permanent Secretary or the Secretary for
F F
Justice. As I have indicated, the function of the Permanent Secretary in the
G appointment of supervisor is a passive one. If the management committee G
M
officers: M
(1) a President;
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(2) a 1st Vice President;
O (3) a 2nd Vice President; O
T T
24
[1990] 1 HKLR 497 at 511F – G, 514H– J, per Clough JA
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41. Under article 39, the operations of BCHK shall be managed by
B B
the Council which is the supreme authority of BCHK when general meetings
C
are not being held. Under article 44, officers of BCHK shall be officers of C
the Council in the following manner:
D D
(1) the President shall be the chairman of the Council;
E (2) the 1st Vice President shall be the 1st Vice chairman of the Council; E
(3) the 2nd Vice President shall be the 2nd Vice chairman of the Council;
F F
rd rd
(4) the 3 Vice President shall be the 3 Vice chairman of the Council;
G G
(5) the Honorary Secretary shall be the Honorary Secretary of the
Council;
H H
(6) the Honorary Assistant Secretary shall be the Honorary Assistant
I Secretary of the Council; I
Council.
L L
M
42. Under article 45, the Council may employ for BCHK an Executive M
Secretary, Deputy Executive Secretary, Assistant Executive Secretaries and a
N N
paid staff.
O O
43. Under article 46, the Council may recommend to BCHK in its
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general meeting the setting up of any department to carry out any of the affairs
Q
of BCHK and for the removal of any department. One of these departments Q
is the Education Department which oversees the management committee of
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the Primary School. Accordingly, the Council has direct authority and
S responsibility through the Education Department over the management S
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st
44. The plaintiff sues the 1 defendant in his capacity as the Chairman
B B
of BCHK (presumably meaning the “President”) and the 2nd defendant in his
C
capacity as the General Secretary of BCHK (presumably meaning the C
“Honorary Secretary”). In the light of the constitution of BCHK as I have
D D
outlined above, the 1st defendant is in fact the President of BCHK as well as
E the Chairman of the Council which is the supreme authority of BCHK. The E
2nd defendant, who is named “Lam Sau Kwong”, was the person who signed on
F F
the Public Notice under the title as Executive Secretary. He is neither the
G General Secretary as pleaded nor the Honorary Secretary according to the G
articles of association. Mr Mok SC, leading counsel for the plaintiff, has
H H
erroneous submitted that the Public Notice was signed by the Chairman and
I General Secretary. It was issued by BCHK under the authority of the I
Secretary. Presumably, his signature was put on the Public Notice for the
L L
purpose of authentication. He is not the Honorary Secretary of BCHK and
M not a member of the Council, but a salaried employee occupying the position M
45. The plaintiff also wrote to Chan directly by email asking for
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clarification about his doctorate degree. But Chan did not respond. Despite
Q the overwhelming evidence offered by the plaintiff, BCHK presumably Q
without first making any full or proper investigation and/or giving any
R R
satisfactory account as requested, disregarded the evidence submitted and
S issued the Public Notice on 18 December 2015 defending Chan and concluded S
that the accusation of integrity against Chan (in the context of his false claim
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for his doctorate qualification) was unfounded. It was not stated at all in the
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Public Notice that there was any or any serious investigation made into the
B B
substance of the plaintiff’s complaint. As can be noted from the 2nd
C
defendant’s defence, other than not admitting the plaintiff’s accusation that C
Chan made a false declaration of his doctorate qualification, he advanced no
D D
indication whatsoever that the 1st or 2nd defendant or indeed BCHK have ever
E taken the plaintiff’s complaint seriously or have taken any or any serious steps E
to investigate the complaint or a positive case that the doctorate degree was
F F
awarded by a degree awarding and accredited university. It is therefore plain
G that the 1st and 2nd defendants and BCHK have turned a blind eye to the G
plaintiff’s complaint and openly taken the stance that the plaintiff’s complaint
H H
was unsubstantiated and should be ignored. Between 24 December 2015 and
I 22 September 2016, the plaintiff wrote no less than six emails to the I
1st defendant and BCHK repeating his complaint. They were all ignored.
J J
The court is the only forum where the issue of Chan’s fitness as supervisor of
K the Primary School could be ventilated. K
L L
46. Mr Chong referred me to the case of Yu Hung Hsua Julie v The
M Chinese University of Hong Kong 25 in which an associate professor of the M
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25
HCAL 47/2015, unreported, 30 November 2015
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construction of the constitutional documents of the university. That decision
B B
may have no bearing on the present case.
C C
47. The issue of the Public Notice was an act of BCHK. The Council
D is the supreme authority of BCHK. In an action against BCHK, it would not D
E
be inappropriate to sue the Council, including each and every member of the E
Council, as its supreme authority. I have found, by virtue of article 58 of
F F
BCHK’s Articles of Association that BCHK, the Council and the management
G
committee have a primary duty to ensure that its nominee for appointment as G
supervisor is a “fit and proper person”; and once appointed, continues to a
H H
person of such, and if not acceptable as such a person or on any other grounds,
I seek his removal by invoking the process under section 38(1)(e) and 38(2). I
for the management committee. If a declaration to the effect that Chan is not
L L
a “fit and proper person” is made, it is difficult to see how and why the
M Council acting properly would not in the ordinary course of event give effect M
and each and every other member, and Chan are appropriate contradictors.
P P
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could not be a proper contradictor. For this reason, the Re-Amended
B B
Statement of Claim must be struck out as against the 2nd defendant. I suspect
C
Chan Wai Sang was intended by the plaintiff to be the 2 nd defendant. But I C
cannot speak on the plaintiff’s behalf. In any event, if BCHK is joined, there
D D
is no need to amend the name of the 2 nd defendant. The plaintiff and his legal
E team made a mess of the capacity or identity of the 1 st and 2nd defendants. He E
has to be penalised in costs.
F F
G
Internal management of BCHK G
H
49. Mr Chong, quoting Hong Kong Housing Services for Refugees H
26
Ltd v SJ , argues that BCHK as a corporate body for charitable purpose
I I
holding the Primary School and its property absolutely as its own property
J
and not as a trustee. The only limitation to its power is that it could not act J
ultra vires its power and duties specified in its constitution. Next, he argues that
K K
the internal management rule applicable to body corporates applies equally to
Q Q
50. First, Mr Chong quoted the case of Ex parte Berkhampstead
R Free School 27 in which the master and usher of a charity school founded by R
statute misappropriated the property of the school but its visitor refused to
S S
26
[1999] 4 HKC 292, per Ribeiro J (as he then was), at 301F, citing Liverpool and District
Hospital for Diseases of the Heart v Attorney General [1981] Ch 193, and Vernon’s Will Trusts
T [1972] Ch 300 T
27
(1813) 35 ER 270
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remove them. It was held that the visitor had exclusive jurisdiction over the
B B
internal management of the charity school:
C “ This is a Royal Foundation under which the Master and Usher are C
Corporators. As long as they remain so, and the Visitor does not
D think proper to remove them, they must in a Court of Justice have the D
Enjoyment of all the Revenues, which belong to them by the same
Instrument, that gives them the Corporate Character. …”
E E
That was a case of judicial review in which the House of Lords adopted the
M M
statutory ultra vires theory based on the proposition that the power had been
N conferred on the decision-maker on the underlying (and fictional) assumption N
that the power was to be exercised only within the jurisdiction conferred, in
O O
accordance with fair procedures, and reasonably in a Wednesbury sense. It
P had all to do with construction of the domestic law or constitutional P
T T
28
[1993] AC 682 at 695H
29
[1987] 1 AC 795 at 815
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“ As the jurisdiction stems from the power to provide and administer
the domestic law of the foundation, it can as a general rule be said
B B
only to apply to those who are members of the foundation because
only they are subject to those domestic laws. Nevertheless the
C jurisdiction has always been held to apply both to admission to and C
removal from office in the foundation ….”
D D
This dictum had all to do with construction of the domestic law applicable to
E members of the University. It had nothing to do with a claim by a non-member E
Kong subject to the provisions of the Education Ordinance. The fitness for
J J
appointment of a supervisor in accordance with the statutory regime as
K opposed to the appointment of a particular qualified individual is clearly a K
N
transparent way. As the plaintiff asserted, integrity is the most important N
element in the education field. The public would rely on the academic
O O
qualification of the supervisor to assess the capability of the management of
P
the Schools. If so, the false declaration of academic qualification by Chan P
may well give the general public the false impression as to the capability and
Q Q
integrity of the management committee of the Primary School and the quality
matters of internal management to which the court should not have access.
S S
T T
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A A
Frivolous, vexatious and abuse of the legal process
B B
54. Mr Chong attacks the plaintiff’s case as frivolous, vexatious and
C abuse of the legal process on two fronts. First, he quotes my decision in Koo C
Ming Kown v Pacific Online Ltd 30 in which I held it would be frivolous and
D D
vexatious to continue with an action which is obviously unsustainable and that
E E
using the process of the court to continue with such an action would be an
F
abuse of the legal process. Though the plaintiff herein was also the plaintiff F
in that case and one of the issue was also Chan’s integrity arising out of his
G G
false declaration of his doctorate qualification, the context is wholly different.
L
and 4th defendants by using Chan’s academic qualification. In furtherance of L
the said motive, the plaintiff has been pursuing an extra legal relief by way of
M M
mock trial involving the public through directing mass media to publish articles
N about Chan’s academic qualifications and emails to the 1st defendant that were N
also forwarded to members of the alumni association and other schools under
O O
the Pui Ching family.
P P
56. The defendants refer, in particular, to an allegation made by the
Q alumni of the Primary School, including the plaintiff, prior to the Q
T
advocated for reform of the management of the Primary School, enhancing T
30
HCA 2333/2016, unreported, 16 May 2017, at para 31
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the transparency of its management, and setting up an incorporated management
B B
committee of the Primary School in lieu of the present management
C
committee. BCHK rejected the proposal of setting up an incorporated C
management committee of the Primary School. The defendants allege that in
D D
order to pressurize BCHK into acceding to the alumni’s request, the plaintiff
E and other alumni then started a campaign and a series of litigation against E
BCHK and its officers. The campaign includes:
F F
(1) distributing fliers outside the Primary School and the church of
G which Chan is a member, at the time when the plaintiff could not G
K
(3) copying letters and emails from the plaintiff to the 1st defendant K
and Chan to the media, government officials, public bodies and
L the general public, to raise widespread criticism in the public L
of his false declaration of his doctorate qualification: Koo Ming Kown v Pacific
R R
31 32
Online Ltd and Koo Ming Kown v Talent Property Group Limited . Both
S S
actions were struck out. He commenced action in Koo Ming Kown v Eddie
T T
31
HCA 2333/2016, unreported, 16 May 2017
32
HCA 2335/2016, unreported, 18 August 2017
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33
Ng Hak-Kim seeking the former permanent secretary of Education Bureau
B B
to revoke Chan’s appointment as supervisor. That action was also struck out.
C
He commenced action in Koo Ming Kown v Carrie Lam Cheng Yuet-Ngor 34 C
accusing the former Chief Secretary of failing to take concrete steps to
D D
investigate the conduct of Chan. That action was also struck out. Mr Chong
G
58. The defendants rely on the campaign and these actions as evidence G
that the plaintiff’s claim herein is an abuse of legal process by using this action
H H
to pressurize the defendants into a compromise over the proposal of setting up
R
pursuing an ulterior purpose unrelated to the subject matter of these R
proceedings and, but for his ulterior purpose, he would not have commenced
S S
these proceedings at all.
33
T HCA 2334/2016, unreported, 21 June 2017 T
34
HCA 2336/2016, unreported, 21 June 2017
35
[1977] 1 WLR 478 at 503F – G
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A A
60. I have no doubt that the campaign was directed at Chan’s false
B B
declaration of his doctorate qualification. The actions involved may not be
C
commendable as a means of resolution of dispute. They may be excessive C
and annoying from Chan’s or BCHK’s point of view. But as Mr Mok SC
D D
suggests, the plaintiff’s exercise of his right of freedom of expression is
falsehood, if any of them has valid basis that the plaintiff’s complaints are false
H H
and/or unjustified. Charity begins at home. So does integrity. The school,
I particularly the Primary School, is the place to nurture and foster it. I can I
feel the sense of grievance the plaintiff and other members of the alumni have
J J
against Chan who is the figure head and symbol of the Primary School whom
K the students and their parents look to as model of integrity, but who to their K
P P
61. As for the four legal actions, I think it more likely than not that
Q Q
they were instituted to vent the plaintiff’s anger at Chan for the same reason.
R They were commenced rather stupidly and probably without any or any R
proper legal advice. For the same reasons, I am unable to draw as the only
S S
irresistible inference that those actions were commenced for the purpose of
U U
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A A
62. Even if the campaign and those four actions were carried out with
B B
C ( Anthony To ) C
Deputy High
D Court Judge D
E E
the ulterior motive as alleged, it has little bearing to the question whether
F these proceedings are pursued with that same ulterior motive. Again, I cannot F
draw as the only irresistible inference that they are. The defendants have
G G
failed to show that the action is an abuse of the legal process.
H H
63. No allegation has been made that the plaintiff’s allegations are
I I
scandalous. The plaintiff has presented a good prima facie case for
J declaratory relief, which is not bound to fail. His action cannot be described J
Conclusion
L L
64. For the above reasons, I find that the plaintiff has made out a good
M M
prima facie case against the 1st, 3rd and 4th defendants and that he is entitled to
N declaratory relief, but not as against the 2nd defendant. Accordingly, I allow N
the appeal to the extent that the Re-Amended Statement of Claim be struck
O O
out and the action dismissed as against the 2 nd defendant with costs including
P the costs before the master. All the other orders of the master are upheld. I P
also make an order that the plaintiff shall have costs of the appeal against the
Q Q
1st defendant with certificate for two counsel; and the 2nd defendant shall have
R costs of the appeal against the plaintiff. R
S S
Mr Johnny Mok SC and Ms Teresa Wu, instructed by Lily Fenn & Partners,
T for the plaintiff T
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Mr K M Chong, instructed by P T Yeung & Tang,
B for the 1st and 2nd defendants B
C C
D D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
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