Case Detail

HCA 2337/2016

[2026] HKCFI 802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2337 OF 2016

_______________________

BETWEEN
	KOO MING KOWN	Plaintiff
	and
	REV. MR. MOK KONG TING (President of the Baptist Convention of Hong Kong)	1^st Defendant
	REV. MR. LAM SAU KWONG	2^nd Defendant
		(Dismissed)
	CHAN CHI MONG, HOPKINS	3^rd Defendant
	THE BAPTIST CONVENTION OF HONG KONG	4^th Defendant

_______________________

Before:

Deputy High Court Judge Jonathan Wong in Chambers

Date of Hearing:	7 January 2026
Date of Decision:	1 April 2026

_________________

D E C I S I O N

_________________

1. Introduction

1.1 This is my decision on the Plaintiff’s summons dated 12 August 2025 (“Summons”), by which the Plaintiff seeks (1) as against the 3^rd Defendant, further and better particulars of §21A(1) (“F&BPs”) of the Re-Amended Defence (“RAD”) and (2) as against, 1^st, 3^rd and 4^th Defendants, an extension of time for the Plaintiff to file his consequential replies to within 14 days after the provision of the F&BPs.

1.2 At the hearing the Plaintiff was represented by Mr Kelvin Leung (with Ms Isabel Tam) and the 3^rd Defendant by Mr Keith Chan.

2. Background

2.1 The Plaintiff commenced these proceedings in September 2016. The trial of this action is to commence on 15 September 2026, with 10 days reserved. As noted by DHCJ MK Liu at Koo Ming Kown v The Baptist Convention of Hong Kong & Ors[2026] HKCFI 1096 §25, the Plaintiff has brought more than 10 actions against the 4^th Defendant and its related parties, all concerning Pui Ching Primary School (“Primary School”) and Pui Ching Middle School ("Middle School” and collectively “Schools”). The Plaintiff is an alumnus of the Schools. As observed by K Yeung J at Koo Ming Kown v The Baptist Convention of Hong Kong & Ors[2024] HKCFI 2869 (“2024 Decision”) §103(a), the Plaintiff is passionate towards matters relating to the Schools, verging on being obsessive.

2.2 In these proceedings, the Plaintiff’s complaints are concerned with the 3^rd Defendant’s allegedly “bogus” academic qualifications. The Plaintiff seeks a declaration that the 3^rd Defendant is not a fit and proper person to serve or continue to serve as the Supervisor, principal, manager and/or teacher of the Schools.

2.3 The 3^rd Defendant was a former Supervisor of (1) the Middle School from September 2010 until August 2017 and (2) the Primary School from September 2010 to August 2018. As has been pointed out by Mr Chan, since over three years ago (in March 2022), the 3^rd Defendant had offered an undertaking that he would not seek any position or role with the Schools. I note Mr Chan’s observation that the 3^rd Defendant’s sensible position ought to have brought the proceedings (as least as against him) to a conclusion. As has been pointed out at Zamir & Woolf: The Declaratory Judgment, 4^th Ed at §4-98, the granting of a declaratory judgment is discretionary, and in practice, what will be determinative of whether relief should be granted is the court’s assessment of whether the declaration will serve some useful purpose. When I raised the foregoing with Mr Leung at the hearing, somewhat surprisingly, he frankly admitted that the issue of practicality had not been considered. To be clear, as I have not heard any full submissions, I have not made up mind on the issue. This is a matter to be resolved at the trial.

2.4 What is plain, however, is that not only has the Plaintiff been described by K Yeung J as being obsessive, he has also been described by another judge as being resourceful and a successful businessman, a combination which may lead to undesirable effect on the parties subject to the Plaintiff’s pursuit, if unchecked by the court.

2.5 Prior to the amendments made in June 2025, the Plaintiff’s case against the 3^rd Defendant’s allegedly false academic qualifications was only targeted at the 3^rd Defendant’s doctoral degree. It was and is maintained that the 3^rd Defendant’s doctoral degree was a bogus degree obtained from a bogus university.

2.6 In yet another set of proceedings (HCA 1619/2014), the Plaintiff had also sought a declaration that the 3^rd Defendant’s doctoral degree was bogus. Anthony Chan J (as he then was) made the following criticisms in his decision dated 2 June 2017[1]:

“[7] It is important to note from the contents of the RASOC that, quite clearly, Koo has conducted a personal campaign against Chan on his academic record. To advance his challenge on that matter, a press conference was held by Koo; letters were sent by him to the listed companies of which Chan was an independent non-executive director; flyers were distributed by Koo to the public; and private investigators were engaged by him in London to investigate the authenticity of Chan’s doctoral degree.
[20] …With respect, the complaint over Chan’s title has been magnified out of all proportion. I see little substance in the causes of action, and I am certainly not satisfied that the Averments are significant in this action.
[22] I regret to say that Koo’s own case suggests that he may be a vindictive litigant. In my view, there is an obvious risk that the contempt proceedings will be used by him to harass Chan prior to the conclusion of this action. It cannot be allowed. I have been referred to the case of GB Minerals Holdings Ltd v Short [2015] EWHC 1387 (TCC). It involved rather different facts and should be distinguished. In particular, the Averments here are not significant.” (emphasis added)

2.7 As noted by K Yeung J at 2024 Decision §§75 and 103, the Plaintiff sought and was granted leave to discontinue HCA 1619/2024 on 22 September 2022 in the course of the trial with indemnity costs.

2.8 By amendment made in June 2025 to the Re-Re-Re-Amended Statement of Claim, the Plaintiff’s complaints against the 3^rd Defendant’s academic qualifications have now expanded to his bachelor degrees and master degree by the inclusion of, inter alia, §§10A-10B and 11AA, 11C and 11F to the latest version of the Statement of Claim (“RRRRASOC”). The 3^rd Defendant filed his RAD on 2 July 2025.

3. The pleadings and the genesis of the Summons

3.1 The relevant parts of the pleadings are as follows.

3.2 RRRRASOC pleads as follows:

“[10A] It is furthermore averred that the 3^rd Defendant at all material times repeatedly and continuously held himself out to the 1^st and 4^th Defendants as having obtained two Bachelor degrees and a Master degree without providing any or any sufficient particulars to support such claim, including for the purposes of, or resulting in, his appointment by the 4^th Defendant as the Supervisors of the Schools for a number of terms from 2010 to 2018, including as follows:…
(a) Bachelor of Science in Engineering from Canada (“加拿大工程理學士”);
(b) Bachelor of Art (“文學士”)
(c) Master of Business Administration from the United States (“美國工商管理碩士”); and
(d) Doctor of Philosophy in Business Administration from the Ireland (“愛爾蘭管理學哲學博士”)…
[10B] It is furthermore averred that as a matter of fact and practice, Supervisors elected and nominated by the Education Department usually had attained academic qualifications at the level of university bachelor degree or above.
[11] …Having regard to the requirement of the integrity on the part of a supervisor in the education sector, and the crucial importance for a long-standing education institution to safeguard and maintain its good name and reputation, the making of a false claim of academic qualifications by the third defendant is wholly injurious to the office of a school supervisor and to the reputation of the Schools…
[11AA] Further or alternatively… the 1^st and 4^th Defendants failed to carry out verification checks on the truthfulness of the 3^rd Defendant’s representation that he had the Claimed Bachelor and Master Degrees…
[11C] …the 3^rd Defendant shall not make false representations as to his academic qualifications when standing for election as Supervisors of the Schools…
[11F] The Plaintiff furthermore sent emails to the 3^rd Defendant, raising query on his academic qualification in particular his Claimed Bachelor and Master Degrees…. The 3^rd Defendant did not respond to the said emails.” (emphasis added)

3.3 It is pertinent to note that the above paragraphs, as accepted by Mr Leung, do not aver that the bachelor and the master degrees are not genuine degrees. This is to be contrasted with the Plaintiff’s case on the 3^rd Defendant’s doctoral degree where it is expressly advanced at RRRRASOC §§9D and 10 that that the 3^rd Defendant had knowingly made a false declaration in that the doctoral degree was not a genuine degree and not granted by an accredited institution with degree awarding authority. Read fairly, the paragraphs of the RRRRASOC recited in the preceding paragraph simply advance a case that the 3^rd Defendant had refused to particularize his bachelor and master degrees to support his claimed credentials.

3.4 As noted above, the F&BPs are requested only in respect of RAD §21A which is in the following terms:

“As to paragraph 10A:
(1) The 3^rd Defendant has obtained the following qualifications:
(a) On or about 4 June 1980, the 3^rd Defendant was awarded with a degree of Bachelor of Science in Engineering (“Engineering Degree”) from University of Guelph, Canada [(“UOG”)].
(b) In or about June 1985, the 3^rd Defendant was awarded with a degree of Bachelor of Commerce (商學士) in Business Administration (“BBA Degree”) from the 私立廣大學院, a Taiwan-accredited institution.
(c) In or about November 1993, the 3^rd Defendant was awarded with a degree of Master Business Administration (“MBA Degree”) from Pacific Westerm University (Hawaii), USA [(“PWU”)]…”

3.5 RAD §21A further clarifies that the reference to “文學士” pleaded at RRRRASOC §10A was an inadvertent mistake and was intended to refer to the BBA Degree. In my view, read fairly, RAD §21A essentially provides the particulars of the 3^rd Defendant’s bachelor and master degrees which RRRRASOC complains to be missing.

3.6 Following the filing of the RAD on 2 July 2025, on 17 July 2025, the Plaintiff’s former solicitors (“SFKS”) sought discovery of the certificates of the bachelor and master degrees pursuant to RHC Order 24, rule 10.

3.7 On 18 July 2025, SFKS further requested discovery of the transcripts and “other documentary proof of the completion” of the bachelor and master degrees (“Subject Documents”).

3.8 On 23 July 2025, the Defendant’s solicitors (“Karas”), without admitting that the Plaintiff’s request fell within the ambit of RHC Order 24, rule 10, voluntarily provided to SFKS the following documents (“Certificates”):

(1)  Copies of the certificates in respect of the Engineering Degree. It was pointed out that there were three versions, with one version issued in 1980 and two versions re-issued by UOG in May 2025 upon the 3^rd Defendant’s request;
(2)  A copy of the certificate in respect of the BBA Degree;
(3)  A copy of the certificate in respect of the MBA Degree.

3.9 Karas declined to provide the Subject Documents, pointing out that there were not relevant to the issues in dispute and not necessary for the fair disposal of the cause or matter or for saving costs. In this regard, Karas pointed out that the authenticity of the bachelor and master degrees pleaded at RAD §21A was not disputed, and in any event, the Certificates should be more than sufficient to evidence the authenticity of the bachelor and master degrees.

3.10 Dissatisfied, by letter dated 24 July 2025, SFKS reiterated the request for the Subject Documents. SFKS pointed out that the Plaintiff’s case that the 3^rd Defendant was not a fit and proper person was premised on the 3^rd Defendant’s lack of integrity as evidenced by the false declaration of his academic qualifications when he participated in the election of Supervisor of the Schools. The Subject Documents were said to be directly relevant to whether the 3^rd Defendant’s claimed bachelor and master degrees were genuine and whether the 3rd Defendant’s declaration of academic qualifications was true. SFKS also invited the 3^rd Defendant’s cooperation by sending the certificate in respect of the BBA Degree to the Ministry of Education in Taiwan (“MOE”) for verification, on the basis that the exercise would “clear doubt over [the 3^rd Defendant’s] academic qualifications and narrow down the scope of dispute.”

3.11 Karas replied on 1 August 2025 to the Plaintiff’s then current solicitors (“H&C”)[2]. Karas reiterated that there was no allegation on the current pleadings that the 3^rd Defendant’s bachelor and master degrees were not genuine, and in any event, the Certificates already clearly showed that the degrees were authentic and genuine. For good measure, purely for the purpose of saving time and costs, Karas provided to H&C the following documents (“Additional Documents”):

(1) the correspondence between the 3^rd Defendant and UOG in relation to the application for the re-issuance of the certificate in relation to the Engineering Degree and the explanation from UOG on the two different versions of the re-issued certificates, explaining, inter alia, that the signatures were different from those on the original certificate as some of the legacy signature files were lost when the university updated its student information system in 1999 and confirming that the 3^rd Defendant was a student at the university and graduated with a Bachelor of Science (Engineering);
(2) a confirmation from the MOE dated 9 July 2025, inter alia, that the MOE had examined and approved the 3^rd Defendant’s graduation credentials.

3.12 On 6 August 2025, H&C requested to inspect the originals of the Certificates, which inspection took place on 21 August 2025.

3.13 On 7 August 2025, H&C asked for the F&BPs, which are in the following terms:

(1)  Whether the 3^rd Defendant had classroom attendances for each of the respective courses prior to being awarded with the [bachelor and master degrees] (“Request 1”);
(2)  If the answer to the preceding question is in the affirmative, the place where the 3^rd Defendant had classroom attendance in each of such courses, and the dates when the 3^rd Defendant commenced and completed each of such courses (“Request 2”);
(3)  If the 3^rd Defendant did not have classroom attendances in any or all of the courses and had been awarded with the respective degrees, the mode in which such course(s) was delivered to the 3^rd Defendant and the dates when the 3^rd Defendant commenced and completed each of such courses (“Request 3”);
(4)  The branch of engineering relating to the Engineering Degree, for example, whether it was civil engineering, mechanical engineering or electrical engineering (“Request 4”);
(5)  Whether the 3^rd Defendant knew at the time when he enrolled with PWU for the alleged MBA program that PWU was known to be an unaccredited institution for granting degrees (“Request 5”);
(6)  The purpose of the 3^rd Defendant to enroll with PWU, being known to be an unaccredited institution for granting degrees (“Request 6”);
(7)  The academic qualifications(s) which the 3^rd Defendant relied on in enrolling in the Program with EUI [ie the institution which awarded the doctoral degree] (“Request 7”).

3.14 On 8 August 2025, H&C wrote to the the solicitors for the 1^st, 3^rd and 4^th Defendants and stated that as the Plaintiff had requested the F&BPs, he sought an extension of time to file the Plaintiff’s replies to the defences filed by the 1^st, 3^rd and 4^th Defendants.

3.15 On 11 August 2025, Karas stated that (1) the 3^rd Defendant objected to the Plaintiff’s request for an extension of time on the basis that the Plaintiff’s reply was not dependent to any answers to the F&BPs and (2) they would provide a substantive response on the Plaintiff’s requests for the F&BPs by a separate letter.

3.16 Before Karas provided a substantive response on the F&BPs, the Plaintiff issued the Summons on 12 August 2025.

3.17 By letter dated 14 August 2025, Karas pointed out that the requests for the F&BPs were hopeless, in that they were not in respect of material facts and were plainly not necessary for the fair disposal of the cause or matter or for saving costs.

4. The applicable principles

4.1 The principles governing requests for further and better particulars are summarized at Willwin Development (Asia) Co Ltd v Wei Xing, HCA 797/2012, 25 February 2013 §§24-30 and Taching Petroleum Co Ltd v Meyer Aluminium Ltd[2020] HKCA 1005 §§31-33:

(1)  Pleadings need only contain material facts, not evidence. Material facts are those facts which must be proved in order to establish a ground of claim or defence. It is therefore only material facts that can be the subject of a proper request for further and better particulars;
(2)  The court will not order particulars of any immaterial allegation;
(3)  The purpose of further and better particulars is to permit the parties to understand the case they have to meet at trial. The modern practice of requiring discovery, witness statements, etc to be exchanged should reduce the need for further and better particulars to clarify pleadings. As long as the pleadings do convey the nature of the party’s case and state the material facts, they should not attract applications for further and better particulars even if some details that are likely to come forth in discovery or witness statements are not disclosed;
(4)  It is for the applicant to show that the order for further and better particulars is necessary for disposing fairly of the cause or matter or for saving costs. It is not sufficient for the applicant to show that the further and better particulars would be relevant.

4.2 Moreover, the following principles are to be borne in mind:

(1)  Applications to the court for particulars to be ordered should only be launched where there is a genuine need for clarification of the nature of the other side’s case in order to ensure fairness or to avoid wasting costs: Taching §31;
(2)  It is inappropriate to make requests for further and better particulars with a view to cross-examine the other side, or to expose weaknesses of the pleaded case of the other side: Taching §31 and Hong Kong Civil Procedure 2026 Note 18/12/70;
(3)  In other words, a request for further and better particulars should never be a disguised tactical move to ‘test’ the other side’s pleaded facts by microscopic examination - this is not fair and does not save costs: Luen Tat Merchandise Ltd v Mr Christmas Ltd, HCA 121/2011, 18 September 2013, §35;
(4)  An application for further and better particulars should not be used to request general information about the pleader’s case which the applicant may wish to know: Willwin §52;
(5)  Requests for further and better particulars on matters that are marginally material or not material should be discouraged after the CJR: Willwin §117;
(6)  Requests for further and better particulars cannot be made to fish for information to support potential unpleaded claims: Taching §35.

4.3 Whilst the foregoing general propositions are not controversial between counsel, Mr Leung relied heavily on Tin Shui Wai Development Ltd v Attorney General, HCCT 5 of 1987, 23 May 1991 §7:

“…Alternatively, if it is clear to the court, either from the nature of the case or from what is stated by counsel or otherwise, that the defendant intends to set up an affirmative case, which, if established, would defeat the plaintiff's prima facie case, particulars of such an affirmative case will be ordered; for otherwise there will be doubt as to what are the issues to be determined between the parties. Where the denial of a negative allegation leaves it in doubt as to what the true nature of the denial is, the pleading will be regarded as embarrassing and evasive and it will be ordered to be struck out, or amended, or particulars may be ordered of any affirmative case relied on.”

5. The F&BPs

5.1 Before I deal with the Requests individually, I should first make an overarching observation.

(i) Overarching observation

5.2 There can be no doubt that the evidence filed in support of the Summons seeks to challenge the authenticity of the bachelor and master degrees and/or the Certificates:

(1)  At Koo 23^rd §4(1), the Plaintiff points out that, in relation to the Engineering Degree, the re-issued certificates state that the 3^rd Defendant completed the honours program whereas the original certificate does not. He says that it is general knowledge that in the Canadian tertiary education system, an honours program is different from a general degree and the different versions of the certificates show that the Engineering Degree may not be genuine;
(2)  At Koo 23^rd §§4(2) and (3), the Plaintiff points out that according to UOG’s website, the university does not confer Bachelor of Science in Engineering. According to his opinion, a degree in engineering would specify the particular discipline (eg civil engineering or mechanical engineering) and the certificate would so specify. He argues that an engineering degree is “meaningless” without specifying the discipline, and in the present case, neither the original certificate nor the re-issued certificate specifies the discipline;
(3)  At Koo 23^rd §§4(7) and (8), he points out that certificates issued by educational institutions in Taiwan are considered verified when the designated verification area is stamped by an authorized individual. He notes that the certificate produced by the 3^rd Defendant in relation to the BBA Degree does not contain a verification stamp at the designated verification area;
(4)  At Koo 23^rd §4(9) he points out that he has discovered from the public domain that PWU was an unaccredited university which had closed in May 2006 following a lawsuit filed by the State of Hawaii a year earlier. He also refers to certain transcript of a hearing before the Committee on Government Affairs in the USA Senate in May 2004 on certain investigations on diploma mills and it is recorded therein that (a) PWU charged a flat fee for a degree and (b) PWU had represented to the investigator that it was not in the business of providing course training but was in the business of marketing degrees for a flat fee.

5.3 Despite the foregoing evidential challenges, as noted above, Mr Leung acknowledged that the issue of authenticity of the bachelor and master degrees is not raised in the RRRRASOC, in contrast to the positive case pleaded against the doctoral degree. I am unable to accept Mr Leung’s submission that, depending on the answers to the F&BPs, the Plaintiff can then plead a case challenging authenticity in the Plaintiff’s reply, it being a core allegation of the Plaintiff’s claim (if made).

5.4 In any event, I accept Mr Chan’s submissions that the Plaintiff’s position that he can further formulate his pleaded case depending on the answers to the F&BPs offends one of the core principles on further and better particulars, namely requests for further and better particulars cannot be made to fish for information to support potential un‑pleaded claims.

5.5 Mr Leung is therefore driven to characterize the requests for the F&BPs as being made on the basis that the 3^rd Defendant has himself raised a positive case to assert that the degrees are genuine, and by reason of Tin Shui Wai §7 cited above, the F&BPs should be ordered.

5.6 I am unable to accept Mr Leung’s submission. The bases for Mr Leung asserting that the 3^rd Defendant has raised a positive case on the authenticity of the bachelor and master degrees are said to be RAD §22AA and Chan 6^th §8.

5.7 RAD §§22AA pleads as follows:

“As to paragraph 11AA:
(1) There was no reasonable basis to require investigation into the truthfulness or veracity of the 3^rd Defendant’s Engineering Degree, BBA Degree and/or MBA Degree, The Plaintiff does not aver that 3^rd Defendant’s Engineering Degree, BBA Degree and/or MBA Degree are not genuine.” (emphasis added)

5.8 Mr Leung relies on the underlined words as showing that the 3^rd Defendant has mounted a positive case on the authenticity of the bachelor and master degrees. The position advanced by Mr Leung is a blinkered one, as he ignored the bolded words which immediately followed, namely on the Plaintiff’s own pleaded case no case of non-authenticity has been advanced. As already recited above, RRRRASOC §11AA is in fact a plea not against the 3^rd Defendant but against the 1^st and 4^th Defendants, alleging a failure on 1^st and 4^th Defendant’s part to carry out verification checks on 3^rd Defendant’s bachelor and master degrees. Read in its proper context, RAD §§22AA simply pleads that as the Plaintiff has not pleaded a case challenging authenticity, the alleged duty to carry out verification checks did not arise.

5.9 The reliance on Chan 6^th §8 does not assist the Plaintiff either. The 3^rd Defendant states as follows in Chan 6^th:

“[7] In the letter [from Karas dated 14 August 2025], I had set out the reasons why the FBP Summons is hopeless, and that I would be opposing it…”
[8] It follows that nothing in P’s 22^nd and 23^rd Affirmations in support of the FBP Summons (“P’s Affirmations”) actually has any relevance to this application…. I will not trouble the Court with a detailed response to those allegations at this stage. Suffice it to say that, insofar as P insinuate that my qualifications as pleaded in [RAD §21A(1)] were somehow not genuine and all that I obtained such qualifications knowing them not to be genuine, I do not agree. The fact that I have not specifically responded to any allegations in peace affirmations should not be taken as an admission thereof.”

5.10 The primary position taken by the 3^rd Defendant is that the requests are demurrable for more fundamental reasons. In any event, insofar as Mr Leung seeks to rely on the observations at Tin Shui Wai §7 that “if it is clear to the court, either from the nature of the case or from what is stated by counsel or otherwise, that the defendant intends to set up an affirmative case”, I accept Mr Chan’s submission that Tin Shui Wai is primarily concerned with whether the denial of a negative allegation was “pregnant” with an affirmative case. The passage relied on by Mr Leung cited above is preceded by the following:

“It is for present purposes essential to notice that what we have here is a negative allegation made by the plaintiff and traversed by the defendant. Such a traverse necessarily involves a double negative; but, although, in ordinary parlance, a double negative must involve an affirmative proposition, for pleading purposes the denial of a negative allegation does not necessarily involve the making of an affirmative proposition. Whether it does so or not depends on whether it is, on the one hand, a mere traverse; or, on the other hand, a traverse which, though negative in form, is in fact pregnant with an affirmative. The denial of a negative allegation may operate as a bare traverse and no more, whereby the defendant simply puts the plaintiff to the proof of the negative alleged. In such a case, if it is not possible to read into the mere denial of the negative allegation any affirmative allegation beyond that which is necessarily implied from such a traverse, particulars will not be ordered; but then once the plaintiff establishes a prima facie case, the defendant will be precluded from setting up an affirmative case in answer, for that would be to allow him to set up a case which he has not pleaded.” (emphasis added)

5.11 In the present case, RAD §21A, insofar as it pleads to the bachelor and master degrees: (1) is essentially an admission of RRRRASOC §10A that the 3^rd Defendant had made the representations as to his academic qualifications, save that there is a correction made to the reference “文學士” and (2) the denials set out therein have nothing to do with the authenticity of the degrees but are (a) a denial that the 3^rd Defendant was under a duty to provide particulars to support his qualifications and (b) a denial that his degrees causatively led to his appointment as Supervisor in the sense that he could not have been appointed but for his having such qualifications. It is plain from the foregoing that the pleaded issues in the present case do not engage the observations made at latter part of Ting Shui Wai §7 relied on by Mr Leung.

5.12 Mr Leung then further sought to draw a distinction between the 3^rd Defendant obtaining a certificate and whether the degree as shown by the certificate was obtained from unaccredited organizations and/or without undertaking the standard processes of academic study and assessment, relying on A v B (2009) WL2392299. I observe as follows:

(1)  First and foremost, this further basis is not pleaded in the RRRRASOC either (in contrast with the pleaded case on the doctoral degree);
(2)  In any event, Mr Leung has provided no basis in his written submissions to doubt the Additional Documents issued by UOG and the MOE, in both cases confirming the 3^rd Defendant’s credentials. When queried by the court, he submitted that if UOG “sold” the Engineering Degree to the 3^rd Defendant, it is unsurprising that it would confirm the 3^rd Defendant’s credentials. In my view, Mr Leung’s submissions are regrettable. The Plaintiff has adduced no substantive evidence, other than the Plaintiff’s own opinions, to cast (serious) aspersions against UOG;
(3)  The Plaintiff may stand on firmer grounds in relation to the MBA Degree as he has adduced some evidence to suggest that PWU was a diploma mill. However, the evidence only suggests that PWU was revealed as operating a diploma mill in 2004, more than 10 years after the 3^rd Defendant obtained the MBA Degree. Indeed, as part of the Plaintiff’s evidence, he himself refers to an article in Wikipedia which states that in December 2001, PWU received official recognition and a commendation from the 21^st Hawaii State Senate and another recognition and commendation from the 21^st Hawaii State House of Representatives. The article states that both legislative bodies honoured the university for its innovative, cost effective and quality distance education programs. The article also refers to a number of alumni who obtained degrees from PWU without questioning their credentials. As such, the Plaintiff has adduced no evidence to suggest that PWU was a diploma mill at the time when the 3^rd Defendant obtained the MBA Degree.

5.13 Viewed thus, the overarching observation is that the Requests are made in respect of issues which do not arise from the pleadings and I reject the Plaintiff’s contention that the 3^rd Defendant has raised a positive case on the authenticity of the bachelor and master degrees.

5.14 The above overarching observation would by itself provide ample reason to refuse the Requests. In any event, the Requests are individually demurrable on additional bases, to which I now turn.

(ii) Requests 1 to 3

5.15 I agree with Mr Chan that Requests 1 to 3 should not be allowed as (1) they are requests for evidence, (2) they are plainly disguised attempts to cross-examine the 3^rd Defendant or to expose weaknesses in the 3^rd Defendant’s case and (3) they have the effect of fishing for further information for potential but unpleaded claims.

(iii) Request 4

5.16 Given that by the Additional Documents, UOG has already confirmed that the 3^rd Defendant graduated on 4 June 1980 with a Bachelor of Science (Engineering), Request 4 which asks the 3^rd Defendant to specify the branch of engineering is in my view immaterial.

(iv) Requests 5 and 6

5.17 There is no pleaded case by the Plaintiff that PWU was known to be an unaccredited institution for granting degrees, whether at the time of the 3^rd Defendant obtaining the MBA Degree or at any other time. There is no factual basis at all for making these requests and the requests are a disguised form of cross-examination of testing of the 3^rd Defendant’s case.

(v) Request 7

5.18 At the hearing, when queried by the court, Mr Leung accepted that Request 7 does not arise from RAD §21(A). Mr Leung then belatedly raised an oral application to amend Request 7 which I refused. There was no explanation as to why an application for amendment was not made earlier given Mr Leung’s readiness to accept that Request 7 is not within the scope of RAD §21(A). The prejudice caused to the 3^rd Defendant by the belated attempt to salvage Request 7 (after the defect was pointed out in Mr Chan’s skeleton submissions) is clear.

5.19 For all the above reasons, I refuse the Requests.

6. Conclusion

6.1 I dismiss the Plaintiff’s application for the F&BPs and order the Plaintiff to file his replies within 14 days hereof to (1) the Re-Re-Re Amended Defence of the 1^st Defendant, (2) the RAD and (3) the Re-Amended Defence of the 4^th Defendant. For completeness, even had I allowed some or all of the Requests, I still would not have granted an extension of time pending the provision of the answers.

6.2 I also make a costs order nisi that the Plaintiff is to pay to the Defendant the costs of the Summons to be summarily assessed on an indemnity basis. I agree with Mr Chan that the Summons utterly lacks merits and the Requests amount to an abuse of the procedures and objectives for requesting further and better particulars.

6.3 The 3^rd Defendant is to lodge and serve his statement of costs (limited to 3 pages) within 7 days hereof and the Plaintiff his statement of objection (limited to 2 pages) within 7 days thereafter. Summary assessment will then be carried out on the papers.

(Jonathan Wong)
Deputy High Court Judge

Mr Kelvin Leung and Ms Isabel Tam, instructed by How & Co., for the Plaintiff

Mr Keith Chan, instructed by Karas So LLP, for the 3^rd Defendant

[1] Koo Ming Kown v Young Kwok Hung Clement & Ors, HCA 1619/2014, 2 June 2017

[2] After the hearing, there was a further change of the Plaintiff’s legal representation.

HCA 2337/2016

[2020] HKCFI 2654

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2337 OF 2016

_____________

BETWEEN
	KOO MING KOWN	Plaintiff
and
	REV. MR. MOK KONG TING (PRESIDENT OF THE BAPTIST CONVENTION OF HONG KONG)	1st Defendant
	REV. MR. LAM SAU KWONG	2nd Defendant (Dismissed)
	CHAN CHI MONG, HOPKINS	3rd Defendant
	THE BAPTIST CONVENTION OF HONG KONG	4th Defendant

_____________

Before: Deputy High Court Judge Le Pichon in Chambers

Date of Written Submissions: 7, 10 and 14 September 2020

Date of Decision (Paper Disposal): 16 October 2020

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DECISION

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1. This is the application of Chan Chi Mong, Hopkins (“D3”) for leave to appeal from this court’s decision dated 3 June 2020 (“the Decision”).

2. The Order dated 3 June 2020 (“the Order”) provides as follows:

“1. The Plaintiff’s appeal is allowed and the Order of Master Vincent Lung dated 29 April 2019 be set aside.
2. The 3^rd Defendant do within 14 days from the date hereof serve on the Plaintiff his Answers to the Plaintiff’s Request for Further and Better Particulars of the Defence of the 3^rd Defendant annexed to the F & B P Summons.
3. This 3^rd Defendant do produce within 7 days hereof the original of the document described in item 5 of the list attached to the Discovery Summons.
…”

3. The sealed Order (with penal notice) was served on D3’s solicitors on 11 June 2020.

4. On 17 June 2020, D3 took out a summons for leave to appeal the Order. The draft Notice of Appeal and the grounds of appeal were lodged on 7 September 2020.

5. Pausing there, the 2 grounds of appeal stated only concern §1 of the Order. No separate grounds were advanced in respect of §§2-3 of the Order. Nor has there been any application for a stay of §§2-3 of the Order pending the court’s decision on the leave application.

A. PRELIMINARY

6. The Plaintiff took a preliminary point and submitted that the court has a discretion to refuse to hear D3’s application for leave to appeal because of D3’s flouting of §§2-3 of the Order.

7. The respective deadlines for compliance with §§3 and 2 were 12 June 2020 and 17 June 2020. D3 has neither provided nor produced within 7 days the original PhD certificate referred to in the defence nor the answers (within 14 days of the Order), notwithstanding reminders to do so. Nor has he given any explanation for non-compliance.

8. The court has a discretion to refuse to hear an alleged contemnor although where the order that has not been complied with is the order appealed against, the proper approach is first to decide whether he has an arguable case and, if so, to decide whether the judgment should be set aside or the contempt proceedings should be adjourned until the appeal has been heard: HKCP 2020 at 52/0/14.

9. On 30 June 2020, having obtained leave to do so, the Plaintiff made an application for committal. It has been adjourned to 4 November 2020 for argument.

10. The time for compliance with §3 of the Order (for the production of the original of D3’s Ph D certificate) expired 5 days prior to D3’s summons for leave to appeal. By 13 June 2020, D3 was already in breach of §3 of the Order.

11. At a bare minimum, D3 should have applied for a stay of §§2-3 of the Order pending his leave application or sought appropriate directions from the court. He did neither. Instead, he flouted them.

12. Prima facie, D3 was in contempt. That said, in view of the upcoming hearing of the committal proceedings, I do not propose to rule on the preliminary point.

B. APPLICABLE LAW ON GRANTING LEAVE TO APPEAL

13. It is common ground that for leave to be granted, the court has to be satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

C. D3’S GROUNDS OF APPEAL

Ground 1

14. As formulated, this ground reads:

“The court erred in holding that there is a justiciable issue between the Plaintiff and D3, in that the court failed to identify any legal and/or equitable rights enforceable between the parties.”

15. D3’s submissions simply repeat those put forward during the hearing on 26 May 2020. The crux of the dispute centres on whether D3 is a fit and proper person to serve as the supervisor for the purposes of the Education Ordinance (“the Ordinance”). D3’s contention at the hearing was that only the management committee or the PSE has the power to do so under the Ordinance.

16. The court held that on a proper construction of the Ordinance, the management committee has a statutory duty to ensure that every person so appointed by it as supervisor shall be a fit and proper person, and the question whether an incumbent is a fit and proper person to hold the office of supervisor is a justiciable issue by the court: Decision at §54.

17. While not challenging the above analysis, D3 contends that it does not give rise to any legal and equitable rights enforceable between the plaintiff and D3. But as DHCJ To[1] has found, the plaintiff has a real interest in the subject matter of the declaration and that

“[D3] whose fitness is called in question, of course has an interest in opposing the plaintiff’s claim. Hence, the Council, including the 1^st defendant and each and every other member, and [D3] are appropriate contradictors.”: see the 2018 Decision at §§26 and 47.

18. In my view, there is no reasonable prospect of D3 succeeding on this ground.

Ground 2

19. This states:

“The court erred in holding that there is no certainty that no court would grant the declaration in question, notwithstanding that D3 has ceased to be the supervisor from 2018 onwards and the public statement published by D4 in February 2019.”

20. This is again nothing more than a rehash of the arguments made on 26 May 2020.

21. At §58 of the Decision, this court held that the relevant time for determining whether the pleaded cause of action is viable is the date the proceedings were commenced and that subsequent events cannot retrospectively invalidate what was a viable cause of action.

22. Both now and at the date of the hearing, no authority has been cited to show that that holding is wrong.

23. The complaint now is that as no relevant time or period was specified for the declaration sought and granted, the declaration has the effect of a permanent injunction. Further, it was said that the relevant time to consider whether a person is fit and proper is when approval is sought from the PSE under the Ordinance but not otherwise.

24. D3 cites Re A (admission as barrister) [2018] 2 HKLRD 1245 and Layne v AG of Grenada [2019] UKPC 11. Those authorities concern applications for admission to the Bar and in each case the ruling is that the court would consider the applicant’s character at the time of the application and not previously. They do not lay down any general principle that a court cannot grant a declaration that a person is not a fit and proper person for the time being, based on the facts and evidence before the court.

25. In the present case, the relief the plaintiff applied for is based on the present status of D3. The effect of the declaration made is spelt out in §73 of the Decision. All it does is to put the onus on D3 to show that he is a reformed person. Hence, the declaration is not a permanent injunction.

26. It is said that there is no evidential basis for suggesting a recurrence of the conduct of D3 in the foreseeable future. But the matters set out in §§69-70 of the Decision speak for themselves: the likelihood of a recurrence is neither far-fetched nor fanciful.

27. D3 argues that the PSE may take a different view on the fit and proper issue. As he is not a party, he would not be bound by the declaration which could produce an absurd result.

28. The PSE’s approval will only arise upon a recommendation of the management committee that D3 be appointed as the supervisor under section 38 (2) of the Ordinance. Any recommendation could only be made by the management committee after consideration of the court’s declaration to the effect that D3 is not a fit and proper person to be supervisor. If no such recommendation is forthcoming, there will be no question of the PSE approving such a recommendation.

29. In any event, even assuming that the PSE should be joined as a party, “no cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party …”: See RHC, O.15 r. 6.

D. CONCLUSION

30. For the reasons stated above, neither of the grounds put forward by D3 for leave to appeal has any reasonable prospect of success.

31. Accordingly, D3’s application is dismissed. There is to be an order nisi of costs in favour of the plaintiff with certificate for two counsel, such costs to be summarily assessed (directions being given separately) and payable forthwith.

	(Doreen Le Pichon)
	Deputy High Court Judge

Mr Benjamin Yu SC, and Mr Kelvin Leung, instructed by How & Co, for the plaintiff

Messrs K M Lai & Li, for the 3^rd defendant

[1] See the Decision dated 4 May 2018 of DHCJ To ("the 2018 Decision").

HCA 2337/2016

[2020] HKCFI 1040

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2337 OF 2016

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BETWEEN

	KOO MING KOWN	Plaintiff
and
	REV. MR. MOK KONG TING (PRESIDENT OF THE BAPTIST CONVENTION OF HONG KONG)	1st Defendant
	REV. MR. LAM SAU KWONG	2nd Defendant (Dismissed)
	CHAN CHI MONG, HOPKINS	3rd Defendant
	THE BAPTIST CONVENTION OF HONG KONG	4th Defendant

_____________

Before:

Deputy High Court Judge Le Pichon in Chambers

Date of Hearing:	26 May 2020
Date of Decision:	3 June 2020

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DECISION

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1. This is an appeal by Koo Ming Kown (“the plaintiff”) from the decision of Master Vincent Lung dated 29 April 2019 (1) allowing the application of Chan Chi Mong Hopkins (“D3”) to strike out the plaintiff’s re-amended statement of claim (“RASOC”); (2) dismissing the plaintiff’s summons for further and better particulars of D3’s defence; and (3) dismissing the plaintiff’s summons for discovery.

I. BACKGROUND

2. The relevant background appears in the Decision of DHCJ To (“the judge”) dated 4 May 2018 (“the 2018 Decision”) at §§6-8 (set out below) which I gratefully adopt:

“6. The relevant background of this case can be gleaned from the following paragraph of the pleadings filed by [The Baptist Convention of Hong Kong] BCHK in HCA 946/2003 (on appeal to the Court of Appeal in CACV 2/2007) concerning the trademark ‘培正’ [2]:
‘For over a century, not only has the 1^st Plaintiff [Pei Zheng Middle School (the Guangzhou predecessor the Pui Ching Schools in Hong Kong)] been in the service as a provider of quality education to numerous students, but the 1^st Plaintiff has also, through the members of its school board and with the assistance of its alumni, established and/or advised, assisted and supervised in the establishment and/or administration of other primary and secondary schools under and by reference to the name “培正” and the red and blue insignia of “培正” throughout southern China, including Hong Kong and Macau.’
7. At the heart of this case is the plaintiff’s fight for the good name and reputation of the Schools by ensuring that the Primary School is not subject to the control of [D3], whose integrity the plaintiff considered highly questionable. On the plaintiff’s case, [D3], who was previously appointed by BCHK as the supervisor of both the Primary School and the Middle School and who still continues to serve as the supervisor of the Primary School, is not a ‘fit and proper person’ for that appointment in that:
(1) [D3] represented to the Hong Kong Christian Council that he has the qualification of ‘Ph.D., M.B.A., B.Sc (Eng)’;
(2) [D3] has claimed on a number of occasions that his Ph.D. degree was obtained in 2007 from The European University of Ireland;
(3) on 25 February 2000, it was reported that The European University of Ireland was operating without official sanction;
(4) on 14 November 2005, the scandal of bogus degrees awarded by The European University of Ireland was exposed;
(5) on 24 September 2011, it was reported that The Higher Education Authority had expressed concern about the unlicensed operation of The European University of Ireland;
(6) the plaintiff has taken steps to confirm that the Ph. D. degree purportedly granted by The European University of Ireland is not a valid degree granted by an accredited degree-awarding authority; and
(7) it was further confirmed that The European University of Ireland was a limited company registered in Ireland which ceased to exist since 2010.
8. The plaintiff’s complaint to BCHK against [D3]’s integrity, his misrepresentation of his doctorate qualification, and his fitness as supervisor of the Primary School was met with a public notice dated 18 December 2015 issued by BCHK defending [D3]. BCHK purported to justify [D3]’s continuation in the office of supervisor by saying that ‘the educational qualification of the nominee is not a requirement for the appointment’. The plaintiff considered BCHK’s approach irresponsible and unsatisfactory. He thought BCHK should have investigated [D3] and his academic qualification and provided an account of the serious matter. But despite his repeated complaints from December 2015 to August 2016 that it was wrong for BCHK to defend [D3] and to have allowed him to stay in his position as supervisor without resolving the issue of his integrity, [D1] and BCHK failed and/or refused to carry out any investigation or to take any appropriate action. This led the plaintiff to commence the present action against [D1] and [D2] and further to seek to amend the amended writ of summons and amended statement of claim to join D3 and BCHK as necessary parties.”

3. The hearing before the judge was an appeal by D1 and D2 from the decision of Master Ho dated 17 July 2017 allowing D3 to be joined as a party.

4. On 4 May 2018, the judge dismissed D1 and D2’s application for striking out, granted the plaintiff leave to join D3 and BCHK (“D4”) as parties, and granted the plaintiff leave to amend the statement of claim. The RASOC was filed on 1 September 2017 and served on D3.

5. On 30 October 2018, D3 issued a strikeout summons which came before Master Vincent Lung whose decision is the subject matter of the present appeal.

II. CHRONOLOGY

6. D3 held the positions of supervisor of the Primary School and of the Middle School (collectively “the Schools”) as from 1 September 2010 and thereafter was renewed annually.

7. The plaintiff commenced this action on 9 September 2016 against the Rev Mr Mok Kong Ting (President of BCHK) (“D1”) and the Rev Mr Lam Sau Kwong (“D2”) when, after making numerous complaints from late 2015 to BCHK that D3 was not a fit and proper person to be supervisor of the schools, D1 and D4 failed to take any appropriate remedial action.

8. D3 ceased to be supervisor of the Middle School on 30 April 2017 but remained as supervisor of the Primary School until 31 August 2018.

9. As earlier noted, Master Ho allowed the plaintiff’s application to join D3 as a party on 17 July 2017.

10. The RASOC dated 1 September 2017 was served on D3.

11. D3’s defence was eventually filed on 15 August 2018, several months after the date of the 2018 Decision.

12. On 30 October 2018, D3 took out the present strikeout summons.

13. On 29 April 2019, Master Lung allowed the application and struck out the RASOC against D3. He also dismissed the plaintiff’s summonses for further and better particulars and for discovery.

III. THIS APPEAL

14. The plaintiff’s claim is for a declaration that D3 is not a fit and proper person to serve or continue to serve as the supervisor of the Primary School. The further and/or alternative declaration (that the appointment of D3 as supervisor of the Primary School be revoked with immediate effect) is no longer sought.

15. D3’s summons was issued pursuant to RHC O 18, r 19 for an order that the RASOC is against D3 be struck out on the ground that:

(a) it discloses no reasonable cause of action; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the court.

(A) D3’s striking out application
(1) Abuse of process

16. Mr Kelvin Leung, counsel for the plaintiff submitted that D3’s strikeout application is an abuse of process and D3 should not be allowed to re-litigate the same issues which have already been decided by the judge. The thrust of the plaintiff’s submission was that D3 had been served with the order of Master Ho. He did not apply to stay Master Ho’s order and took no action to challenge that joinder.

17. In November 2017 when the judge heard the appeal by the D1 and D2 from Master Ho’s order, D3 was already a party to the action as he had already been served. The plaintiff submitted that in those circumstances, the question whether the plaintiff has a case against D3 as well as whether the plaintiff is entitled to declaratory relief should not be re-litigated.

18. But D3 was not a party to the summons before the judge (which was an appeal brought by D1 and D2): that summons was not served on him. While he did not seek to intervene, and thus did not appear before the judge, he was not asked to participate at the appeal hearing either. In those circumstances, I do not agree that he must be bound by the Decision.

19. While professing not to be relying on issue estoppel or res judicata, Mr Leung nonetheless sought to draw analogies with those doctrines. That approach might have been prompted by the realisation that they cannot be shown to apply in the circumstances of this case as will be explained below.

20. A decision in an interlocutory matter does not give rise to any res judicata. As noted in HKCP 2020 at 18/19/10:

“The basic rule assumes that the court has made a final determination on an issue in litigation. But where there is simply an exercise of discretion in an interlocutory proceeding, there may be no final determination of an issue giving rise to a res judicata: see Re Mullen v Conoco Ltd [1998] QB 382, at 390G-391B, 396F-G”

21. Issue estoppel is founded on an abuse of process. It is essential that the court can pinpoint an abuse that exists by virtue of the attempt to raise in subsequent proceedings claims or issues which could and should have been raised in earlier proceedings: per Ma CJ in Ko Ho Yu v Chiu Pik Yuk (2012) 15 HKCFAR 72 at §83.

22. The onus is on the party alleging abuse to establish the subsequent litigation is an abuse: Yifung Properties Ltd v James Nicholas Barrie Smith [2019] 1 HKLRD 36, at §18.

23. In Chu Hung Ching v Chan Kam Ming & others [2001] 1 HKC 396, the Court of Appeal referred with approval to the dicta in Pocklington Foods Inc v Alberta Provincial Treasurer (1995) 123 DLR (4^th) 141 that the raison d’etre of the principle of res judicata or issue estoppel lies in what is just and reasonable.

24. As Rogers VP explained in Pei Zheng Middle School & another v China Pui Ching Educational Foundation Ltd & others, unrep., CACV 2/2007, 6 August 2007 after referring to Chu Hung Ching (at §12):

“if an issue has been distinctly raised and decided in one proceeding where both parties were represented, it would be unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them. There would be exceptions for example if the matter had not been decided on merits or there was a change of circumstances or new evidence.” (Emphasis added)

25. It will be noted that in the present case, D3 was not represented at the hearing before the judge. Moreover, there has been a material change of circumstances since the date of the 2018 Decision.

26. §5(2) of D3’s defence dated 15 August 2018 pleaded that his term of office “will expire on 31 August 2018”. §9 of D3’s affidavit dated 9 November 2018 stated that he “ceased” to be supervisor “since 1^st September 2018”.

27. It transpires from §13 of D4’s defence dated 16 August 2018 that

(i) on 11 May 2018, the management committee conducted an election of the supervisor for the 2018/2019 year and elected D3 to continue to become the supervisor for 2018/2019;
(ii) [D4] caused the management committee to conduct a re-election as it would not approve D3’s election;
(iii) a re-election was held on 15 June 2018 “and the final result was that [D3] would cease to be supervisor of the Primary School starting from 1 September 2018”.

28. The actual outcome of the re-election result was not revealed although one would expect that a new supervisor would have been elected for 2018/2019[1].

29. D4 also caused a public announcement to be published on 27 February 2019 stating, inter alia, that “[D4] is of the view that [D3] is not a fit and proper person to serve as the Supervisor of the Primary School”.

30. The matters referred to in §§26-27 and 29 above had not occurred when the matter was considered by the judge.

31. Leaving aside the fact that D3 was not represented at the hearing before the judge, the developments since the 2018 Decision are significant and material as they are precisely the situations envisaged in Pocklington and fall squarely within the exceptions mentioned by Rogers VP in the Pei Zheng case.

32. So, quite apart from the fact that the 2018 Decision is a decision in an interlocutory matter which does not give rise to any res judicata, the material change in circumstances and new evidence justify reconsideration by the Court for what is involved is not re-litigation of an identical issue of law or fact.

(2) Declaratory relief requirements

33. At §20 of the 2018 Decision, the judge held that:

“… an applicant seeking to invoke the court’s jurisdiction to grant declaratory relief has to show:
(1) that he has a real interest in the subject matter of the declaration (the real issue requirement);
(2) that he has a real interest in obtaining a declaration against the adverse party (the real interest requirement); and
(3) that the adverse party is a proper contradictor (the proper contradictor requirement).”

34. The judge concluded in favour of the plaintiff. As I understand it, his summary of the legal requirements for declaratory relief is common ground. The dispute concerns the question whether on the relevant facts, those requirements are satisfied.

35. The material issue raised in the RASOC is whether D3 should be removed from office as supervisor of the Primary School for not being a “fit and proper person”: D3 held that office when he was joined as a party. He remained in office until 31 August 2018.

36. The plaintiff relied the 2018 Decision and the judge’s reasoning and conclusion on each of the 3 requirements.

37. Mr Paul Lam SC, leading counsel for D3, submitted that

(a) the plaintiff cannot establish that he has a “real interest” in the subject matter of the declaration;
(b) the only persons who enjoy legal rights/powers regarding the appointment of supervisor are (i) the management committee (which has the right or power to make a recommendation and to request the PSE to withdraw his approval); (ii) the PSE (who has the legal right to approve/refuse a recommendation or to withdraw an approval); and
(c) the relationship between D4 and the management committee is governed by D4’s articles of association and the general principles of company law and its decisions are an internal matter and that do not concern the plaintiff.

38. It was further submitted that even a member of D4 (which the plaintiff is not), or its Council has no right to challenge a decision made by the management committee.

39. The correctness of the propositions set out in §37-38 requires a close consideration of Part IIIA of the Education Ordinance, Cap 279 (“the Ordinance”) and an analysis of how (if at all) its provisions affect the duties and obligations of the management committee of the Primary School in relation to the appointment of supervisor.

40. The Primary School is a “school without IMC” for the purposes of the Ordinance and to which the provisions in Part IIIA of the Ordinance apply.

41. Every school to which Part IIIA applies is managed by its management committee (defined as meaning the managers of the school) responsible, inter alia, for ensuring that the Ordinance is complied with: §§32 and 33.

42. “Manager” in relation to a school means a person who is registered as a manager under §29. One of the grounds for refusing registration is that the person is not “a fit and proper person” to be a manager: §30(1)(b). A person who has been registered as manager may have his registration cancelled by the Permanent Secretary for Education (“PSE”) under §31 on, inter alia, any ground specified in §30 which applies to the manager, whether or not such ground existed at the time when he was registered as a manager of the school: see §31(1)(b).

43. The tenure of office of a supervisor continues until the occurrence of one of the 4 events set out in §36, namely, the supervisor ceasing to be a manager, resigns, the PSE approval is withdrawn under §37 or another manager of the school is approved under §38(2).

44. §38(1) mandates the management committee to recommend for approval by the PSE another manager of the school to be the supervisor within one month of the occurrence of any of the 5 events therein set out. Specifically, in sub-paragraph (e), the event is where the supervisor is no longer acceptable as such to the majority of the management committee. §38(2) provides that the PSE “shall approve” the manager recommended under subsection (1), subject only to his overriding discretion under §35(1) to refuse if he is not satisfied that the person recommended is a fit and proper person to be supervisor.

45. The structure and scheme of the Ordinance in relation to a school without IMC is clear: it is the statutory duty of the management committee within one month of there being no supervisor under the subsections of §38(1) to recommend another manager for approval. It is not the case, as D3 submitted, that the management committee is not obliged to make a recommendation.

46. The consistent theme running through the Ordinance is that those in charge of managing a school without IMC must be “fit and proper” persons. This attribute is required of a “manager”, namely a person registered under §27 and extends to a “supervisor” since no approval can be given under §35 unless that person is a manager of the school. Moreover, since the management committee is made up of managers, the “fit and proper” attribute attaches to each member of the management committee.

47. It is apparent from the analysis above that, contrary to the D3’s submissions, the management committee and each of its members has a duty to ensure compliance with the Ordinance. That necessarily entails ensuring that the supervisor is a fit and proper person.

48. In my view, the Ordinance is so structured that the attribute is implicit in any recommendation for supervisor put forward to the PSE for approval. Since the duty is a continuing duty, it is incumbent on the management committee when it transpires that the officeholder is not a fit and proper person to take the necessary steps envisaged in §38(1)(e).

49. The evidence is that the management committee of the Primary School appoints its supervisor on an annual contract, coinciding with the academic year. The approval of the PSE of the appointment of D3 as supervisor of the Primary School took place on or before the academic year commencing 2010 and has continued without any interruption until he ceased to be supervisor of the Primary School 1 September 2018. No other approval is before the court.

50. Given the above analysis, the Achilles heel of D3’s submissions is the premise that there are no constraints on the management committee and each of its members may act as they wish provided the acts are not prohibited by the articles and the general principles of company law.

51. D3’s approach overlooks the statutory responsibilities of the management committee to ensure, inter alia, that the school is managed satisfactorily and that the Ordinance is complied with: see §33 of the Ordinance.

52. The judge opined[2] (at §23 of the 2018 Decision) that the resolution of the issue whether D3 should be removed from the office as supervisor of the Primary School for not being a “fit and proper person” would have the effect of securing compliance with the statutory requirements as well as protecting and maintaining the good name and reputation of the Schools. He concluded that it was a real and not a theoretical question.

53. In his written submissions, D3 referred to Fred Jackson v Attorney General [1980] HKLR 323 in which the Court of Appeal held that the power to make declarations is confined to making declarations on matters that are justiciable in the courts. That decision does not take matters further because, in substance, the real issue and real interest requirements reflect the same principle although differently expressed. Mr Lam did not demur from that statement.

54. The conclusion reached by the judge is equally applicable to the RASOC because when D3 became a party to the action, he was in office as supervisor of the Primary School. In my view, the question whether an incumbent is a fit and proper person to hold the office of supervisor of the Primary School is a justiciable issue by the court.

(3) Order 18, rule 19

55. HKCP 2020 at 18/19/4 addresses how the discretion of powers under rule 19 is to be exercised:

“[i]t is only in plain and obvious cases that the court should exercise its summary powers to strike out … The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out.
If the court does not think the matter to be clear beyond doubt or it fails to be satisfied that there is no reasonable cause of action or that the proceedings are frivolous or vexatious, then, there should be no striking out. One must be careful not to drive the plaintiff from the judgment seat nor should the court decide difficult points of law … Where the legal viability of a course of action is sensitive to the facts, an order to strike out should not be made. The mere fact that the case is weak and not likely to succeed is no ground for striking it out.”

(a) Sub-rule (1)(a)

56. In so far as the RASOC is concerned, D3 cannot possibly succeed under head (a) in light of §54 above.

(b) Subsequent events: effect on sub-rule (1)(a)

57. I turn to consider whether the fact that D3 ceased to be supervisor as from 1 September 2018 (well after the service of the writ on him) has any, and if so, what effect.

58. In determining whether the plaintiff’s pleaded cause of action against the defendant is viable, logically, the relevant date for that determination must be the date the proceedings were commenced. As a matter of principle, subsequent events cannot and should not retrospectively invalidate what was a viable cause of action.

59. The court was not referred to any authority to the effect that subsequent events can or are to be taken into account for the purposes of applying head (a).

(c) Subsequent events: relevance to heads (b), (c) and (d)

60. That said, subsequent events could be of relevance to heads (b), (c) and (d) and may well affect the issue of costs at the end of the day.

61. D3 ceased to be supervisor over 20 months ago. In those circumstances, Mr Lam asked, rhetorically, what purpose would the proceedings continue to serve? He submitted that the issue is rendered academic.

62. The court was referred to the plaintiff’s reply where (at §15) the plaintiff stated that the allegation that D3 is not a fit and proper person to serve as the supervisor of the Primary School is irrespective of whether his term of office has expired. If and to the extent that it has expired, D3 is not a fit and proper person to continue to serve as supervisor of the Primary School “after 31 August 2018 or at any other time”.

63. This was repeated in §38 of the plaintiff’s 7^th affirmation (“P 7^th”) which went on to state that the declaration sought “will have a long-lasting declaratory effect”. At §40, the plaintiff considered that if a “declaration of long-term effect” is not granted by the court because of D3’s cessation,

“there will be a real risk that he would return to put his hands on the Primary School one way or another in the future. Nothing other than a [d]eclaration can prevent [D3] from being re-appointed as the Supervisor of the Primary School or getting approval from the Education Bureau.”

64. The plaintiff referred to the fact that since his first appointment in 2010, D3 has been re-elected for 7 academic years in a row. Based on that track record, the plaintiff stated (at P 7^th, §43) that he

“believed that [D3] will seek to be re-elected … for the next academic year. Indeed, [D3] is free to stand for election any time in the future unless [D3’s] integrity is proved questionable and it is declared that he is not a fit and proper person to serve or continue to serve as the [s]upervisor of the Primary School.”

65. D3 submitted that the declaration sought was one with a long-lasting effect: “forever” was the description used and that the plaintiff’s pleading and evidence set out above appeared to be at odds with §89 of his written submissions where the plaintiff maintained that “D3 is not barred from being elected as Supervisor in future”.

66. It was submitted that in principle it is not right for the plaintiff to seek what would in effect be a permanent injunction preventing D3 from ever holding office as supervisor when there is no evidential basis that at any time in the future: (i) D3 would stand for election; or (ii) the management committee would nominate D3 as supervisor.

67. The Court was referred to D4’s Memorandum and Articles of Association which shows that the management committee is under the control of D4, the “supreme authority”: see §57 of the Articles.

68. Further, given D4’s public announcement published in the newspapers in February 2019, it was said that it is almost inconceivable that D4 would make or approve such an appointment in the future and that the election of D3 as supervisor is but a future hypothetical possibility that is highly unlikely to happen. In those circumstances, the declaration sought was said to be valueless.

69. What the facts show is that notwithstanding the plaintiff’s complaints and commencement of this action, D3 nevertheless stood as candidate for and was elected to that office for the academic year 2017/2018. Even the 2018 Decision did not deter him from standing for the 2018/2019 election nor did it deter the management committee from electing him to that office.

70. But for the re-election that had to take place because of D4’s refusal to approve D3’s appointment with the final result described in §27 (iii) above, D3 would still be in office.

71. In view of the public announcement made in February 2019, it is unlikely that D4’s approval would be forthcoming in the event of D3 standing for election in the future and being elected again, absent good reason. Nonetheless, it is a possibility that cannot be ruled out altogether from ever happening and circumstances may exist to warrant a change of mind on the part of D4.

72. §89 of the plaintiff’s written submissions (which were said to be inconsistent with the plaintiff’s pleading and evidence), contemplated this possibility. It went on to state that “D3 could, as in Re “A” (admission as a barrister), CACV 161/2017; [2018] 2 HKLRD 1245, at the time of the election, demonstrate that he is a fit and proper person (for example, with evidence of reform)”.

73. What I understand to be the plaintiff’s position is that a declaration would put the onus of demonstrating that D3 is a reformed person on D3. If the plaintiff’s claim were struck out, and D3 were to stand for election in the future, the plaintiff will have to start a similar action all over again and that would not be right.

74. While at the close of the hearing the Court was reminded that the present application was made under all the 4 heads in O 18, r 19(1), in his oral submissions, Mr Lam did not specifically address the Court on any of the remaining heads.

75. Given the nature of the points made, it would appear that head (d) would be the most relevant. There is a distinction between the viability of a cause of action and the relief that would be appropriate. For a claim to be struck out as being an abuse of process, it will have to be shown with certainty that, at trial, no court would grant the declaration sought.

76. Whether it would be appropriate to grant the declaration sought is plainly highly fact-sensitive and a matter for the trial judge to decide. In these circumstances, D3 is not in a position to show with certainty that no court would grant the relief the plaintiff seeks.

(4) Conclusion

77. For the reasons stated above, the plaintiff’s appeal is allowed and the Master’s decision striking out the RASOC be set aside.

(B) The other summonses

78. There were 3 summonses before the Master. Because of his decision to strike out the RASOC, the remaining 2 summonses relating to a request for further and better particulars and for discovery respectively were dismissed.

79. As his order dated 29 April 2019 is now set aside, those summonses are restored.

(1) The request for further and better particulars dated 24 October 2018

80. It is stated in D3’s written submissions (§42) that if he fails in his striking out application, he will answer the request.

81. Accordingly, there will be an order in terms of §1.

(2) The discovery summons

82. It is stated in the plaintiff’s written submissions (§103) that he will only pursue the discovery summons for item 5 which is the original certificate dated 10 October 2007 referred to in §14 of D3’s defence.

83. Accordingly, there will be an order in terms of §1.

IV. ORDER

84. I make the following order:

(1) The plaintiff’s appeal is allowed and the order dated 29 April 2019 is set aside.
(2) There be an order in terms of §1 of the plaintiff’s summons dated 24 October 2018.
(3) There be an order that the 3^rd defendant do produce within 7 days of this order the original of the document described in item 5 of the list attached to plaintiff’s summons dated 30 October 2018.

85. So far as costs are concerned, there is to be an order nisi of costs in favour of the plaintiff of

(1) this appeal and of the hearing dated 29 April 2019
(2) the summons dated 24 October 2018; and
(3) the summons dated 30 October 2018

such costs to be with certificate for counsel and in the case of the hearing on 29 April 2019, with certificate for 2 counsel, such costs to be taxed if not agreed and payable forthwith.

	(Doreen Le Pichon)
	Deputy High Court Judge

Mr Kelvin Leung, instructed by How & Co, for the plaintiff

Mr Paul Lam SC and Mr Bosco Cheng, instructed by Lui & Law, for the 3^rd defendants

[1] At the hearing, the Court was informed that Dr Wong is the current supervisor of the Primary School.

[2] This was necessarily based on the evidence before the judge. At the date of the hearing (November 2017), D3 was the supervisor of the Primary School.

HCA 2337/2016

[2018] HKCFI 967

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2337 OF 2016

________________________

BETWEEN
	KOO MING KOWN	Plaintiff
	and
	Rev. Mr. MOK KONG TING	1^st Defendant
	(President of the Baptist Convention of Hong Kong)
	Rev. Mr. LAM SAU KWONG	2^nd Defendant
	CHAN CHI MONG, HOPKINS	3^rd Defendant
	THE BAPTIST CONVENTION OF HONG KONG	4^th Defendant

________________________

Before: Deputy High Court Judge To in Chambers

Date of Hearing: 28 November 2017

Date of Decision: 4 May 2018

_______________

D E C I S I O N

_______________

Introduction

1. This is an appeal from the decision of Master Andy Ho made on 17 July 2017 ordering, inter alia:

(1)   that the 1^st and 2^nd defendants’ application to strike out the plaintiff’s claim be dismissed (the “striking out application”);
(2)   that the plaintiff be granted leave to join Chan Chi Mong, Hopkins (“Chan”) and The Baptist Convention of Hong Kong (“BCHK”) as the 3^rd and 4^th defendants respectively in this case; and
(3)   that the plaintiff be granted leave to amend the statement of claim.

2. The plaintiff is an alumnus and former honorary director of the Hong Kong Pui Ching Schools (the “Schools”), comprising of the Hong Kong Pui Ching Primary School (the “Primary School”) and the Hong Kong Pui Ching Middle School (the “Middle School”). He is also a contributor to the funds for educational purposes of the Schools through substantial donations made over a long period of time.

3. BCHK is a body corporate which runs and manages the Primary School and Middle School. The 1^st defendant is the President[1] of BCHK and the Chairman of its Council. The 2^nd defendant is the Executive Secretary of BCHK. Chan was the supervisor of the Middle School until 2017 and is currently the supervisor of the Primary School, whose appointment was approved by the Permanent Secretary for Education (the “Permanent Secretary”).

4. On 9 September 2016, the plaintiff commenced the present action against the 1^st and 2^nd defendants. On 28 November 2016, the 1^st and 2^nd defendants took out the striking out application. Then, on 23 March 2017 and 11 July 2017, the plaintiff applied respectively to join Chan and BCHK and to re-amend the statement of claim.

5. The plaintiff claims for declaratory relief that:

(1) Chan is not a “fit and proper person” within the meaning of the Education Ordinance (Cap 279) to serve or continue to serve as the supervisor of the Primary School;
(2) further or alternatively, the appointment of Chan as the supervisorof the Primary School ought to be revoked with immediate effect.

The background

6. The relevant background of this case can be gleaned from the following paragraph of the pleadings filed by BCHK in HCA 946/2003 (on appeal to the Court of Appeal in CACV 2/2007) concerning the trademark “培正” [2]:

“ For over a century, not only has the 1^st Plaintiff [Pei Zheng Middle School (the Guangzhou predecessor the Pui Ching Schools in Hong Kong)] been in the service as a provider of quality education to numerous students, but the 1^st Plaintiff has also, through the members of its school board and with the assistance of its alumni, established and/or advised, assisted and supervised in the establishment and/or administration of other primary and secondary schools under and by reference to the name ‘培正’ and the red and blue insignia of ‘培正’ throughout southern China, including Hong Kong and Macau.”

7. At the heart of this case is the plaintiff’s fight for the good name and reputation of the Schools by ensuring that the Primary School is not subject to the control of Chan, whose integrity the plaintiff considered highly questionable. On the plaintiff’s case, Chan, who was previously appointed by BCHK as the supervisor of both the Primary School and the Middle School and who still continues to serve as the supervisor of the Primary School, is not a “fit and proper person” for that appointment in that:

(1)   Chan represented to the Hong Kong Christian Council that he has the qualification of “Ph.D., M.B.A., B.Sc (Eng)”;
(2)   Chan has claimed on a number of occasions that his Ph.D. degree was obtained in 2007 from The European University of Ireland;
(3)   on 25 February 2000, it was reported that The European University of Ireland was operating without official sanction;
(4)   on 14 November 2005, the scandal of bogus degrees awarded by The European University of Ireland was exposed;
(5)   on 24 September 2011, it was reported that The Higher Education Authority had expressed concern about the unlicensed operation of The European University of Ireland;
(6)   the plaintiff has taken steps to confirm that the Ph. D. degree purportedly granted by The European University of Ireland is nota valid degree granted by an accredited degree-awarding authority; and
(7)   it was further confirmed that The European University of Ireland was a limited company registered in Ireland which ceased to exist since 2010.

8. The plaintiff’s complaint to BCHK against Chan’s integrity, his misrepresentation of his doctorate qualification, and his fitness as supervisor of the Primary School was met with a public notice dated 18 December 2015 issued by BCHK defending Chan. BCHK purported to justify Chan’s continuation in the office of supervisor by saying that “the educational qualification of the nominee is not a requirement for the appointment”. The plaintiff considered BCHK’s approach irresponsible and unsatisfactory. He thought BCHK should have investigated Chan and his academic qualification and provided an account of the serious matter. But despite his repeated complaints from December 2015 to August 2016 that it was wrong for BCHK to defend Chan and to have allowed him to stay in his position as supervisor without resolving the issue of his integrity, the 1^st defendant and BCHK failed and/or refused to carry out any investigation or to take any appropriate action. This led the plaintiff to commence the present action against the 1^st and 2^nd defendants and further to seek to amend the amended writ of summons and amended statement of claim to join Chan and BCHK as necessary parties.

The legal principles applicable to striking out, joinder and amendment of pleading

9. The principles applicable to striking out and amendment of pleadings are trite. Counsel have no dispute that the following principles are applicable.

10. An order to strike out would only be granted by the court in plainand obvious cases. Disputed facts are to be taken in favour of the party sought to be struck out. The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out. The burden lies on the party applying: see Hong Kong Civil Procedure [3], Ha Francesca v Tsai Kut Kan (No 1) [4], Yiu Ka Fung Vincent v Info-Vantage Ltd [5].

11. Where an application to amend a statement of claim which is sought to be struck out has been made, the court’s approach would be to deal with the striking out application on the basis of the facts as pleaded in the proposed amendments. If on that basis, the amended pleading should not be struck out, then the application to amend should be allowed and the striking-out application dismissed: see Hong Kong Civil Procedure 2017.[6]

12. Pursuant to Order 15, rule 6 of the Rules of the High Court (“RHC”), all parties to the dispute should be brought before the court at the same time such that the dispute may be resolved effectively and fully determined without delay, inconvenience and expense of separate actions and trials even if there is no cause of action against the intended party: Lin Man Yuan v Kin Ming HoldingsInternational Ltd [7]. There is no need to show merit or to prove the strength of one’s case: see Wong Shan Shan v IO of Yue Wah Mansion [8].

13. Under Order 20, rule 5, all amendments which are necessary to enable the real questions and controversy between the parties to be decided should be allowed unless it will result in prejudice to the other party which maynot compensated for in costs. The principle has been stated by Lord Brandon in Ketteman v Hansel Properties Ltd [9] as follows:

“ First, all such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided. Secondly, amendments should not be refused solely because they have been made necessary by the honest fault or mistake of the partyapplying for leave to make them: it is not the function of the court to punish parties for mistakes which they have made in the conduct of their cases by deciding otherwise than in accordance with their rights. Thirdly, however blameworthy (short of bad faith) may have been a party’s failure to plead the subject matter of a proposed amendment earlier, and however late in the application for leave to make such amendment may have been, the application should, in general be allowed, provided that allowing it will not prejudice the other party. Fourthly, there is no injustice to the other party if he can be compensated by appropriate order as to costs.”

These principles remain the guiding principles after the Civil Justice Reform: see Topwell Corp Ltd v Kwan Kam Kee [10]. Unless it is clear that the proposedamendments will not succeed at trial, leave should be given to the plaintiff to amend, leaving the issue to trial for determination.

14. It is trite that joinder and amendment are together designed to save rather than to destroy and to cure which is capable of cure in relation to the pleadings: see Hong Kong Civil Procedure 2017 [11]. In relation to the defendants’ striking-out application, it is necessary for the court to consider all the proposed re-amendments of the plaintiff, inclusive of the joinder of Chan and BCHK as new parties.

Legal principles on court’s jurisdiction to grant declaratory relief

15. Counsel also have no dispute about the legal principles governing the court’s jurisdiction in granting declaratory relief. They also refer me to the same authorities. Order 15, rule 16 of the RHC is a convenient starting point to consider this jurisdiction. This rule provides:

“ No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby,and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed.”

In fact, the court’s power to grant declaratory relief is not derived from this rule, but from its inherent jurisdiction. This rule only reflects the width of this inherent jurisdiction. The following is what Lord Brandon said of this inherent jurisdiction in the House of Lords decision in In re F (Mental Patient: Sterilisation), albeit in an entirely different context [12]:

“ I turn, fourthly and lastly, to the jurisdiction to make declarations. I do not think that it is right to describe this jurisdiction as being under R.S.C., Ord. 15, r. 16. The jurisdiction is part of the inherent jurisdiction of the High Court, and the rule does no more than say that there is no procedural objection to an action being brought for a declaration whether any other kind of relief is asked for or available or not.”

From the above dictum and the rule, it is plainly obvious that the court’s jurisdiction to grant declaratory relief is extremely wide. The jurisdiction may be exercised whether the applicant has any cause of action or whether any relief is sought or available or not.

16. The court’s jurisdiction to grant declaratory relief was considered by Clough JA in Ip Cheung Kwok v Ip Siu Bun & Others [13]. His Lordship referred to the leading English Court of Appeal authority of Guaranty Trust Coof New York v Hannay & Co [14] on the requirements necessary to invoke the court’s jurisdiction and the test to be applied in the exercise of that jurisdiction. He said [15]:

“ Lord Goff cited with approval at p.1091E–F the following dictum of Pickford LJ in Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536 (C.A.) at p. 562:
‘ I think therefore that the effect of the rule [now RHC Order 15, rule 16] is to give a general power to make a declaration whether there be a cause of action or not, and at the instance of any party who is interested in the subject matter of the declaration.’
Lord Goff also cited with approval at p. 1091G–H the often cited passage in the judgment of Bankes L.J. in the Guaranty Trust case at p. 572 which includes the following dictum:
‘ There is, however, one limitation which must always be attached to it, that is to say, the relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the court to grant or contrary to the accepted principles upon which the court exercises its jurisdiction. Subject to this limitation I see nothing to fetter the discretion of the court in exercising a jurisdiction under the rule to grant relief, and having regard to general business convenience and the importance of adapting the machinery of the courts to the needs of suitors I think the rule should receive as liberal a construction as possible.’
I am fortified in the view I have expressed above by the fact that in Maerkle v British Continental Fur Co Ltd [1954] 1 W.L.R.1242 (C.A.)and Thorne District Council v Bunting [1972] Ch 470 the court did nottreat the question of locus for declaratory relief in each case as raising a strict jurisdictional issue but as raising the question whether the court’s jurisdiction to grant declaratory relief was properly exercisable.”
(My emphasis underlined.)

Thus, to invoke this jurisdiction, the applicant does not need to have a cause of action against the adverse party. What he needs to establish his locus is to show he has a real interest in the subject matter of the declaration, ie the lis (the “real issue requirement”).

17. The same approach was also adopted by the later English Court of Appeal in In re S (Hospital Patient: Court’s Jurisdiction) [16]. In the exercise ofthat discretion, the court adopts a practical utility approach and will not impose nice tests to determine the precise legal standing of the applicant. The rationale was as follows:

“ … 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 obtaining a decision against an adverse party the court will not impose nice tests to determine the precise legal standing of that claimant.
….
…. If the law were powerless to give practical help in cases such as this, the invitation to others similarly placed in future to take the lawinto their own hands, with the risk at least of unseemly tussles and atworst of violence, would be obvious. This is pre-eminently an area in which the common law should respond to social needs as they are manifested, case by case. Any statutory rule, unless framed in termsso wide as to give the court an almost unlimited discretion, would bebound to impose an element of inflexibility which would in my view be wholly undesirable.”

18. Thus, in determining whether an applicant has the necessary interest in the subject matter of the declaration, the court adopts the practical utility approach by asking the question whether the court’s jurisdiction to grant declaratory relief was properly exercisable instead of applying nice tests as if it were raising a strict jurisdictional issue.

19. As for the meaning of “interest” in this context, I think it useful to refer to the meaning given by Lord Fraser in the Scottish case of R v IRC Exp National Federation of Self-Employed and Small Businesses Ltd [17]. It meant a real interest of a material character to be enforced or protected as opposed to a merely academic or hypothetical question or one raised out of curiosity. The law is the same in England. In Re S (Hospital Patient: Court’sJurisdiction) [18], the English Court of Appeal had to consider the rival claims by the wife and son on the one part and the cohabitee on the other to the right to care for an adult patient incapable of expressing his wishes in respect of his treatment or care. The Court of Appeal adopted the following principle derived from Lord Dunedin’s speech in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [19]:

“ The rules that have been elucidated by a long course of decisions in the Scottish courts may be summarized thus: The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.”

The English Court of Appeal also quoted the following simple statement of Lord Goff in In re F (Mental Patient: Sterilisation) [20]:

“ Here the declaration sought does indeed raise a real question; it is far from being hypothetical or academic. The plaintiff has a proper 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.”

Hence, in addition, an applicant has to show that he has a real interest of a material character to be enforced or to protect or a genuine and legitimate interest in obtaining a decision from the court against an adverse party (the “real interest requirement”). In other words, he has to show he has an interest in the outcome of the relief sought as oppose to actually obtaining that relief in his favour. The other side of the same coin is that he has to show that the adverse party is a proper contradictor, ie someone who also an interest to oppose (the “proper contradictor requirement”).

20. Thus in summary, an applicant seeking to invoke the court’s jurisdiction to grant declaratory relief has to show:

(1)   that he has a real interest in the subject matter of the declaration (the real issue requirement);
(2)   that he has a real interest in obtaining a declaration against the adverse party (the real interest requirement); and
(3)   that the adverse party is a proper contradictor (the proper contradictor requirement).

The grounds for striking out

21. The defendants’ grounds for striking out the plaintiff’s claim are:

(1)   lack of standing to sue;
(2)   avoidance of streamline procedure under Order 53 of the RHC;
(3)   the absence of a proper contradictor;
(4)   internal management of BCHK;
(5)   no claim against the 1^st and 2^nd defendants (I shall deal with this head under (3)); and
(6)   frivolous, vexatious and abuse of the legal process.

Lack of standing to sue

22. Mr Chong, counsel for the 1^st and 2^nd defendants, submits that a plaintiff does not have the necessary standing to bring a claim for declaratory relief unless he could establish a logical connexion between the relief sought by him and the complaint of fault allegedly committed by the defendant. This ground is in fact directed at the real issue requirement and real interest requirement. Mr Chong said that in this action, the subject matter of the dispute as formulated in the plaintiff’s Re-Amended Statement of Claim is “the good name and reputation of [the Primary School]”. It was alleged that Chan’s false claim of having a doctorate degree has injured the good name and reputation of the Primary School. He then referred to the plaintiff’s affirmation filed in opposition to the defendants’summons for striking out in which the plaintiff asserted that he does not have personal interest in the outcome of these proceedings and that his motive is to protect the reputation of the Primary School and Middle School. Mr Chong submits that any damage to the goodwill and reputation of the Primary Schoolcaused by Chan for not being a “fit and proper person” will not cause any loss or damage to the plaintiff. Hence, he argues that the plaintiff has no locus to bring a claim for declaratory relief.

23. Though Mr Chong appreciates that a cause of action is not necessary to support a claim for declaratory relief, he fails to appreciate that what the plaintiff needs to show is a real interest in the subject matter of the declaration, a real interest in the outcome of the claim for relief and a proper contradictor. Even though the subject matter of the dispute as formulated by the plaintiff in his Re-Amended Statement of Claim is “the good name and reputation of [the Primary School]”, the material issue raised is whether Chan should be removed from the office as supervisor of the Primary School for not being a “fit and proper person”. Under sections 30(1)(b) and 35(1) of the Education Ordinance, being a “fit and proper person” is an essential or fundamental requirement for a manager and a supervisor of a school. It is theplaintiff’s case that by reason of Chan’s highly questionable conduct as outlinedin paragraph 7 above (largely in relation to his claim to have a doctorate degree) he is not considered a “fit and proper person” to be appointed or to continue to serve as supervisor of the Primary School. The resolution of this issue in controversy would have the important effect of securing compliance with the statutory requirements as well as protecting and maintaining the good name and reputation of the Schools. Hence, the plaintiff’s request that the questionas to whether Chan is a “fit and proper person” as a school supervisor is a real and not a theoretical question for which it is proper to seek a decision from the court.

24. Next, Mr Chong argues that the plaintiff has no real interest in the outcome of the proceedings. He suggests that the plaintiff is merely a busybody and is not entitled to the relief sought. He quoted the following dictum of Megarry VC in Malone v Metropolitan Police Commissioner [21] in support of the proposition that the relief sought must affect the plaintiff himself:

“ True, a plaintiff who seeks such a declaration may have no cause of action; but it suffices if he is claiming ‘relief.’ This, I think. means relief from ‘[some] real liability or disadvantage or difficulty’ which affects him (see Thorne Rural District Council v. Bunting [1972] Ch. 470, 477, 478), and not mere matters of interest or curiosity or the like.”

Mr Chong also draws support for Malone from the English Court of Appeal caseof In re S (Hospital Patient: Court’s Jurisdiction) [22], in which Malone was cited. He quotes the following dicta of Sir Bingham MR [23] :

“ (4) … in cases of controversy and cases involving momentous and irrevocable decisions, the courts have treated as justiciable any genuine question as to what the best interests of a patient require or justify. In making these decisions the courts have recognised the desirability of informing those involved whether a proposed course of conduct will render them criminally or civilly liable; they have acknowledged their duty to act as a safeguard against malpractice, abuse and unjustified action; they have recognised the desirability, in the last resort, of decisions being made by an impartial, independent tribunal.
(5) … It cannot of course be suggested that any stranger or officious busybody, however remotely connected with a patient or with the subject matter of proceedings, can properly seek or obtain declaratory or any other relief (in private law any more than public law proceedings). But 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 obtaining a decision against an adverse party the court will not impose nice tests to determine the precise legal standing of that claimant.”

25. It is true that the plaintiff is not seeking any personal relief in his favour. He is seeking a declaration that Chan is not a “fit and proper person”and/or that he be removed from his position as supervisor. That is not anything which would affect or benefit the plaintiff personally. However, what the plaintiff needs to show in this respect is that he has an interest in the outcome of the claim for declaratory relief as oppose to his obtaining a personal relief for himself. I do not think by that dictum Megarry VC was imposing a strict requirement that relief means “some real liability or disadvantage or difficulty” which affects the applicant because it would be blatantly inconsistent with Order 15, rule 16 which expressly provides that thecourt may make binding declarations of right whether or not any consequentialrelief is or could be claimed. I think his Lordship was quoting those types of relief as examples of what he tagged on the latter part of that dictum, “not mere matters of interest or curiosity or the like”. On the question of locus for declaratory relief, the courts have always adopted a liberal approach. In Ip Cheung Kwok v Ip Siu Bun & Others, Clough JA said that the court did not treat the question of locus as raising a strict jurisdictional issue but as raising the question whether the court’s jurisdiction to grant declaratory relief was properly exercisable. In In re S, which was relied on by Mr Chong, Sir Bingham MR also held that in the exercise of that jurisdiction, the court adopts a practical utility approach and will not impose nice tests to determine the precise legal standing of the claimant. This is the yardstick to be applied.

26. Whether the plaintiff has shown an interest in the outcome of the proceedings is question of fact. On the unchallenged facts pleaded, which must be assumed in favour of the plaintiff, he is an alumnus and former Honorary Director of the Schools who has a real interest in protecting and maintaining the good name and reputation of the Schools by ensuring that the Primary School is not controlled by a person who is “unfit and improper” and not qualified for appointment as supervisor under the Education Ordinance. He has made substantial donations to the Schools amounting until about 2014 close to around $30 million. Such donations speak for the genuineness and legitimate interest of the donor in the well-being of the Schools, his interest in protecting and maintaining their good name and reputation. The plaintiff must have real interest in seeing to that not only the donation is and would continue to be applied for the proper administration of the Schools, including the Primary School, and the well-being and education of its students. He certainly has a genuine interest in seeing to that the Primary School is placed under the supervision of a manager whose conduct and integrity is beyond reproach. It would put the Primary School into ridicule if its supervisor obtained a fraudulent doctorate degree and professes himself to be the holder of a proper doctorate degree to the sponsoring body of the Schools. The plaintiff’s position is far from that of a stranger to the Schools, an ordinary alumnus, or someone who out of general generosity made some occasional donations. He is a committed alumnus and donor truly interested in the well-being of the Primary School. He could not be regarded as a busybody.

27. I note that the donations were not made to BCHK, but to the Schools. However, the Primary School not being itself a legal entity is not capable of holding assets. Whilst the donors, including the plaintiff, no doubtthought that their donations were made for the educational or ancillary purposes of the Schools and were indeed made to the Schools, in reality, the donations have become funds received and controlled by BCHK. On the other hand, BCHK’s mission extends vastly beyond the administration of the Primary School and Middle School. It is the sponsoring body of at least 12 schools using the name of “Pui Ching”. That does not in any way reduce the plaintiff’s interest in the well-being of the Primary School and its students.

28. Furthermore, the students of the Primary School are receiving education from the Primary School. They are beneficiaries of BCHK, if not just the Primary School itself. But they are in no position to challenge the propriety of the appointment of the supervisor. They are, like the patient in In re S, incapable of expressing their wishes in respect of the quality of education they receive from the Primary School. They are the silent beneficiaries who have all the more needs of a “guardian” like the plaintiff to protect their interest insofar as the quality of the education they receive in the Primary School is concerned.

29. All in all, I consider the plaintiff has demonstrated a real interest in the subject matter of the declaratory relief and a real interest in the outcome of these proceedings.

Avoidance of streamline procedure under Order 53 of the RHC

30. Mr Chong attacks the plaintiff’s action as an avoidance of the streamline procedure under Order 53 of the RHC by challenging the statutory regime for appointment of supervisors and therefore an abuse of process. Theappointment and removal of school supervisors is regulated by sections 34 to 39of the Education Ordinance. The Permanent Secretary for Education is vested with power to appoint the first and subsequent supervisors and to remove the appointed supervisors. A sponsoring body as an applicant for registration of the school is entitled to make recommendation for the appointment of the first supervisor only. In respect of the subsequent appointments, it is the management committee which makes recommendation for the Permanent Secretary’s approval: section 38(1). The Permanent Secretary may refuse to approve the appointment of a supervisor on the ground that the nominee is not a “fit and proper person to be the supervisor”: section 35(1). The tenure of the office of the appointed supervisor continues until the Permanent Secretary removes him as supervisor and/or a school manager, or the supervisor resigns of his own volition: section 36.

31. On the basis of these provisions, Mr Chong argues that neither the sponsoring body nor its officers who sit in the school management committee have power to remove a supervisor. Nor is it a prerequisite requirement for the Permanent Secretary to act on the recommendation of the sponsoring bodyor the school management committee to remove a supervisor. The Permanent Secretary’s decision whether to appoint or remove a person as a supervisor is an exercise of his power under the Education Ordinance which is amendable to judicial review. He therefore argues that it is an abuse of legal process by seeking redress by a claim in private law for infringing of rights which are protected by public law.

32. With respect, that is a wishful reading of the Ordinance. What Mr Chong did not refer to was section 38. Under the statutory regime, the management committee of the school has power to remove a supervisor who is not acceptable to the majority of the committee and recommend to the Permanent Secretary to approve another nominee as supervisor: section 38(1). The Permanent Secretary shall appoint that nominee unless he is of the opinion that the nominee is not a fit and proper person: section 38(2) and section 35. Nothing in the provisions referred to by Mr Chong or in any other provisions of the Ordinance could prevent a committee member, willing in the faithful discharge of his duty as a committee member, from persuading his fellow members to pass a resolution to the effect that the supervisor is no longer acceptable as supervisor. The committee shall then be under a statutory dutypursuant to section 38(1)(e) to recommend another manager within one month for the approval of the Permanent Secretary. The Permanent Secretary may remove the supervisor under section 37(d) and shall, pursuant to section 38(2),appoint the nominee as supervisor. The management committee or BCHK, to which the management committee reports or is accountable, is not powerless in the removal of a supervisor and in recommending appointment of a replacement.

33. On the other hand, it is not the public duty of the Permanent Secretary to actively involve himself in the management of the school and appointment of its supervisor. These are functions within the realm of the management committee. The Permanent Secretary’s function in the approval of supervisor is a passive one, being to approve the appointment of the first supervisor recommended by the sponsoring body or a nominee recommended by the management committee subsequently, subject to his residual power to screen out any nominee whom he regards as not being a fit and proper person to be a manager or supervisor.

34. Article 59 of the Articles of Association of BCHK provides:

“ [BCHK] shall use its best endeavors to ensure that all school(s) managed by itself or under its direct or indirect supervision are operated in all respects to the full satisfaction of the Permanent Secretary for Education and in the best interest of the students, including but not limited to ensuring compliance with the applicable legislation and such other requirements as specified from time to time by the Permanent Secretary for Education.”

As it is a statutory requirement that a supervisor must be a “fit and proper person”, BCHK, the Council and the management committee have a primary duty to ensure that its nominee is a “fit and proper person” for appointment as supervisor; and once appointed, continues to a person of such, and if not acceptable as such a person or on any other grounds, to seek his removal by invoking the process under section 38(1)(e) and 38(2). The management committee cannot leave it to the Permanent Secretary to police the discharge of the management committee’s duty by regularly reviewing if the supervisor is a fit and proper person or continues to be acceptable by the management committee.

35. The plaintiff’s claim is against the 1^st and 2^nd defendants, Chan and BCHK, not against the Permanent Secretary. He is not challenging the Permanent Secretary’s approval of Chan’s appointment or his refusal to revoke Chan’s appointment. In fact, insofar as revocation of Chan’s appointment is concerned, the procedures for revocation of his appointment has not been invoked and no decision in that regard has yet been made by the Permanent Secretary. The plaintiff is seeking the defendants to properly discharge their duty by investigating his complaint and, if found justified, to cause the management committee to invoke the procedure under section 38(1)(e) and section 38(2). In effect, he is seeking the management committee, through the defendants, to pass a resolution that Chan is not acceptable as a supervisor and to recommend a replacement to be appointed by the Permanent Secretary. The Permanent Secretary’s earlier decision to approve Chan’s appointment and what the plaintiff is seeking to do are wholly separate matters. While the decision of the Permanent Secretary in approving or in removing a supervisor isamenable to judicial review, that cannot afford protection against a claim by an interested person against the defendants for their failure to properly discharge their duty. The defendants who have an interest in opposing the plaintiff’s claim cannot force the plaintiff down the path of judicial review to avoid opposing the claim against them for their own failure to perform their duty. I therefore do not think it necessary to consider the defendants’ argument on judicial review.

Absence of a proper contradictor

36. Mr Chong argues that the proper contradictor for the plaintiff’s claim is the Permanent Secretary and not BCHK. The basis of his proposition is that BCHK has no power under the Ordinance to revoke a supervisor’s appointment. That basic premise, as I have found, is founded on an erroneous reading of the provisions of the Education Ordinance and a misunderstanding of the statutory regime for appointment and removal of supervisors.

37. Mr Chong also referred me to the plaintiff’s actions in HCA 2334/2016 and HCA 2336/2016 in which the plaintiff’s actions against the Permanent Secretary and the Chief Secretary for their approval of Chan’s appointment as supervisor of the Primary School had been struck out. He therefore argues that a declaratory relief against the 1^st and 2^nd defendants and BCHK even if granted will not compel the Permanent Secretary to remove Chan, and will therefore serve no purpose. It is not clear what was the basis for the striking out. But the plaintiff’s case for declaratory relief is well set out and, if successful and followed through could lead to Chan’s removal by invoking the procedure under section 38(1)(e) and 38(2).

38. Mr Chong argues that the Primary School is an institute founded exclusively for educational purpose and hence, is a charitable trust. As the court’s jurisdiction over charitable trusts is to be invoked by the Secretary for Justice as parens patriae, the Secretary for Justice is the proper person to represent the interest of the charitable trust.

39. Then, Mr Chong further submits, quoting Ip Cheung Kwok v Sin Hua Bank Trustee Ltd [24], that the court will not exercise the discretionary power to grant a declaration in the absence of a party whose interest will be affected by the declaratory judgment, namely the Permanent Secretary and the Secretary for Justice. But I do not see how a declaration that Chan is not a “fit and proper person” to serve or continue to serve as a supervisor of the Primary School would affect the interest of the Permanent Secretary or the Secretary for Justice. As I have indicated, the function of the Permanent Secretary in the appointmentof supervisor is a passive one. If the management committee considers a serving supervisor is not acceptable, it shall be the Permanent Secretary’s duty to revoke his appointment. The Permanent Secretary as well as the Secretary of Justicehas no interest in Chan’s removal or the appointment of a particular supervisor.

40. My real concern is whether the defendants are proper contradictorsto the plaintiff’s claim for declaration. Under its articles of association, BCHK has not more than 10,000 members. Under article 38, it has the following officers:

(1)   a President;
(2)   a 1^st Vice President;
(3)   a 2^nd Vice President;
(4)   a 3^rd Vice President;
(5)   an Honorary Secretary;
(6)   an Honorary Assistant Secretary;
(7)   an Honorary Treasurer; and
(8)   an Internal Auditor.

41. Under article 39, the operations of BCHK shall be managed by the Council which is the supreme authority of BCHK when general meetings are not being held. Under article 44, officers of BCHK shall be officers of the Council in the following manner:

(1)   the President shall be the chairman of the Council;
(2)   the 1^st Vice President shall be the 1^st Vice chairman of the Council;
(3)   the 2^nd Vice President shall be the 2^nd Vice chairman of the Council;
(4)   the 3^rd Vice President shall be the 3^rd Vice chairman of the Council;
(5)   the Honorary Secretary shall be the Honorary Secretary of the Council;
(6)   the Honorary Assistant Secretary shall be the Honorary Assistant Secretary of the Council;
(7)   the Honorary Treasurer shall be the Honorary Treasurer of the Council; and
(8)   the Internal Auditor shall be the Honorary Internal Auditor of the Council.

42. Under article 45, the Council may employ for BCHK an Executive Secretary, Deputy Executive Secretary, Assistant Executive Secretaries and a paid staff.

43. Under article 46, the Council may recommend to BCHK in its general meeting the setting up of any department to carry out any of the affairs of BCHK and for the removal of any department. One of these departments is the Education Department which oversees the management committee of the Primary School. Accordingly, the Council has direct authority and responsibility through the Education Department over the management committee of the Primary School.

44. The plaintiff sues the 1^st defendant in his capacity as the Chairman of BCHK (presumably meaning the “President”)and the 2^nd defendant in his capacity as the General Secretary of BCHK (presumably meaning the “Honorary Secretary”). In the light of the constitution of BCHK as I have outlined above, the 1^st defendant is in fact the President of BCHK as well as the Chairman of the Council which is the supreme authority of BCHK. The 2^nd defendant, who is named “Lam Sau Kwong”, was the person who signed onthe Public Notice under the title as Executive Secretary. He is neither the General Secretary as pleaded nor the Honorary Secretary according to the articles of association. Mr Mok SC, leading counsel for the plaintiff, has erroneous submitted that the Public Notice wassigned by the Chairman and General Secretary. It was issued by BCHK under the authority of the 1^st defendant as President of BCHK and Chan Wai Sang as Honorary Secretary of BCHK. Neither the 1^st defendant nor Chan Wai Sang signed on the Public Notice. The 2^nd defendant signed under his title as Executive Secretary. Presumably, his signature was put on the Public Notice for the purpose of authentication. He is not the Honorary Secretary of BCHK and not a member of the Council, but a salaried employee occupying the position of Executive Secretary of BCHK. Probably, the plaintiff has mistaken Lam Sau Kwong for Chan Wai Sang.

45. The plaintiff also wrote to Chan directly by email asking for clarification about his doctorate degree. But Chan did not respond. Despite the overwhelming evidence offered by the plaintiff, BCHK presumably without first making any full or proper investigation and/or giving any satisfactory account as requested, disregarded the evidence submitted and issued the PublicNotice on 18 December 2015 defending Chan and concluded that the accusation of integrity against Chan (in the context of his false claim for his doctorate qualification) was unfounded. It was not stated at all in the Public Notice that there was any or any serious investigation made into the substance of the plaintiff’s complaint. As can be noted from the 2^nd defendant’s defence, otherthan not admitting the plaintiff’s accusation that Chan made a false declaration of his doctorate qualification, he advanced no indication whatsoever that the 1^st or 2^nd defendant or indeed BCHK have ever taken the plaintiff’s complaint seriously or have taken any or any serious steps to investigate the complaint or a positive case that the doctorate degree was awarded by a degree awarding and accredited university. It is therefore plain that the 1^st and 2^nd defendants and BCHK have turned a blind eye to the plaintiff’s complaint and openly taken the stance that the plaintiff’s complaint was unsubstantiated and should be ignored. Between 24 December 2015 and 22 September 2016, the plaintiff wrote no less than six emails to the 1^st defendant and BCHK repeating his complaint. They were all ignored. The court is the only forum where the issue of Chan’s fitness as supervisor of the Primary School could be ventilated.

46. Mr Chong referred me to the case of Yu Hung Hsua Julie v The Chinese University of Hong Kong [25]in which an associate professor of the university sought a mandamus to oblige the dean and vice chancellor to intervene in the examination panel’s decision. Chung J held that there was no legal basis for contending that the dean and vice chancellor had power or was under a duty to intervene in the examination panel’s decision. Likewise, Mr Chong argues, a recommendation for appointment of supervisor is a decision collectively made by the Council and under BCHK’s constitution the 1^st and 2^nd defendants have no power to override the Council’s decision. It is not clear from the judgment in Yu Hung Hsua Julie what was the basis of the court’s decision. I must assume that case turns on its own fact and on the construction of the constitutional documents of the university. That decision may have no bearing on the present case.

47. The issue of the Public Notice was an act of BCHK. The Council is the supreme authority of BCHK. In an action against BCHK, it would not be inappropriate to sue the Council, including each and every member of the Council, as its supreme authority. I have found, by virtue of article 58 of BCHK’s Articles of Association that BCHK, the Council and the management committee have a primary duty to ensure that its nominee for appointment as supervisor is a “fit and proper person”; and once appointed, continues to a person of such, and if not acceptable as such a person or on any other grounds, seek his removal by invoking the process under section 38(1)(e) and 38(2). Accordingly, the members of the Council have an interest to oppose the plaintiff’s claim. They mustbe appropriate contradictors. The Council, as the supreme authority of BCHK,has overall responsibility and vicarious liability for the management committee. If a declaration to the effect that Chan is not a “fit and proper person” is made, it is difficult to see how and why the Council acting properly would not in the ordinary course of event give effect to the declaration by causing the management committee to take appropriate steps. Chan, whose fitness is called in question, of course has an interest in opposing the plaintiff’s claim. Hence, the Council, including the 1^st defendant and each and every other member, and Chan are appropriate contradictors.

48. However, the position of the 2^nd defendant is wholly different. He is not a member of the Council or a member of the management committee of the Primary School. His position is a paid Executive Secretary of BCHK whosigned on the Public Notice to authenticate the document. He acted at the direction of the Council or BCHK. He is in no position to give effect to the declaration, if made. He has no interest in opposing the plaintiff’s claim. He could not be a proper contradictor. For this reason, the Re-Amended Statement of Claim must be struck out as against the 2^nd defendant. I suspect Chan Wai Sang was intended by the plaintiff to be the 2^nd defendant. But I cannot speak on the plaintiff’s behalf. In any event, if BCHK is joined, there is no need to amend the name of the 2^nd defendant. The plaintiff and his legal team made a mess of the capacity or identity of the 1^st and 2^nd defendants. He has to be penalised in costs.

Internal management of BCHK

49. Mr Chong, quoting Hong Kong Housing Services for Refugees Ltd v SJ [26], argues that BCHK as a corporate body for charitable purpose holding the Primary School and its property absolutely as its own property and not as a trustee. The only limitation to its power is that it could not act ultra vires its power and duties specified in its constitution. Next, he argues that the internal management rule applicable to body corporates applies equally to a charitable corporation. Thus the court has no jurisdiction to intervene in the internal management of BCHK unless it has acted ultra vires. He quoted a number of examples. As the cases show, they all turn on the question of construction of the constitution of the body corporates, but do not establish the general principle contended by Mr Chong that whatever a body corporate does within its powers is unchallengeable by an interested person if it is in breach of any duty or obligation owed by the body corporate.

50. First, Mr Chong quoted the case of Ex parte Berkhampstead FreeSchool [27] in which the master and usher of a charity school founded by statute misappropriated the property of the school but its visitor refused to remove them. It was held that the visitor had exclusive jurisdiction over the internal management of the charity school:

“ This is a Royal Foundation under which the Master and Usher are Corporators. As long as they remain so, and the Visitor does not think proper to remove them, they must in a Court of Justice have the Enjoyment of all the Revenues, which belong to them by the same Instrument, that gives them the Corporate Character. …”

The exclusive internal management rule clearly turned on the construction of the instrument creating the foundation.

51. In Reg v Hull University Visitor, Ex p Page [28], Lord Browne-‌Wilkinson said:

“ …It is established that, a university being an eleemosynary charitable foundation, the visitor of the university has exclusive jurisdiction to decide disputes arising under the domestic law of the university. Thisis because the founder of such a body is entitled to reserve to himselfor to a visitor whom he appoints the exclusive right to adjudicate uponthe domestic laws which the founder has established for the regulation of his bounty.”

That was a case of judicial review in which the House of Lords adopted the statutory ultra vires theory based on the proposition that the power had been conferred on the decision-maker on the underlying (and fictional) assumption that the power was to be exercised only within the jurisdiction conferred, in accordance with fair procedures, and reasonably in a Wednesbury sense. It had all to do with construction of the domestic law or constitutional document of the body corporate.

52. Next, Mr Chong referred to Thomas v Bradford University [29]in which Lord Griffiths said:

“ 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 only to apply to those who are members of the foundation because only they are subject to those domestic laws. Nevertheless the jurisdiction has always been held to apply both to admission to and removal from office in the foundation ….”

This dictum had all to do with construction of the domestic law applicable to members of the University. It had nothing to do with a claim by a non-member for breach of its duty and obligation under public law.

53. In the present case, who to be appointed as members of the management committee or whom to be nominated as the supervisor are all matters of internal management. The court has no jurisdiction to dictate BCHK’s choice of supervisors. But BCHK is operating schools in Hong Kong subject to the provisions of the Education Ordinance. The fitness for appointment of a supervisor in accordance with the statutory regime as opposed to the appointment of a particular qualified individual is clearly a matter of public interest and not just a matter of internal management of BCHK. BCHK has an obligation to discharge its duties in the management of the business and affairs of the Schools in a fair, accountable and transparent way. As the plaintiff asserted, integrity is the most important element in the education field. The public would rely on the academic qualification of the supervisor to assess the capability of the management of the Schools. If so, the false declaration of academic qualification by Chan may well give the general public the false impression as to the capability and integrity of the management committee of the Primary School and the quality of the education it offers. The nomination of supervisor clearly goes beyond matters of internal management to which the court should not have access.

Frivolous, vexatious and abuse of the legal process

54. Mr Chong attacks the plaintiff’s case as frivolous, vexatious and abuse of the legal process on two fronts. First, he quotes my decision in KooMing Kown v Pacific Online Ltd [30]in which I held it would be frivolous and vexatious to continue with an action which is obviously unsustainable and that using the process of the court to continue with such an action would be an abuse of the legal process. Though the plaintiff herein was also the plaintiff in that case and one of the issue was also Chan’s integrity arising out of his false declaration of his doctorate qualification, the context is wholly different. That case was about Chan’s appointment as a non-executive director in a public company. In the present case, the facts indicate at least there is a prima facie case for declaratory relief.

55. Alternatively, the defendants alleged that the plaintiff has an ulterior motive in bringing this action to embarrass and humiliate the 1^st, 3^rdand 4^th defendants by using Chan’s academic qualification. In furtherance of the said motive, the plaintiff has been pursuing an extra legal relief by way of mock trial involving the public through directing mass media to publish articlesabout Chan’s academic qualifications and emails to the 1^st defendant that were also forwarded to members of the alumni association and other schools under the Pui Ching family.

56. The defendants refer, in particular, to an allegation made by the alumni of the Primary School, including the plaintiff, prior to the commencement of the present proceedings. The allegation was that BCHK and one of its affiliated schools have misappropriated funds and resources of the Primary School. Since then, the alumni, including the plaintiff, have advocated for reform of the management of the Primary School, enhancing the transparency of its management, and setting up an incorporated managementcommittee of the Primary School in lieu of the present management committee. BCHK rejected the proposal of setting up an incorporated management committee of the Primary School. The defendants allege that in order to pressurize BCHK into acceding to the alumni’s request, the plaintiff and other alumni then started a campaign and a series of litigation against BCHK and its officers. The campaign includes:

(1)   distributing fliers outside the Primary School and the church of which Chan is a member, at the time when the plaintiff could not say for sure that Chan’s doctorate degree was conferred by an unauthorized degree awarding institute;
(2)   giving information to the media in order to raise widespread criticism in the public arena about Chan’s academic qualification and his credibility;
(3)   copying letters and emails from the plaintiff to the 1^st defendant and Chan to the media, government officials, public bodies and the general public, to raise widespread criticism in the public arena about Chan’s academic qualification and credibility;
(4)   using abusive language and remarks to the 1^st defendant and Chan; and
(5)   publishing a congratulation note on the local newspaper to raise public concern about Chan’s academic qualification.

57. In addition, the plaintiff commenced two actions against two public companies in which Chan was a director seeking his removal on the ground of his false declaration of his doctorate qualification: Koo Ming Kown v Pacific Online Ltd [31]and Koo Ming Kown v Talent Property Group Limited [32]. Both actions were struck out. He commenced action in Koo Ming Kown v Eddie Ng Hak-Kim [33]seeking the former permanent secretary of Education Bureau to revoke Chan’sappointment as supervisor. That action was also struck out. He commenced action in Koo Ming Kown v Carrie Lam Cheng Yuet-Ngor [34] accusing the former Chief Secretary of failing to take concrete steps to investigate the conduct of Chan. That action was also struck out. Mr Chong relies on thoseactions as evidence of the plaintiff’s ulterior motive in hurting Chan or seeking relief against him in commencing those legal proceedings.

58. The defendants rely on the campaign and these actions as evidencethat the plaintiff’s claim herein is an abuse of legal process by using this actionto pressurize the defendants into a compromise over the proposal of setting up an incorporated management committee for the Primary School which, from the alumni’s perspective, is more transparent and effective. Mr Chong quotes the following dicta of Bridge LJ in Goldsmith v Sperrings Ltd [35] in support of his argument:

“ In my judgment, one can certainly go so far as to say that when a litigant sues to redress a grievance no object which he may seek to obtain can be condemned as a collateral advantage if it is reasonably related to the provision of some form of redress for that grievance. On the other hand, if it can be shown that a litigant is pursuing an ulterior purpose unrelated to the subject matter of the litigation and that, but for his ulterior purpose, he would not have commenced proceedings at all, that is an abuse of process.”

59. Motive, particularly ulterior motive, is very often a matter of inference from proven facts. I have no disagreement with the dictum of Bridge LJ. The question is whether it can be shown that the plaintiff herein is pursuing an ulterior purpose unrelated to the subject matter of these proceedings and, but for his ulterior purpose, he would not have commenced these proceedings at all.

60. I have no doubt that the campaign was directed at Chan’s false declaration of his doctorate qualification. The actions involved may not be commendable as a means of resolution of dispute. They may be excessive and annoying from Chan’s or BCHK’s point of view. But as Mr Mok SC suggests, the plaintiff’s exercise of his right of freedom of expression is guaranteed by Article 27 of the Basic Law. There is nothing to suggest that the actions had gone beyond what was civilized and peaceful. If Chan or BCHK consider the actions excessive and infringement of their rights, they may seek legal redress against the plaintiff for defamation and/or malicious falsehood, if any of them has valid basis that the plaintiff’s complaints are falseand/or unjustified. Charity begins at home. So does integrity. The school, particularly the Primary School, is the place to nurture and foster it. I can feel the sense of grievance the plaintiff and other members of the alumni have against Chan who is the figure head and symbol of the Primary School whom the students and their parents look to as model of integrity, but who to their knowledge was guilty of dishonourable conduct in falsely claiming a doctorate qualification. I cannot draw as the only irresistible inference that the actions in the campaign were commenced for the purpose of forcing a compromise for setting up an incorporated management committee. In fact, I would think the contrary. Those actions would not stop even if a compromise along that line is reached without removal of Chan as supervisor.

61. As for the four legal actions, I think it more likely than not that they were instituted to vent the plaintiff’s anger at Chan for the same reason. They were commenced rather stupidly and probably without any or any proper legal advice. For the same reasons, I am unable to draw as the only irresistible inference that those actions were commenced for the purpose of forcing a compromise for setting up an incorporated management committee.

62. Even if the campaign and those four actions were carried out with the ulterior motive as alleged, it has little bearing to the question whether these proceedings are pursued with that same ulterior motive. Again, I cannot draw as the only irresistible inference that they are. The defendants have failed to show that the action is an abuse of the legal process.

63. No allegation has been made that the plaintiff’s allegations are scandalous. The plaintiff has presented a good prima facie case for declaratory relief, which is not bound to fail. His action cannot be described as frivolous and vexatious.

Conclusion

64. For the above reasons, I find that the plaintiff has made out a good primafacie case against the 1^st, 3^rd and 4^th defendants and that he is entitled to declaratory relief, but not as against the 2^nd defendant. Accordingly, I allow the appeal to the extent that the Re-Amended Statement of Claim be struck out and the action dismissed as against the 2^nd defendant with costs including the costs before the master. All the other orders of the master are upheld. I also make an order that the plaintiff shall have costs of the appeal against the 1^st defendant with certificate for two counsel; and the 2^nddefendant shall have costs of the appeal against the plaintiff.

	( Anthony To )
	Deputy High Court Judge

Mr Johnny Mok SC and Ms Teresa Wu, instructed by Lily Fenn & Partners, for the plaintiff

Mr K M Chong, instructed by P T Yeung & Tang, for the 1^st and 2^nd defendants

[1] In the heading of the Re-Amended Writ of Summons, the 1^st defendant is described as “President”, but in paragraph 2 of the Re-Amended Statement of Claim, he is described as “Chairman”. The facts set out in paragraphs 2 and 3 above is based on the Articles of Association of BCHK.

[2] Pei Zheng Middle School & The Baptist Convention of Hong Kong v China Pui Ching Educational Foundation Ltd & Others CACV 2/2007, 6 August 2007, para 3, citing para 3(a) of BCHK’s statement of claim therein

[3] At para 18/19/4

[4] [1982] HKC 382 (CA), 392

[5] CACV 96/2014, 3 July 2015

[6] At para 18/19/4

[7] [2012] 3 HKLRD 550, at paras 15 – 28 per Deputy High Court Judge M Chan (as she then was), applied in Xu Shengheng v Cheung Kwan HCA 291/2009, 22 July 2013, at paras 58 – 59 per L Chan J

[8] HCA 1086/2013, 28 January 2015 at paras 31 – 32, per Deputy High Court Judge Kent Yee

[9] [1987] 1 AC 189, at 212F–H

[10] [2014] 5 HKLRD 1 (CA)

[11] At para 15/6/1

[12] [1989] 2 WLR 1025 (HL), at 1074E–F

[13] CACV 79/1988, 25 October 1989

[14] [1915] 2 KB 536 at 562

[15] At paras 54 – 57

[16] [1996] Fam 1 at 18 – 19; [1995] 3 All ER 290 at 302 – 303

[17] [1982] AC 617 at 646

[18] [1996] Fam 1; [1995] 3 All ER 290

[19] [1921] 2 AC 438, at 448

[20] [1990] 2 AC 1, at 82

[21] [1979] Ch 344 at 352H-353A

[22] [1996] Fam 1

[23] At 18E–G

[24] [1990] 1 HKLR 497 at 511F–G, 514H–J, per Clough JA

[25] HCAL 47/2015, unreported, 30 November 2015

[26] [1999] 4 HKC 292, per Ribeiro J (as he then was), at 301F, citing Liverpool and District Hospital forDiseases of the Heart v Attorney General [1981] Ch 193, and Vernon’s Will Trusts [1972] Ch 300

[27] (1813) 35 ER 270

[28] [1993] AC 682 at 695H

[29] [1987] 1 AC 795 at 815

[30] HCA 2333/2016, unreported, 16 May 2017, at para 31

[31] HCA 2333/2016, unreported, 16 May 2017

[32] HCA 2335/2016, unreported, 18 August 2017

[33] HCA 2334/2016, unreported, 21 June 2017

[34] HCA 2336/2016, unreported, 21 June 2017

[35] [1977] 1 WLR 478 at 503F–G

KOO MING KOWN v. REV. MR. MOK KONG TING AND OTHERS

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