LAI CHIK KUN MICHAEL AND OTHERS v. THE BAPTIST CONVENTION OF HONG KONG AND ANOTHER

HCA 2741/2018

[2025] HKCFI 6483

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2741 OF 2018

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D E C I S I O N

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A.  INTRODUCTION

1.  These are 4 ex parte summonses of the 2^nd Plaintiff (“Mr Koo”) for leave to commence proceedings for committing 4 persons for contempt (“the Leave Summonses”):

(1)  Or Kwong Fai (“Mr Or”), senior partner of Or & Partners, solicitors for D1 (“BCHK”);

(2)  Wong Ling Tim (“Mr Wong”), supervisor of Pui Ching Primary School (“the School”);

(3)  Rev Chan Pui Fai (“Rev Chan”), First Vice President and Acting President of BCHK at the relevant time; and

(4)  Mr Abraham Chan SC (“Mr Chan SC”), counsel acting for BCHK at the Strike-Out Hearing on 9 November 2021.

2.  The alleged offending acts arose in the course of an application by the Plaintiffs for an amendment to pleadings and joinder of parties, and BCHK’s application to strike out the claim. Before the Strike-Out Hearing, BCHK sought and was granted leave to file an affirmation from Mr Or dated 4 November 2021 (“Or-Aff”). Mr Koo claims that the statement in the Or-Aff to the effect that a new building was usable in its entirety by the School, and the submission advanced accordingly by Mr Chan SC, turned out to be false.

3.  By 4 separate Notices of An Application for Leave to Make an Application for Committal, Mr Koo framed the “charges” as follows:

(1)  against Mr Or – “misleading the Court by making and filing [the Or-Aff], the contents of which were knowingly untrue”;

(2)  against Mr Chan SC – “misleading the Court with evidence which was knowingly untrue, such evidence being the Or-Aff";

(3)  against Mr Wong – “for giving instructions to [Mr Or], to mislead the Court by filing [the Or-Aff], the contents of which were knowingly untrue”.

(4)  against Rev Chan – “deceiving the Court by instructing [Mr Or] to make and file [the Or-Aff], the contents of which were knowingly untrue”.

Mr Leung, counsel for Mr Koo, confirms at this Strike-Out Hearing that the references to “knowingly untrue” are to the relevant respondent under each charge.

4.  The 4 Statements in Support of an Application for Leave to Make an Application for Committal (“Supporting Statements”) are substantially similar.

5.  On 10 September 2025, I directed that an oral hearing be held for the Leave Summonses. Having heard Mr Leung, counsel for Mr Koo, this is my ruling.

B.  BACKGROUND

6.  The Leave Summonses are offshoots of a long-running dispute between Mr Koo and BCHK, which was and is the manager and trustee of the School.

7.  The present action arose out of a claim by Mr Koo (and other Plaintiffs) against BCHK for misrepresenting to the Plaintiffs during a fundraising campaign between 2006 and 2011 that donated funds would be used to construct a new building for the School (“New Building”), to be used by students of the School. Mr Koo was induced by the misrepresentation to make various donations towards the construction of the New Building.

8.  Mr Koo claims that:

(1)  The New Building was subject to height restriction of 24 metres above ground level laid down in Regulation 7 of the Education Regulations (Cap. 279A) (“ER”), but under its proviso, the Permanent Secretary, with the advice of the Director of Fire Services, may relax the height restriction.

(2)  By the original building plans and a letter dated 6 March 2008, the School confirmed to the Education and Manpower Bureau (“EMB”) that G/F to 6/F of the New Building was to be a primary school whereas 7/F to 14/F was to be used for post-secondary education under the Hong Kong Baptist University Ordinance.

(3)  5/F, designed for use by the School, is 24.94 metres high. Pursuant to the proviso in ER reg. 7, approval was given by the EMB in a letter dated 8 April 2008 to relax the height restriction.

(4)  5/F to 15/F of the New Building were not intended for the School.

(5)  In 2014, Mr Koo discovered that the majority of the New Building was not for the benefit of the students of the School, but for BCHK’s Adult Education Centre. Mr Koo felt he had been deceived into making donations towards the construction of the New Building. He therefore commenced the action for misrepresentation and sought repayment of the donation. Judgment was entered against BCHK in HCA 1339/2014.

(6)  In 2016, the School informed EB that the School had departed from the use stated in the building plans and occupation permit and that 13/F and 14/F of the New Building were for use of the teaching and non-teaching staff as meeting rooms, rest rooms and staff rooms.

(7)  In the same year, EB stated that 13/F and 14/F were situated at over 24 metres above ground and that the Director of Fire Services advised that no student should be allowed to access these floors. The EB also stated that approval was granted on the condition that a commitment was made in the application for registration that any floors at a height of more than 24 metres above ground level were not to be used for teaching purposes by the School and that students of the School were not allowed to access any floors at a height of more than 30 metres above ground level (“Commitment”).

(8)  In 2019, the School informed EB that 8/F to 15/F have not been used by the School since 18 March 2014, when the New Building was issued with an Occupation Permit.

(9)  On 19 October 2020, the PSE issued 2 Certificates of Registration, permitting the G/F to 14/F to be used for the purposes of the School.

9.  By a summons dated 22 July 2021, BCHK applied to strike out Mr Koo’s claim (“Strike Out Application”). The substantive hearing for that summons was fixed for 9 November 2021, before Wilson Chan J (“the Strike-Out Hearing”).

10.  BCHK instructed Mr Chan SC, junior counsel and Mr Or for the Strike-Out Hearing.

11.  On 4 November 2021, BCHK lodged and served its skeleton submissions prepared by Mr Chan SC and his junior (“1^st Skeleton”). On the same day, Mr Or filed and served the Or-Aff.

12.  The relevant extracts of Or-Aff are as follows:

“1. … I am duly authorized by BCHK to make this affirmation (sic) on its behalf.

…

4. In this affidavit, I only seek to produce one piece of objective documentary evidence attesting to the current status of the [New Building]. There is now produced and shown to me exhibit marked “OKF-1”, a copy of two Certificates of Registration of a School issued by the Permanent Secretary for Education under the Education Ordinance (Cap 279) on 19 October 2020 (“the Certificates”).

5. The Certificates show that… [the School] may be operated on all floors of the [New Building].

7. In preparing for the substantive [Strike-Out Hearing], the Joinder Application and the Amendment Application, BCHK sought further legal advice from Senior Counsel. I am advised and verily believe that the Certificate will assist the Court in considering the aforesaid applications. There is no prejudice to the Plaintiffs. The Certificate is objective evidence which speaks for itself. Granting leave to adduce the Certificate does not create any risk that the [Strike-Out Hearing] might be derailed, but instead assists the Court to consider the matter properly in context. The Certificate would show that the relief sought by the Plaintiffs relating to the Charitable Trust Amendments are without practical utility.”

13.  On 5 November 2021, Mr Chan SC lodged and served another set of skeleton submissions (“2^nd Skel”), in which it was stated:

“7. (1) The Certificates have an obvious and potentially decisive bearing on the result of the case. They clearly show that the School could be operated on all floors of the [New Building], underscoring the reality that Ps' claims are of no practical utility.

(2) The Certificates are objective documentary materials which are strongly credible, if not incontrovertible. Ps will suffer no prejudice upon admission of the Certificates - in fact Ps no longer insist that the 7th - 15th floors of the [New Building] (the alleged "unused floors") remained vacant or could not be used by the School’s students.

(3) On the other hand, both [BCHK’s] interests and the Court's role would be prejudiced if the application were refused. In particular, the Court would be left blinkered as to the reality of the current usage of the [New Building] – a clearly relevant contextual matter against which to understand and assess Ps’ claims (underline original).

…

49. … the undisputed fact was that Pui Ching Academy did not move into the [New Building] and the School is now using the [New Building]. This is incontrovertibly shown by the Certificates, which expressly state that the School may be operated on all floors of the [New Building].

50. In such circumstances, it would be neither just nor equitable to ask the Court to order [CBHK] to compensate the School for the construction of the [New Building].

51.  Similarly, there would be no practical utility in the declaratory relief sought, as they were all premised upon the false basis that the School cannot make use of the alleged Unused Floor.”

14.  On 8 and 10 November 2021, Mr Chan SC lodged and served his 3^rd Skel and 4^th Skel respectively. These documents were not referred to nor exhibited to Koo’s 7^th affirmation (“Koo-7^th”). For completeness, the relevant part of the 3^rd Skel that Mr Koo seeks to rely on is as follows:

“10. … There is no real dispute as to the existence or extent of “legal rights” between Ps and [D1]. For §20(5), it is factually wrong to say that the unused floors cannot be used by the School’s students. This is incontrovertibly shown by the Certificates of Registration …; which in turn goes very far towards explaining [P2’s] desperation to keep this evidence out.” (underline original)

15.  At the Strike-Out Hearing, the Plaintiffs’ counsel objected to the inclusion of Or-Aff as evidence. According to the transcripts of the Strike-Out Hearing, Mr Chan SC informed Wilson Chan J that the Certificates showed, from a regulatory standpoint, that the School could be operated on all floors. Whilst the Plaintiff’s counsel sought to play down the effect of the Certificates, Mr Chan SC submits that it defied common sense to suggest that the Secretary of Education would issue certificates for the use of premises where those premises were somehow inherently unlawful in terms of Education Regulations. When the Court were to balance the relative justice between the parties at that stage, it was quite plain that it served the court’s interest in securing a just resolution of the dispute to allow the 2 pages in.

16.  Wilson Chan J dismissed BCHK’s summons to adduce Or-Aff. He gave an ex tempore judgment, holding that:

“First, there has been a serious and inordinate delay on the part of the defendant in providing this new evidence. It is well established that late application for leave to adduce evidence may be refused on the ground of lateness alone.

Second, the certificates do not even form [part] of the defendant's discovery in the proceedings nor its pleaded case. In other words, the certificates have been deliberately concealed from the Plaintiffs or the defendant has made a conscious decision not to provide the same to the Plaintiffs. No explanation has been given for the last-minute change of mind on the part of the defendant.

And finally, the admission of the new evidence will cause a prejudice to the Plaintiffs which cannot be compensated by costs. The Plaintiffs [have] simply been deprived of a proper opportunity to consider or to respond to the new evidence. Thank you.”

17.  Inquiries of Mr Koo subsequent to the Strike-Out Hearing led to discovery of the Commitment. Accordingly, Mr Koo believed that Mr Wong, Rev Chan, Mr Chan SC and Mr Or had misled the Court by adducing Or-Aff and the Certificates at the last minute and concealed the fact that a substantial part of 8/F to 15/F was unused by or useless to the School. The Commitment was also concealed from the Court.

18.  Despite invitation by Mr Koo’s former solicitors, the Department of Justice (“DOJ”) declined to initiate criminal and/or contempt proceedings against BCHK and its officers.  DOJ took the view that it was more appropriate for the Plaintiffs’ complaints to be dealt with by the Court in the present proceedings.

19.  On 2 September 2025, Mr Koo took out the Leave Summonses and filed Koo-7^th.

C.  POST HEARING DEVELOPMENTS

20.  Two days after the present hearing of the Leave Summonses, Mr Koo’s legal representatives submitted (i) an ex parte summons to amend the Leave Summonses, (ii) Mr Koo’s 8^th affirmation filed on 14 November 2025 (“Koo-8^th”), and (iii) supplemental submissions and authorities. Items (ii) and (iii) will be collectively referred to as “supplementary materials”.

21.  The summons to amend the Leave Summonses was to correct a technical error (pointed out by the Court) on the Leave Summonses and Supporting Statement, by stating that Mr Koo’s solicitors act for Mr Koo instead of all the 6 Plaintiffs. I grant leave to amend.

22.  It is most undesirable and improper for a party to seek to adduce further materials and submissions after a hearing and to have a second bite at the cherry when they feel that the judge may not be with them on certain points. Having considered the supplemental materials on a de bene esse basis, I decided to grant leave for filing the supplementary materials as they contain important admissions that the Leave Summonses were and are not properly grounded.

23.  In Koo-8^th

(1)  Mr Koo admitted that Koo-7^th did not make a clear averment that the intended Respondents knew that the Certificates were granted upon the Commitment made by the School as a condition. When he made Koo-7^th, he was given to understand that the knowledge was to be inferred from circumstantial evidence. He was “unable to provide direct evidence to prove that the intended Respondents had the Knowledge”.

(2)  “In order to cure the irregularity”, Mr Koo then asserted in the alternative that the intended Respondents were reckless as to whether the Certificates were granted upon the commitment made by the School as a condition. Alternatively, each intended Respondent had no honest belief that the Certificates were granted without a condition on the use and accessibility by the students of the School because “they all knew” of the law on height restriction.

D.  LEGAL PRINCIPLES

24.  For leave to commence contempt proceedings to be granted under Order 52, r2, there needs only be an arguable or prima facie case of contempt. At the leave stage, the court should be concerned only with whether contempt was arguable, rather than engaging with the merits of the respondent’s defence or the sufficiency or admissibility of evidence to prove such defence: PF Group Holdings Ltd v Lee Chun Pong Bruce [2025] 4 HKLRD 115, §§10, 14 (Barma JA).

25.  There is a distinction between criminal and civil contempt. As held by Barma JA in Re Chu Kong[2021] HKCA 1580 at §38:

“In my view, it is necessary to distinguish between two aspects of contempt proceedings. The first is whether the contempt alleged is a civil or criminal contempt. This is determined by the nature of the allegedly contumelious act. Where the act consists of the failure to comply with a court order in civil proceedings, it is a civil contempt. However, where the act consists of the doing of something which interferes with the course of justice (for example by giving false evidence under oath, or making false statements in affidavits or affirmations, or interfering with officers of the court in the execution of their duties), it is a criminal contempt. The second aspect relates to the procedural nature of the proceedings by which it is sought to bring the contemnor before the court. In this respect, the characterisation of a contempt as civil or criminal in nature is not determinative of the procedural nature of the contempt proceedings – the procedural nature derives from the nature of the underlying proceedings in which the contempt is alleged to have taken place. While it is likely that all proceedings for civil contempt will of necessity be civil proceedings as a matter of procedure, it will not necessarily follow that proceedings for criminal contempt will be criminal proceedings, procedurally speaking. Where the contempt takes place in the course of civil proceedings, the contempt proceedings themselves are, procedurally, to be regarded also as civil proceedings. Where it takes place in the course of criminal proceedings, the contempt proceedings that result with procedurally be characterised as criminal proceedings.”

26.  The present Leave Summonses concern criminal contempt in a civil proceeding.

27.  For both civil and criminal contempt, the applicant must prove to a standard of beyond reasonable doubt, both the act claimed to constitute the contempt and the alleged contemnor’s requisite state of mind: Hong Kong Civil Procedure 2025, Vol 1, §52/1/17.

28.  It is well established that for criminal contempt concerning making of false statements, the plaintiff must prove beyond reasonable doubt that (i) the statement in question was false; (ii) the statement would have likely interfered with the course of justice in a material respect; (iii) at the time of making the statement, the maker (the defendant) had no honest belief in the truth of it. Any genuine doubt is to be resolved in the defendant’s favour. No specific intent to interfere with the administration of justice is necessary; it suffices for there to be an inherent likelihood so to interfere: Walton v Kirk [2009] EWHC 703 (QB), §§8-14 (Coulson J); Secretary for Justice v The Oriental Press Group Ltd & Ors [1998] 2 HKLRD 123, 153J-156C (Chan CJHC and Keith J); Secretary for Justice v Ng Wai Bing & Ors [2011] 5 HKLRD 620, §§38-57, Wright J; Hong Kong Civil Procedure 2025 §52/1/13.

29.  Mr. Leung’s supplemental submission has referred to the principles of proving knowledge in criminal cases: Westminster City Council v Croyalgrange Ltd (1986) 1 WLR 674 and Flintshire CC v Reynolds [2006] EWHC 95 (QB). I do not think these authorities assist Mr Koo’s case, given the vastly different nature, offences, and circumstances of those authorities, none of which were concerned with criminal contempt of Court.

30.  Croyalgrange was concerned with identifying a defendant’s knowledge and the proper inference to be drawn based on his choice of not giving evidence at the trial. It is well-established that knowledge can be inferred from circumstantial evidence.

31.  However, the Leave Summonses are ex parte applications where the intended Respondents are not called upon to give evidence on their lack of knowledge. The Court’s duty, now, is to assess whether Mr Koo’s evidence has established a prima facie case of the intended Respondents’ knowledge. There is no basis for Mr Koo to rely on the intended Respondents’ purported “silence” in these ex parte applications to draw an inference of their knowledge of the relevant matter.

32.  Insofar as Mr. Leung sought to rely on Flintshire for the proposition that shutting one’s eyes to an obvious means of knowledge amounts to actual knowledge, the law is as follows. A lawyer is normally entitled to proceed on the basis of his client’s instructions being correct. However, blind-eye knowledge, involving a deliberate decision of the solicitors not to inquire into matters which are obvious and specific, approximates to knowledge for the purpose of conspiracy. The principles have been set out in De Krassel v Chu Vincent [2010] 2 HKLRD 937 , Sakhrani J:

(1)  If a defendant believes that he has a lawful right to do what he is doing, he should not be liable for conspiracy to injure by unlawful means (§42).

(2)  The fraud or dishonesty is not sufficiently particularized if the facts pleaded are consistent with innocence or negligence (§44).

(3)  An allegation of dishonesty must be established with cogent and compelling evidence. The standard of proof is on balance of probabilities. The more serious the allegation, the stronger and more compelling the evidence is required (§§45-48).

(4)  A lawyer acting on the basis of their client’s instructions is normally entitled to proceed on the basis of his client’s instructions being correct (§51).

(5)  For there to be blind-eye knowledge, the suspicion must be firmly grounded and targeted on specific facts and not mere suspicion which may be no more than a vague feeling of unease (§§55-58).

33.  Although this authority is on conspiracy, the principles on blind eye knowledge are equally applicable to the present case.

34.  Dishonesty is tested by the ordinary standards of reasonable and honest people (objective test) and whether the defendant himself realized that by those standards that his conduct was dishonest (subjective): Twinsectra Ltd v Yardley [2002] 2 WLR 802, §§41-42; Royal Brunei Airlines v Tan [1995] 2 AC 378 , §27.

35.  As shall be demonstrated, Mr Koo is unable to show a prima facie case of blind-eye knowledge.

36.  I will split the respondents into 2 groups.

E.  GROUP 1 – MR WONG AND REV CHAN

37.  Mr. Leung submits that Mr Wong and Rev Chan were guilty of contempt due to:

(1)  The late production of the Certificates at the eleventh hour before the Strike-Out Hearing without explanation and without disclosing the Commitment.

(2)  Mr Wong and Rev Chan being the persons responsible for BCHK who had given instructions to Mr Or to file the Or-Aff and had acted on Mr Chan SC’s advice to produce the Certificates.

38.  At this hearing, Mr. Leung orally confirmed to the Court that, on Mr Koo’s case, Mr Wong and Rev Chan’s knowledge of the Certificates and the Commitment was derived from their respective positions as responsible persons of BCHK. It was stated in the supplemental materials that Mr Wong and Rev Chan “knew that the law prohibits students of the School to access the floors of the New Building exceeding 24 metres above ground level” and that they “must know about the Commitment”. No further particulars of knowledge were provided.

39.  Having read and heard Mr. Leung’s submissions, the case of contempt against Wong and Rev Chan is far from being made out, even on a prima facie basis.

40.  I assume, for the purpose of these Leave Summonses, that Wong and Rev Chan were the ones giving instructions to Mr Or to prepare Or-aff and gave the Certificates to Mr Or. However, the Commitment is not stated on the face of the Certificates, and there is no evidence showing that Wong and Rev Chan must have been aware of the Commitment, or had knowledge of any falsity.

41.  Insofar as late production of a document is concerned, it may reflect poor litigation conduct of a party, but it would not necessarily mean that the document was false or the document producer knew or did not hold any honest belief in the truth of that document.

42.  It was understandable that Wong and Rev Chan had instructed Or to put forward the Certificates upon senior counsel’s advice that they should be produced. There is nothing to show that Wong and Rev Chan were wrong in acting on Mr Chan SC’s advice. The Certificates were, on their face, relevant to the determination of the Strike-Out Application, as they could potentially spoke to the usage of the New Building. Whether the Certificates were determinative or conclusive to the issue of the usage of certain floors of the New Building was a question of interpretation of the Certificates in light of other documentary evidence and legislation. The fact that Wilson Chan J eventually ruled out the Certificates did not undermine the propriety of Mr Wong and Rev Chan’s conduct.

43.  Worse still, Koo-8^th was an admission that the original case on contempt based on knowledge could not stand. Koo-8^th does not explain why it was said that Mr Wong and Rev Chan were “reckless” or had no honest belief.

44.  The 2 evidence put forth, taken at their highest, are insufficient to found an arguable case of contempt against Mr Wong and Rev Chan.

F.  GROUP 2 – MR CHAN SC AND MR OR

45.  Mr. Leung submits that:

(1)  In advising BCHK to produce the Certificates and in making the Or-aff, Mr Or and Chan SC must have known that there was a Commitment attached to the Certificates such that “the students were not allowed to access to floors above 6/F, and that a vast majority of the space on 8/F and above was of no use or useless to the School”.

(2)  While there was no misrepresentation made by Mr Or and Chan SC, it was obvious that the Commitment “would render the Certificates irrelevant to the striking out summons”.

(3)  The production of the Certificates was “aimed at misleading the Court into believing that the entirety of the New Building was for the benefit of the School”.

(4)  Overall, Mr Chan SC and Mr Or abused their positions as legal representatives to gain an advantage for their client.

46.  Relying on the excerpts of Mr Chan SC’s 2^nd Skel, 3^rd Skel and oral submissions at the Strike-Out Hearing cited above, Mr Leung submits  that Chan SC had intended to mislead the Court into believing that the “Certificates were conclusive evidence and that the School could be operated on all floors of the New Building, and the unused floors could be used by the School’s students, such that [Koo’s] claim should be struck out due to lack of practical utility”.

47.  With respect, there is no evidential foundation for me to infer that Mr Chan SC and Mr Or must have known of the existence of a Commitment, or concealed its existence, or knew of the falsity of the statements that they had made. Mr Chan SC’s submission was tenable in the light of the Certificates. Without knowledge of the Commitment, it could not be said that he or Mr Or had the intention to mislead the Court.

48.  It has to be remembered that, day in day out, solicitors act on client’s instructions to adduce evidence by way of affidavits. A solicitor may not have first-hand evidence as to the source or truthfulness of a document and relies on client’s instructions. It is impossible even to infer a solicitor having knowledge of falsity of a document simply by his producing the document through an affidavit.

49.  Giving advice to produce a document is not equivalent to giving advice to conceal it until the last minute before the Strike-Out Hearing. Nor was that advice tantamount to concealing the Commitment. .

50.  The circumstances of production and reliance on the Certificates were equally consistent with innocence – that Mr Chan SC and Mr Or were not aware of the existence of the Commitments, which might have changed the flavour of the Certificates and destroyed the Strike-Out Application. Innocence cannot found contempt.

51.  Further, it was in the supplemental submission that Mr Leung raised the issue of blind-eye knowledge as follows:

(1)  Any person in Mr Chan SC’s position “would seek to find out why the PSE would grant the Certificates notwithstanding Regulation 7… and whether there are conditions on accessibility by the school/students attached to them…” and that Mr Chan SC was shutting his eyes to “an obvious means of knowledge” of the Commitment; and

(2)  The above would have equally applied to Mr Or who was the handling solicitor as he “knew what the core dispute in this case is”.

52.  This new argument of shutting their eyes to an “obvious means of knowledge” (whatever this term means) is not supported by Koo-7^th or 8^th or the Supporting Statements. It is not open to Mr Leung to run it.

53.  Further, Mr Chan SC and Mr Or were entitled to proceed on the basis of Mr Wong and Rev Chan’s instructions being correct.

54.  Even taking Mr Leung’s submission at its highest, it would at worst only tend to show that the lawyers were negligent in not advising on making further enquires relating to the Certificates. I make clear that I refrain even from making a finding of negligence on the inadequate evidence. Suffice to say that negligence is not enough to found a case of contempt.

55.  The act of adducing the supplemental materials was clearly retrospective engineering in an attempt to salvage a hopeless case of alleging knowledge of falsity of the Intended Respondents. The supplemental materials are equally deficient in particulars in supporting of a case of contempt.

G.  CONCLUSION

56.  Mr Koo has failed to establish a prima facie or arguable case of contempt against any of the 4  intended Respondents due to lack of evidence on the requisite state of mind. Accordingly, I grant leave to file Koo-8th but dismiss the Leave Summonses.

Mr Kelvin Leung, instructed by How & Co., for the 2^nd Plaintiff

HCA 2741/2018

[2025] HKCFI 647

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2741 OF 2018

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D E C I S I O N

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BACKGROUND

1.  This is the hearing of the Plaintiffs’ Summons filed on 19 December 2024 for an order that the 2^nd Defendant (“SJ”) do attend and participate in the trial of the action scheduled to be held from 5 October 2026 with 9 days reserved. This is opposed by SJ. The 1^st Defendant (“BCHK”) is neutral.

2.  The Plaintiffs are all alumni of Pui Ching Primary School (“School”) and the Pui Ching Middle School (“Middle School”) (collectively, “Pui Ching Schools”).

3.  BCHK is a company limited by guarantee and a charitable institution. It serves as the sponsoring body of and exercises overarching management over the School. It is also the operator of a tertiary education institute formerly known as Pui Ching Academy, but subsequently renamed Academy of the Baptist Convention of Hong Kong.

4.  SJ was joined as a party in his capacity as parens patriae pursuant to the order of Wilson Chan J dated 11 March 2022.

5.  The Plaintiffs’ claims are for recovery of donations made by them and various sums, costs and expenses incurred by the School which should properly be borne by BCHK. The Plaintiffs allege that BCHK holds the funds in the School’s accounts on charitable trust; that BCHK had breached its duties as trustee by misapplying the School’s funds; and that BCHK is liable to pay equitable compensation for breach of trust.

6.  The issues disclosed on the pleadings, relevant to the present Summons, are:

(1)  Whether there existed any charitable trust; and

(2)  Whether BCHK breached their duties as trustee.

7.  The Re-Re-Re-Amended Statement of Claim does not claim any relief against SJ. SJ’s Defence filed on 21 June 2022 largely does not admit the facts pleaded by the Plaintiffs as SJ does not have personal knowledge of those facts.

8.  SJ all along has taken a neutral stance. He sought to be excused from the trial by 2 letters dated 15 November 2024 and 4 December 2024 respectively (“the 2 Letters”).

9.  The Plaintiffs find SJ’s position “somewhat surprising”, hence they took out this Summons.

LEGAL PRINCIPLES ON SJ’s ROLE IN CHARITY PROCEEDINGS

10.  SJ acts as the protector of all charities. Where the trustees of a charity might bona fide but wrongly exercise the powers given to them, SJ would be entitled to intervene if he thought fit; but it would be purely a matter in his discretion alone to determine whether he would take any proceeding or any step in a proceeding or not: In re Carnarvon Harbour Acts, 1793 to 1903, Thomas v Attorney-General [1937] Ch 72 at pp.77-78, Farwell J.

11.  It may be sufficient if SJ agrees to be joined as a neutral defendant rather than in substitution for the party making the argument for the charitable trust: Tudor on Charities, 11^th ed, 2023, §16-053.

12.  Examples in which SJ’s participation at the trial is suitable are where maladministration has allegedly occurred, the trustees are in dispute, a question as to the charitable status of a gift or trust has been raised, or a scheme is proposed: 釋照月 v SJ and others[2022] HKCFI 2293, §22, B Chu J.

13.  Although his power (and on appropriate occasions the duty) to intervene is beyond question, there may often be occasions when (on grounds of expense to public funds, or uncertainty as to the outcome or otherwise), SJ may perfectly properly decide not to intervene: Scott and others v National Trust for Places of Historic Interest or Natural Beauty and another [1998] 2 All ER 705, p.714g-j, Robert Walker J.

14.  There must be an element of proportionality, as between the perceived problem and the cost of SJ attempting to resolve it: Tudor on Charities, 11^th ed, 2023, §13-017.

15.  There seems to be no hard and fast rule on when SJ may be excused from attendance at a hearing. Despite its age, this principle continues to hold good: that the Court must, in the best exercise of its discretion and judgment, act in a manner best calculated to promote justice: Ware v Cumberlege (1855) 20 Beav. 503, pp.511, Sir John Romilly, MR.

ANALYSES

16.  It can be seen from the written submission of Mr Lok, counsel for the Plaintiffs, that he relies much on the stance of SJ before Wilson Chan J, to support this Summons. It is said that SJ envisaged then that he would participate and render assistance in these proceedings.

17.  However, I do not find sufficient bases to order SJ to attend and participate in the trial for the following reasons given by SJ.

18.  Firstly, there is no dispute that no relief or remedy is claimed against SJ. This is different from the situation in 釋照月 where relief was sought against SJ to temporarily control the Tong and to have better administration of the trust (§8 of the Decision).

19.  If the Plaintiffs are successful after trial, there will be declarations and a money judgment against BCHK. That does not require SJ to supervise its execution. Any involvement of SJ will, at best, be after judgment, if the Court declares that there is a charitable trust, when SJ may have to ensure that the charitable trust is properly administered.

20.  Secondly, like any party’s attendance, SJ’s role is to assist the Court on the law and the facts. However, the Plaintiffs and BCHK, are legally represented. On questions of law, Mr Lok is simply unable to show what point SJ may be able to advance that the Plaintiffs and BCHK would not be able to. On questions of facts, indisputably SJ has no personal knowledge of the facts to enable it to eg cross-examine the witnesses. The presence of SJ will only duplicate the efforts of other counsel.

21.  This is very different from the situation in Li Kim Sang Victor v Chen Chi Hsia [2016] 1 HKLRD 1118, §18, where one party was a litigant in person. There, SJ produced an opening submission on the legal principles applicable to charitable interests to assist the Court (at §18). Even in that scenario, where the issue was one of existence of a charitable trust over land, SJ only attended on a watching brief.

22.  Mr Lok points out that, in addition to the question as to whether a charitable trust exists, there are serious allegations as to misapplication of trust property. It was SJ’s own submission before Wilson Chan J that “the gravity of the allegations made under the Plaintiffs’ Charitable Trust Claim warrants [SJ’s] participation in these proceedings”. Participating at the trial will at least give SJ an opportunity to hear the evidence in relation to the internal management of the trust and to grasp a full and wider picture of any problems, no matter what the outcome of the Court’s finding of each of the issue will be: 釋照月, §51.

23.  I am unable to see how these can advance the Plaintiffs’ case. The grave allegations of maladministration and mishandling of trust money, if established, will end up with a money judgment. The reliefs sought by the Plaintiffs do not anticipate SJ participating in eg the better administration of the trust in this case after hearing the grave allegations.

24.  Thirdly, SJ’s involvement and participation in the trial will unnecessarily incur costs on public funds and/or the trust funds.

25.  As Mr Leu, SGC, points out, SJ does not just serve one single charitable organization or one piece of litigation but many, and with different priorities. SJ needs to allocate resources to handle matters arising from all charitable institutions in Hong Kong from time to time which require his input and, sometimes, his consent. In reality there are human and financial restraints of DOJ when it comes to protecting numerous large and small charities and their litigation.

26.  In this case, there is no certainty of outcome as to whether a charitable trust would be established. Just on documents alone, there are 311 items. Preparation for trial would consume time and limited public resources. Even if SJ may be able to recover costs from the trust fund, that would consume part of the trust funds to the detriment of the trust.

27.  Mr Lok submits that the trial judge retains a wide discretion as to costs. What SJ refers to in the preceding paragraph indicates that SJ/DOJ may not even read the papers.

28.  In my view, despite the judge’s discretion on costs, no party, including SJ, should incur costs unnecessarily. In the case of SJ, it is not only a question of public money to be incurred in the first place, but also manpower. I agree with Mr Leu that the role of SJ is not only a neutral guardian of charitable trusts but also one who uses and should use limited human and financial resources prudently.

29.  Further, with respect to Mr Lok, it is not the function of the Court to supervise a party to ensure that he/she will read the file papers. Even if the Court were to compel SJ’s attendance at the trial, Mr Lok has not suggested how this could ensure that SJ/DOJ would read the papers.

30.  Fourthly, based on the principle of proportionality, SJ believes that the limited assistance that he can render to the trial judge would not be proportional to the time, costs and resources to be incurred. I agree.

31.  The current stance of SJ is not inconsistent with his position before Wilson Chan J. SJ has expressly reserved his “right to take part in these proceedings to such extent and in such manner (including taking a more active role) as may be required by her duty as parens patriae.” His current request to be excused from attending the trial is made after considering the 4 reasons analyzed above. It is an exercise of discretion made on proper and rational bases and should not be interfered with.

CONCLUSION

32.  In view of the above analyses and the 2 Letters before Summons, excusing SJ’s attendance at the trial best promotes justice. The Summons is thus dismissed, with costs to be borne by the Plaintiffs.

33.  On a nisi basis,

(1)  costs to SJ are summarily assessed at $57,441;

(2)  costs to BCHK are summarily assessed at $20,300.

34.  I thank counsel for their assistance.

Mr Michael Lok, instructed by Sit, Fung, Kwong & Shum, for the Plaintiffs

Ms V. Wong of Or & Partners for the 1^st Defendant

Mr Brian Leu, Senior Government Counsel, of Department of Justice for the Secretary for Justice