TO KIN WAH AND OTHERS v. TO KAM CHAU AND ANOTHER

TO KIN WAH AND OTHERS v. TO KAM CHAU AND ANOTHER

On the evidence the court found that the 13.05.01 and 12.08.01 meetings produced unanimous approval among those present, there was no sufficient proof of coercion, the local/customary requirement is consensus rather than absolute unanimity of all members, and the three Tso managers were validly appointed and duly registered under s15 NTO; Funds are devoted to temple maintenance (Primary Purpose) and any surplus for the benefit of present and future members (Secondary Purpose); consequently the plaintiffs' claims challenging the appointments and seeking court administration of the trusts were dismissed.

Citation
[2023] HKCFI 3238
Parties
1st Plaintiff: To Kin Wah; 2nd Plaintiff: To Mei Lun; 3rd Plaintiff: To Siu Lam; 1st Defendant: To Kam Chau; 2nd Defendant: To Kan Chi
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
18 December 2023
Case Number
HCA1603/2004
Procedural Posture
Civil Action (trusts/administration) / Judgment Following Trial
Outcome
Plaintiffs' claims dismissed
Legal Topics
Validity of Managers' Appointment, Unanimity/consensus in Clan Decision‑making, Application and Purposes of Temple Funds, Res Judicata and Abuse of Process, Ratification and Proxy Participation
Source Language
EN
Trusts Property Customary Law Administrative Law Civil Procedure Validity of Managers' Appointment Unanimity/consensus in Clan Decision‑making Application and Purposes of Temple Funds +2 more

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Parties

To Kin Wah

1st Plaintiff

To Mei Lun

2nd Plaintiff

To Siu Lam

3rd Plaintiff

To Kam Chau

1st Defendant

To Kan Chi

2nd Defendant

Procedural Posture

Civil Action (trusts/administration) / Judgment Following Trial

Legal Issues

  1. 1 Whether defendants were validly appointed as managers of the Tong under Chinese law and custom and s15 NTO
  2. 2 Whether unanimity of all members was required to pass resolutions or appoint managers
  3. 3 Whether meetings and consent were procured by threat, intimidation or violence

Ratio Decidendi

On the evidence the court found that the 13.05.01 and 12.08.01 meetings produced unanimous approval among those present, there was no sufficient proof of coercion, the local/customary requirement is consensus rather than absolute unanimity of all members, and the three Tso managers were validly appointed and duly registered under s15 NTO; Funds are devoted to temple maintenance (Primary Purpose) and any surplus for the benefit of present and future members (Secondary Purpose); consequently the plaintiffs' claims challenging the appointments and seeking court administration of the trusts were dismissed.

Court Disposition

Plaintiffs' claims dismissed

Orders

  • Plaintiffs' claims dismissed
  • Costs reserved: parties to agree costs or attend a short hearing (not more than 30 minutes) for directions