MA WAH YAN AND ANOTHER DHARMA REALM BUDDHIST ASSOCIATION, INC. AND OTHERS

MA WAH YAN AND ANOTHER DHARMA REALM BUDDHIST ASSOCIATION, INC. AND OTHERS

The amended summons seeking an order to charge or sell properties held for a public charity was dismissed because (1) section 20A HCO does not permit charging property not beneficially owned by the judgment debtor, (2) Order 45/50 remedies were the proper statutory route which plaintiffs had not exhausted, (3) Re Snowden principles do not justify compelling a charity to pay private judgment debts or imposing a charge/sale, and (4) there is no inherent jurisdiction to override the statutory scheme or to order a sale in the circumstances, especially given plaintiffs' conduct and lack of necessity and proportionality.

Citation
[2021] HKCFI 257
Parties
Plaintiffs: Ma Wah Yan and Wong Chi Leung (Administrators of the estate of Bai Yu Shu); 1st Defendant; Plaintiff (counterclaim): Dharma Realm Buddhist Association, Inc.; 2nd Defendant (unnamed Occupiers): All occupiers of Flat A9 on 5th Floor, Mirador Mansion, No.58 Nathan Road, Kowloon; 3rd Defendant (unnamed Occupiers): All occupiers of 11th Floor, No.31 Wong Nai Chung Road, Hong Kong; 4th Defendant (unnamed Occupiers): All occupiers of Lot No.25 in Demarcation District No.307, Lantau Island, New Territories; 5th Defendant (unnamed Occupiers): All occupiers of Section A of Mang Cheung Po Lot No.5, Mang Cheung Po, Lantau Island, New Territories; 6th Defendant: Yip Wan Tung; 7th Defendant: Koo Pak Chau; 8th Defendant: Lee Cham; 2nd Defendant (counterclaim): The Secretary for Justice
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
28 January 2021
Case Number
HCA1192/2007
Procedural Posture
Civil Enforcement of Judgment / Trusts and Charities Dispute / Decision on Enforcement (application Dismissed)
Outcome
Amended summons dismissed
Legal Topics
Charging Order, Order for Sale, Ex Gratia Payments From Charity Funds, Inherent Jurisdiction, Charitable Trusts, Mesne Profits, Execution and Garnishee Proceedings
Source Language
EN
Civil Procedure Trusts and Charities Law Equity Enforcement of Judgment Charging Order Order for Sale Ex Gratia Payments From Charity Funds Inherent Jurisdiction +3 more

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Parties

Ma Wah Yan and Wong Chi Leung (Administrators of the estate of Bai Yu Shu)

Plaintiffs

Dharma Realm Buddhist Association, Inc.

1st Defendant; Plaintiff (counterclaim)

All occupiers of Flat A9 on 5th Floor, Mirador Mansion, No.58 Nathan Road, Kowloon

2nd Defendant (unnamed Occupiers)

All occupiers of 11th Floor, No.31 Wong Nai Chung Road, Hong Kong

3rd Defendant (unnamed Occupiers)

All occupiers of Lot No.25 in Demarcation District No.307, Lantau Island, New Territories

4th Defendant (unnamed Occupiers)

All occupiers of Section A of Mang Cheung Po Lot No.5, Mang Cheung Po, Lantau Island, New Territories

5th Defendant (unnamed Occupiers)

Yip Wan Tung

6th Defendant

Koo Pak Chau

7th Defendant

Lee Cham

8th Defendant

The Secretary for Justice

2nd Defendant (counterclaim)

Procedural Posture

Civil Enforcement of Judgment / Trusts and Charities Dispute / Decision on Enforcement (application Dismissed)

Legal Issues

  1. 1 Whether a charging order or sale can be imposed on properties held for a public charity to satisfy judgment debt against defendant
  2. 2 Whether section 20A High Court Ordinance permits a charge when the debtor does not beneficially own the property
  3. 3 Whether the court can compel ex gratia payments by charity trustees under Re Snowden/Re Henderson to satisfy private judgment debts

Ratio Decidendi

The amended summons seeking an order to charge or sell properties held for a public charity was dismissed because (1) section 20A HCO does not permit charging property not beneficially owned by the judgment debtor, (2) Order 45/50 remedies were the proper statutory route which plaintiffs had not exhausted, (3) Re Snowden principles do not justify compelling a charity to pay private judgment debts or imposing a charge/sale, and (4) there is no inherent jurisdiction to override the statutory scheme or to order a sale in the circumstances, especially given plaintiffs' conduct and lack of necessity and proportionality.

Court Disposition

Amended summons dismissed

Orders

  • Amended summons dismissed
  • Costs of the 1st Defendant to follow the event and be borne by the Plaintiffs, to be taxed if not agreed