LAU MAN WAI JOSEPH AND OTHERS v. CHEUNG SUN LING SANNY, THE ADMINISTRATRIX OF THE ESTATE OF KWAN YAU HANG, DECEASED AND OTHERS

LAU MAN WAI JOSEPH AND OTHERS v. CHEUNG SUN LING SANNY, THE ADMINISTRATRIX OF THE ESTATE OF KWAN YAU HANG, DECEASED AND OTHERS

The court found as facts there were no proper elections of councillors from 1998–2010; the Board acted ultra vires in imposing a retrospective 70% attendance threshold without lawful basis or reliable records; the Board lacked jurisdiction under Art 9.2 to expel the 22 Plaintiffs on the relied grounds (Memorandum objects, religious oaths or unpleaded rules) and, further, the expulsions were made in breach of natural justice; accordingly the 70% Attendance Resolution and the Termination Resolution are invalid and the expulsions unlawful.

Citation
LAU MAN WAI JOSEPH AND OTHERS v. CHEUNG SUN LING SANNY, THE ADMINISTRATRIX OF THE ESTATE OF KWAN YAU HANG, DECEASED AND OTHERS
Parties
Plaintiffs: Plaintiffs (members of the Reformists Camp); Defendant (the Company): Hong Kong Kam Lan Koon Ltd (the Koon); 1st Defendant: Cheung Sun Ling Sanny (Administratrix of the Estate of Kwan Yau Hang); 2nd Defendant: Luk Yau Tong (otherwise known as Luk Ngai); 3rd Defendant: Tang Siu Bing; 4th Defendant: Chan Joy Sing; 5th Defendant: Chan Wing Cheung Stephen; Defendant (public Respondent): Secretary for Justice (represented by Department of Justice)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
2 September 2015
Case Number
HCMP2477/2011
Procedural Posture
HCMP 143/2011; HCMP 1013/2011; HCMP 2477/2011 / Trial on Preliminary Issues — Judgment on Preliminary Issues
Outcome
Judgment on preliminary issues for Plaintiffs; 70% Attendance Resolution ultra vires and void; Termination Resolution of 15 October 2011 invalid and expulsions unlawful; Plaintiffs entitled to costs nisi.
Legal Topics
Membership Expulsion, Board Composition and Election, Ultra Vires Acts, Interpretation of Constitutive Documents, Natural Justice in Disciplinary Procedures
Source Language
EN
Company Law Charity Law Administrative Law Civil Procedure Religious Institution Governance Membership Expulsion Board Composition and Election Ultra Vires Acts +2 more

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Parties

Plaintiffs (members of the Reformists Camp)

Plaintiffs

Hong Kong Kam Lan Koon Ltd (the Koon)

Defendant (the Company)

Cheung Sun Ling Sanny (Administratrix of the Estate of Kwan Yau Hang)

1st Defendant

Luk Yau Tong (otherwise known as Luk Ngai)

2nd Defendant

Tang Siu Bing

3rd Defendant

Chan Joy Sing

4th Defendant

Chan Wing Cheung Stephen

5th Defendant

Secretary for Justice (represented by Department of Justice)

Defendant (public Respondent)

Procedural Posture

HCMP 143/2011; HCMP 1013/2011; HCMP 2477/2011 / Trial on Preliminary Issues — Judgment on Preliminary Issues

Legal Issues

  1. 1 Whether proper elections of councillors were held since 1998 (Election Issue)
  2. 2 Whether councillors could lawfully interpret Article 7.1 to require 70% attendance to qualify for voting (70% Attendance Issue)
  3. 3 Whether the expulsion of 22 members was valid under Art 9.2 (Expulsion Issue)

Ratio Decidendi

The court found as facts there were no proper elections of councillors from 1998–2010; the Board acted ultra vires in imposing a retrospective 70% attendance threshold without lawful basis or reliable records; the Board lacked jurisdiction under Art 9.2 to expel the 22 Plaintiffs on the relied grounds (Memorandum objects, religious oaths or unpleaded rules) and, further, the expulsions were made in breach of natural justice; accordingly the 70% Attendance Resolution and the Termination Resolution are invalid and the expulsions unlawful.

Court Disposition

Judgment on preliminary issues for Plaintiffs; 70% Attendance Resolution ultra vires and void; Termination Resolution of 15 October 2011 invalid and expulsions unlawful; Plaintiffs entitled to costs nisi.

Orders

  • Parties to submit an agreed draft order within 21 days; if disagreement either party may apply for further hearing
  • Order nisi that costs of the trial on preliminary issues be paid by all Defendants except the estate of Mr Kwan, the Koon and the Secretary for Justice to the Plaintiffs; costs to be made absolute 21 days after delivery of judgment if not opposed