Professional Documents
Culture Documents
CACV 230/2014
COURT OF APPEAL
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BETWEEN
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Plaintiff
Defendant
JUDGMENT
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There are 26,000 niches for storage of ashes from the cremation of
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deceased believers and the evidence shows that the average cost for the
licence granted by the temple to use the niches was $80,000 per niche. It
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was accepted at the court below (and also before us) that the licensing of
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concern whether such use of the Land (a) constitutes a breach of the lease
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conditions under which the Land was granted; and/or (b) constitutes a
breach of the planning requirements in the relevant Outline Zoning Plan
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[OZP].
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2.
At the court below, Anthony Chan J held that such use was
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Agreement of that date provided that the Land was to be granted under
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The Judge held that given the similarity of the terms his
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his judgment. Thus, he also held that there was a breach of Clause 7(5).
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6.
OZPs came into effect, the Land was governed by Kwai Chung OZP No
S/KC/ 21 [OZP 21] which was gazetted on 9 July 2004. That was the
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plan in force when the temple was established in December 2007. It has
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the operation of the columbarium can come within the permitted uses as
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The Judge
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and/or Clause 7(5). He ordered the plaintiff to remove from the Land all
advertisement of the sale of niches for the storage of cremated ashes.
In this appeal, Mr Chan SC (appearing together with Mr
Hon) submitted on behalf of the plaintiff that the Judge erred in his
conclusion on GC 15 as well as his conclusion on the OZP restriction. In
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the Notice of Appeal, the plaintiff asked this court to set aside the
judgment below and to grant declarations to the effect that GC 15 does
not prohibit storage of ashes resulting from the cremation of human
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remains, that the temple is a RI and the use of the Land (as it is) was
permitted under OZP 21, and that the plaintiff is entitled, without the
consent or approval of the Lands Department or Town Planning Board or
any other government or statutory bodies, to store ashes resulting from
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human remains, including any cremated ashes and to cease the sale or
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needed to succeed on both the GC 15 limb and the OZP limb of the
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invited this court also to consider revising the wording of the order of the
Judge even if he were only successful on the GC 15 limb. He suggested
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argued by the plaintiff below. Mr Chan did not put forward any proposed
revision for our consideration. If the order is formulated in a vague and
general manner, it would not be of much assistance to the parties and may
even invite further rounds of litigation. As the point was not raised in the
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course in this appeal. In any event, as it transpires, for the reasons given
The construction of GC 15
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for Justice (2005) 8 HKCFAR 95; Fully Profit (Asia) Ltd v Secretary for
Justice (2013) 16 HKCFAR 351), human remains in GC15 does not
include ashes. In essence, counsel submitted that in view of the historical
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genesis of this clause and the mischief the clause was aiming at, human
remains in GC 15 only refers to human bodies or skeletons.
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Properties Ltd (1999) 2 HKCFAR 279 at p.296E, apart from the words
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used, in the construction exercise one must have regard to the agreement
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(3)
The law excludes from the admissible background the
previous negotiations of the parties and their declarations of
subjective intent. They are admissible only in an action for
rectification. The law makes this distinction for reasons of
practical policy and, in this respect only, legal interpretation
differs from the way we would interpret utterances in ordinary
life. The boundaries of this exception are in some respects
unclear. But this is not the occasion on which to explore them.
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15.
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determining the relevant context. Though New Grant 3306 was issued on
5 August 1953, Mr Chan submitted that the relevant context should be
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the Judge discussed the purpose of GC 15, the relevant context and the
Plaintiffs arguments at paras 52 to 89 of the judgment below.
At
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that the Judge focused more on the prevalent circumstances in the 1950s
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65. One may start off with a few obvious points about the
social conditions in Hong Kong. Hong Kong is a small place
with a big population. For those who know a little about the
history of Hong Kong, there must have been significant
population expansion in the 1950s. No doubt that had put a
strain on much of the available resources. Hong Kong people
are superstitious, likely more so in those days. The points
made above (para 60) on reluctance to live near a graveyard
and the value of neighbouring land being depressed by the
existence of the same must be part of the factual matrix.
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present day situation as well as the situation back in the 1950s. Mr Chan
did not address this paragraph specifically though he contended that
people ordinarily do not have the same level of aversion towards a
graveyard as compared with that towards a columbarium.
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context should be the prevailing situation in 1911 when the clause (which
has become a standard clause for leases in the New Territories) was first
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devised. Counsel further submitted that the relevant context should also
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p.42 and Skips A/S Nordheim v Syrian Petroleum Co Ltd [1984] QB 599
at p.620-621. In the latter case, Oliver LJ said,
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incorporated into the bill of lading were only confined to those conditions
applicable to the carriage and delivery of goods and as such did not
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practice. On the facts of the case, there was nothing to show that the
parties intended to depart from such an established commercial practice.
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The court therefore held that the arbitration clause was not incorporated
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of GC 15 into New Grant 3306 would not have the effect of incorporating
the common intention leading to the initial drafting of that clause in 1911
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into the contract and covenant between the parties to New Grant 3306.
The relevant context remains the prevalent circumstances in 1953 when
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the Grant was made. What could be relevant in such context is that if a
clause had already had an established meaning in 1953 which must have
been well-known to the parties (by way of general practice or decided
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deciding that question prior to 1953 and Mr Chan did not refer us to any
cases to that effect. Taking his submissions to their highest, Mr Chans
contention was that, cremation was not that prevalent in the New
Territories and GC 15 (and its precursor) was not devised for the purpose
of dealing with a columbarium. We shall come back to the historical
origin of the precursor of GC 15 later. At this juncture, it suffices for us
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to say that in any event, the matters relied upon by Mr Chan fall far short
of showing that there had been an established practice of excluding ashes
from the scope of human remains in GC 15. Taking his case to its
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highest, it only shows that up to 1953, there had not been any or much
need to apply GC 15 to ashes. But that is not the same as showing that it
was established before 1953 that human remains in GC 15 could never
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be applied to ashes when such situations should arise in the future. In our
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supra.
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Stores Ltd, supra, to support his contention that the meaning of the words
human remains should not be changed irrespective of subsequent
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wine spirit and beer merchants in a user restriction in a lease did not
change notwithstanding the change in market practice on sales of grocery
and the restricted use could not encompass a store selling goods other
than grocery and alcohol.
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The user
restriction in the lease served the purpose of the landlord in the overall
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management of the whole parade. Thus, the breach of the covenant led to
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can readily be understood why the court refused to extend the meaning of
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Mr Chan in the present case. First, it is quite plain that there was nothing
other than those prevailing at the time of the making of the lease.
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Second, in that case it was quite clear that the meaning of the user
newspapers, magazines, books, cards, records, tapes and a business of
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restriction did not extend to a trade selling items like electrical articles,
video hiring.
circumstances at the time when the Grant was issued, viz 5 August 1953.
Was there anything in the relevant background prevailing on that date
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cremation?
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(b)
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the territory wide position when he should have focused on the position
Dr Baker in respect of Chinese burial practice.
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invalidate the Judges conclusion that cremation was not an alien concept
in Hong Kong. In that respect, Hong Kong being a small territory, there
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urban areas, burial practices in the New Territories could change. This is
particularly so when, according to the evidence of Dr Yao (mentioned at
para 69 of the judgment below), the government was encouraging people
to use cremation.
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developments after 1953, they showed that cremation could not have
been an unknown concept in the New Territories, even though it might
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accept that in 1911, when a similar clause was first proposed, the practice
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of cremation was not prevalent in the New Territories. From the internal
minutes in the government files, it would appear that in those days people
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acrimonious.
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that light and human remains must therefore mean human bodies or
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in graves.
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purpose of the clause, see United Bright Ltd v Secretary for Justice
[2015] 2 HKLRD 633. However, the identification of the purpose should
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not be confused with the substitution of what were said in the minutes
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with the clause itself. Whilst the immediate concern of the government in
1911 was not a columbarium with thousands of niches for the deposit of
cremated ashes, the mischief occasioned by uncontrolled burials in graves
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background that it also held all the land in the neighbourhood, and the
lease was a long term lease, we do not see any justification for cutting
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42.
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who regard a columbarium as a resting place for the dead and they go
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there to pay respects to and/or worship their ancestors. In terms of postfuneral functions, for those who deposit cremated ashes of their loved
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social and land-use control point of view. Viewed from that angle, Mr
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was no suggestion that the grantee was led to believe that the translation
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45.
columbarium of HDT was built was OZP 21, we agree with Mr Chan that
the relevant plan for the purposes of this appeal is OZP 21.
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the other hand, columbarium use was not a permitted use for land in
such a zone. It appeared as a permitted use in other zones: Government,
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It means that such use may be permitted with or without conditions on application to the
Town Planning Board.
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No 66433, which was the relevant set of definitions when OZP 21 was
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ancillary office, car parks and/or quarters that are essential to the
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submitted that the land use should still be regarded as RI (with the
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functions at the same site. Some religious bodies run schools or social
service or community centres at the same building or site where they also
organize religious activities. From the land-use and town planning point
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of view, it would not be right to group all such different functions into
one single use as RI. The correct approach is to ask whether in substance
different primary uses are being made of the land as opposed to one
activity or function being ancillary to the primary use as a religious
institution. If there were distinct uses in the sense that a particular use
cannot properly be regarded as being incidental or ancillary to one
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primary use, all the uses should comply with the planning requirements
under the relevant OZP. Any other approach is unacceptable because it
would give free rein to a religious organization to carry on activities
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On the facts of the present case, we agree with the Judge that
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religious activities.
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52.
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definition for RI. With respect, we cannot draw the conclusion (which
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definition of columbarium.
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Disposition
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We dismiss the appeal and make a costs order nisi that the
plaintiff shall pay the costs of the defendant in this appeal, with certificate
for 2 counsel. Such costs are to be taxed if not agreed.
(M H Lam)
Vice-President
(Maria Yuen)
Justice of Appeal
(Jeremy Poon)
Justice of Appeal
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