That being so, the position under English Law would seem to be that the gift would need to be carried into effect not by means of a Scheme of the Court or the Commissioners but by means of a direction under the Sign Manual. This is because where no trust is created and the property is given to charity generally, the duty of disposing of the property devolves upon the Crown as constitutional trustee, which is then able to dispose of it in its character as parens patriae: Moggridge v Thackwell; Re Bennett [1960] Ch 18.
I gather that in such a case the practice of the Crown is to act on principles similar to those by which the Court is governed when framing Schemes. The Crown's directions are given under the Sign Manual and were formerly given by the Sovereign personally after considering advice from her Attorney General. In 1986 however, the power to give directions (at least as far as this country was concerned) was delegated entirely to the Attorney General. Applications for the exercise of those powers are now made through the Treasury Solicitor.
In the light of these considerations I am afraid that, with the greatest of respect to Hong Kong Crown Counsel, we doubt whether the Commissioners (or the English Court) would be in a position to remedy the situation by establishing a Scheme to give effect to the donor's charitable intention.
I would suggest, therefore, that you may wish to refer the matter back to the Attorney General's Chambers in Hong Kong to establish whether it is accepted that the position is as stated above and, if it is, whether the appropriate direction under the Sign Manual could be given by the Attorney General for Hong Kong. If the view is taken that that would not be possible, the matter would presumably then have to be referred to the Treasury Solicitor here, on behalf of the Attorney General.
I am of course sorry that we have had to take a different view of the matter in the light of Crown Counsel's advice, especially when you have had to wait so long for a reply. In view of the delay we shall of course be very willing to assist in any way we can. We would, in particular, be happy to give an indication of the kind of provisions we would include in a Scheme had we been in a position to make one, if that would be helpful to the Attorney General for Hong Kong or the Treasury Solicitor. Additionally, if and when a direction under the Sign Manual is given it would seem that we shall in any event have to register the Charity under s.4 of the Charities Act 1960.
I hope this letter is of some assistance. Please let me know if I can be of any further help at this stage, however.
Yours sincerely
Stephen Stack,
S SLACK
P.S. Since dictating this I have received your letter of 15th April, with its enclosure, for which I am grateful.
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