TNAG-2483-FCO40-3614-UK-Hong-Kong-Scholarship-Scheme-donation-to-the-UK-Governme-1992 — Page 24

GW

Charity Commissioners

for England and Wales

Charity Commission, Woodfield House, Tangier, Taunton, Somerset, TA1 4BL

Fax 0823 345002 Telephone Direct Line 0823 345

GTN 1389

}

011

Ms Sarah J Haspell

Hong Kong Department

Foreign and Commonwealth Office

London

SW1A 2AH

General Enquiries 0823 345000

27th April 1992

Dear Ms Haspell

GIFT OF SIR S K TANG

Robert Venables has asked me to help in relation to this matter and I am therefore now writing, as agreed in our recent telephone conversation, to let you have our views on the matter in the light of Ms Doherty's letter of 22nd May last. Please accept my apologies for the delay which has occurred.

As Robert Venables indicated in his letter of 20th November 1989, the lack of certainty in the original gift would not under English Law be a problem in making new provision for the application of the property because the fact that the particular objects or purposes have not been defined would not, under English Law, invalidate the gift: where the overriding intention of a donor is charitable but no mode for carrying it into effect has been prescribed, the law provides a "mode", or mechanism. (Moggridge v Thackwell (1803)).

There is a question, however, of exactly what that "mode" should be.

When Robert Venables saw the matter previously he of course suggested that the commissioners could make a Scheme both to declare the purposes for which the property could be applied and to make new arrangements for its administration, by virtue of our concurrent jurisdiction with the High Court to make Schemes for charities. Senior Crown Counsel in Hong Kong has taken the same view in paragraph 12 of her memorandum of 27th February 1990.

The difficulty is, however, that the jurisdiction of the Court (and therefore that of the Commissioners) to make Schemes for the administration of charities only arises where there is a trust. When expressing his view that the Commissioners could make a Scheme, Robert Venables was assuming that in this case the gift had created a trust but the advice since received from Senior Crown Counsel in Hong Kong is of course to the effect that whilst there was an effective gift to charity the donation did not create a trust. Counsel alludes in particular (in paragraph 6 of her memorandum) to the fact that the wording of the letter of 10th March 1986 is "wholly unaccompanied by a mention of any trust".

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