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Hong Kong courts

Hong Kong columbarium ordered to remove ashes after losing court fight on what counts as ‘human remains’

High Court rules Memorial Park Hong Kong should refund clients who had bought some of the 3,300 niches at columbarium since 2008

PUBLISHED : Friday, 31 August, 2018, 8:15am
UPDATED : Friday, 31 August, 2018, 8:15am

A Hong Kong court on Thursday ordered a private columbarium in Sha Tin to remove all the ashes there, potentially putting those who entrusted the remains of their loved ones to the facility over the past eight years in limbo.

Deputy High Court judge Marlene Ng May-ling ruled that Memorial Park Hong Kong in Fo Tan Village should refund clients who had bought some of the 3,300 niches at the columbarium since 2008, two years before it started operating. The columbarium has not said how many niches are involved.

The legal battle was brought by Memorial Park Hong Kong Limited in 2010 against the secretary for justice in a bid to clarify whether ashes counted as “human remains” mentioned in a government land lease condition that bars it – and many other columbariums – from operating.

A company spokesman said, the defeat aside, the firm had applied for a permit under the Private Columbaria Ordinance which came into force on June 30 last year. The ordinance provides for the licensing of non-government columbariums for keeping cremated remains.

He said the lawsuit was instigated eight years ago because such a scheme had not existed. “We have applied for it [the permit] in accordance with the procedures,” he said.

But the spokesman said the company would appeal the judgment and apply for the order to be set aside temporarily.

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The court case centred on the general conditions signed between the company and the government, when the former bought the site in the 1940s.

One condition states that without the consent of a designated official, the district officer, the company cannot deposit human remains at the New Territories site.

During the court hearing, the company’s lawyers argued that ashes, which the columbarium houses, were different from “human remains” found in graves, for instance.

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In a judgment on Thursday, Ng ruled the issue had already been settled by the Court of Appeal in 2014, in a case concerning Hong Dao Tang, another private columbarium in Kwai Chung.

Ng ruled ashes would be within the meaning of human remains, and also rejected the company’s other argument that it should be allowed to continue its business because of the government’s lax attitude on private columbariums in the past two decades.

In the present case, she said, the District Land Office had already approached the columbarium, warning multiple times it would be in breach of the condition, when it carried out renovations in 2008 to install 3,300 niches. Nonetheless, the officers were refused access to the site.

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She also said even though there might be a lack of enforcements for other facilities, it would not be comparable as they were not in the same locality.

“It is difficult to see how it can be said the government had abandoned enforcement action,” she wrote.

On the Food and Environmental Hygiene Department’s website, Memorial Park is on a list of applicants for a private columbarium permit. The application is still in progress, the Post has learned.