TANG POON LAP v. TANG KAM KAI AND OTHERS

CACV 99/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 99 OF 2004

(ON APPEAL FROM HCA NO. 761 OF 1996)

----------------------

--------------------

----------------------

J U D G M E N T

----------------------

Hon Stock JA:

Introduction

1. This is an appeal against the decision of Yam J dated 1 March 2004 by which he granted a declaration that the plaintiff (respondent) is a member of the Wing Lung Wai Community, an organization established under traditional Chinese law and custom and holding land in the New Territories pursuant to sections 13 and 15 of the New Territories Ordinance, Cap. 97; and by which he granted an order that the defendants (the appellants), who are the registered managers of the Community, admit and register the plaintiff as a member and household member of the Community and, further, an order that they account for and pay to him distributions due to him as a member and household member since 1942.

2. The members of this Community are male descendants of several tsos under the clan name Tang, living in an enclosed village in Kam Tin, called Wing Lung Wai Village.  The plaintiff claimed that he was born in that village in 1938, the only son of Tang Tat Yi, it being common ground that Tang Tat Yi was one of the descendants of one of the constituent tsos and a member of the Community.  Tang Tat Yi was, at all material times prior to his death in 1942, the owner of a number of houses in the village.  It was also common ground that Tang Tat Yi was the father of one Tang Poon Lap.  The plaintiff claimed to be Tang Poon Lap, a claim disputed by the defendants; and it is that issue of identity that came to be the sole issue at trial, an issue that was resolved in favour of the plaintiff.

The plaintiff’s case

3. The plaintiff’s testimony was that he was born in 1938 and that his parents had died in the course of the Japanese invasion of Hong Kong, whereafter he was cared for by his grandmother who, because of the severely adverse conditions that fell upon them in Hong Kong, took him to the Mainland where eventually they were lodged at a monastery, the abbot of which gave the plaintiff the name Tak Ning.  He said that his grandmother was Lam Kam Tai, the wife of Tang Chun Sau, who was the father of Tang Tat Yi.  It was not disputed that Lam Kam Tai was the grandmother of Tang Poon Lap.  In 1982, according to this account, the plaintiff came to Hong Kong with his eldest son in order to conduct some business and, whilst here, took the opportunity to visit his ancestral home in the village.  During that visit, he spoke to the first defendant (Tang Kam Tai) who was a manager of the Community as well as to a person called Tang Wing Sau who was the village representative.  He showed them a photograph of his late grandmother, and these two officials examined him as to his knowledge of the village and its environment and as to his circumstances.  He was informed that the land and houses registered in the name of Tang Tat Yi were under occupation by other village members, and the suggestion was made that he should return to the village to regularize the position.  To that end, letters were written by Tang Wing Sau to various authorities on the Mainland urging them to permit the plaintiff to come to Hong Kong.  These letters were produced in evidence.  The letters represented that the plaintiff was the only son of Tang Tat Yi.

4. Eventually the plaintiff was granted a travel permit, and in February 1985 he came to Hong Kong.  A week or so after his arrival, a meeting of the village elders was held in the ancestral hall and the minutes of that meeting were also produced at trial.  Amongst those who signed those minutes was the first defendant.  Those minutes evidence an agreement by the elders that the plaintiff was indeed Tang Poon Lap the son of Tang Tat Yi, and a resolution was passed that $20,000 be allocated to him to enable him to repair his house and to conduct certain ceremonial functions.  There are other documents of this ilk, in other words documents coming from village officials attesting to the validity of the plaintiff’s claim to be the son of Tang Tat Yi.  Letters were written to the Immigration Department in support of an application for the issue of an identity card to the plaintiff.  In March 1985, Tang Wing Sau certified in writing, for the benefit of descendants of the clan, that upon investigation it had been found that the plaintiff was the person Tang Poon Lap.  That certification was witnessed by the first defendant.  In March 1986 the District Officer, Yuen Long, notified the plaintiff that approval had been given under section 17 of the New Territories Ordinance for him to succeed to the estate of Tang Tat Yi and, subsequently, the first defendant witnessed the plaintiff’s acceptance of inheritance submitted to the District Office culminating in the registration of succession in May 1986.

5. The plaintiff pressed village officials to recognise his status and to register him as a household member.  To this end, in October 1986, he wrote a letter to the Community managers asserting once again his identity as Tang Poon Lap and requesting them to “restore my original household status”.  He ended the letter by asking those who supported him to sign at the foot of it.  Amongst those who signed were the first, third and fourth defendants in the present action.  He also subsequently received from the Community various sums due as distributions to male descendants of the tso to which he had claimed to belong.  All this said, however, some of the defendants refused to register the plaintiff as a householder in the village and accordingly these proceedings were instituted.

6. The plaintiff also commenced proceedings against those who occupied his late father’s properties.  The first and second defendants in this action were the tenants of one Tang Pak Wing, the third defendant in the possession proceedings.  In respect of the possession proceedings, Tang Pak Wing eventually withdrew his opposition and an order for possession was made in October 1991, with damages to be assessed by a Master.  In the event, damages were assessed in May 1992 by Master Yam, as he then was; that is to say, by the same judicial officer as the trial judge in this case.

The defendants’ case

7. In testimony proffered on behalf of the defendants, it was conceded that any lawful heir of Tang Tat Yi would be entitled to membership of the Community; but the defence case at trial came down to this, that they were not satisfied that the plaintiff was the person Tang Poon Lap.  There was some suggestion too that the Community was entitled in its absolute discretion to admit or to refuse household membership within the Community.  This latter assertion was contradicted by expert testimony.

The judgment below

8. On the last day of trial, 1 March 2004, and having heard submissions from counsel, the judge said this:

“COURT: I’ll just announce the conclusion I’ve reached in this case, I’ll give a full written judgment later on.

In this case, I consider that the standard of proof is just the balance of probabilities, and I am satisfied on the balance of probability, that the plaintiff has proven his case and that is to say, this Mr Tang Tak-ning is Tang Poon-lap himself by the evidence before me, and therefore, the plaintiff is entitled to the two declarations as stated in page 26 of the plaintiff’s final submission and the claim.

And that is, the declaration the plaintiff is a member of Wing Lung Wai Tai Chung community, this Wing Lung Wai Tai Chung alias Wing Lung Wai (Wing Lung Wai Tai Chung) and he is also a household member of the same two, and order that the defendants do forthwith, add with forthwith, admit and register the plaintiff as a member and a household member of Wing Lung Wai Community alias Wing Lung Wai Tai Chung, alias Tang Wing Lung Wai (永隆圍大眾).

3, and order that the defendants do account and pay to the plaintiff all distributions payable to the members of the community since 1942, and the taking of the accounts with all the necessary inquiries to be made, shall be before a Master of the High Court.

I have considered the submissions of Mr Li in respect of the question of costs.  I do not consider it is a case which I should make indemnity costs order.  So the fourth order I am going to make is just cause of the action be to the plaintiff to be taxed if not agreed.

The original register book that is requested by the defendant shall be given back to the defendants.  I do not think there is anything else?

MR LI:   No, I’m obliged, in any event, my Lord.

COURT: Good day.”

9. On 7 April 2004, the defendants filed a Notice of Appeal.  By that date, the “full written judgment” to which the trial judge had referred had not been delivered.  It was delivered in Chinese on 28 April 2005.  It has subsequently been translated and the translation has the trial judge’s approval.

10. The judgment fully rehearsed the respective cases for the plaintiff and the defendants, the history to which I have referred, and the relevant documentation.  The judge said that the evidence of the plaintiff:

“	… was essentially consistent and comprehensive.  He did not change the evidence about his life history which he had always asserted.  Indeed, it is remarkable that he could still remember the past events so clearly at his age.
	37.	The defendants alleged that the plaintiff was just putting up a show when he took out his grandmother’s photo and cried in court.  It was not a true feeling.  When the plaintiff took out a sketch of his grandmother and explained in tears that it was made from a black and white photo, as the original was no longer available, I could clearly feel that he was showing his true feeling.  Noting that the plaintiff’s parents died when he was still a small child, he managed to survive the war only because his grandmother struggled to raise him.  He was thus extremely close to his grandmother.  It is not surprising that he burst out crying when he talked about the passing away of his grandmother in court.  I do think that such behaviour is normal and is an expression of true feelings.  It is not ‘putting up a show’ as suggested by counsel in his submission.
	38.	That being the case, I accept that the plaintiff is an honest and reliable witness and I accept his evidence.”

11. The judge assessed the testimony of the two defence witnesses called, one of whom was Tang Pak Wing, to whom reference has already been made in this judgment and who had been one of those on the land which was the subject of the possession action.  The judge concluded both from that fact and from the terms of certain minutes drawn upon by Tang Pak Wing that Tang Pak Wing was not a person who could properly be considered neutral in the current dispute.  He noted as well the documentary evidence in which the first, third and fourth defendants had recognised the plaintiff as Tang Poon Lap.

The grounds of appeal

12. There are ten grounds of appeal constituted by the amended Notice of Appeal before us.  I have to say that, as framed, a number of them have not been easy to follow.

(1)	The first ground is a suggestion that the writ was defective because the plaintiff is therein described as “Tang Poon Lap also known as Tang Tak Ning”, whereas the plaintiff has always only identified himself as Tang Tak Ning.  It is an entirely unmeritorious point that deserves no further discussion.
(2)	The next ground is that the judge was wrong in adopting the standard of proof which he did.  The judge approached the case on the basis that it was for the plaintiff to prove the question of identity upon a balance of probabilities.  It is said that where the sole issue in a case is that of identity, the person asserting himself to possess that identity should “leave no fanciful doubt” on the issue.  The authority advanced in the skeleton argument in support of this proposition does not support the proposition at all.  It is a matter of considerable surprise that this ground has been advanced.  It too has no merit whatsoever.
(3)	The third ground reads as follows: “The learned judge failed to consider the conflicting oral evidence given from the Appellant’s witness Tang Pak Wing in demonstrating that the respondent failed to establish its own identity.”  As put in the ground of appeal, it is impossible to understand what is alleged to be the error.  Mr Chu has developed the argument before us this morning and it suffices for me to say that this is an issue with which the judge has dealt in his judgment and that the argument does not impress.
(4)	It is next asserted that the judge failed “to identify the chain of the documentary evidence adduced is entirely hearsay” and that the judge “further erred in his findings of fact in not accepting the cogent rebuttal evidence adduced by the appellant”.  Here several grounds seem rolled into one.  The documents referred to by the judge were, we are told, the subject of proper hearsay notices.  There is nothing in this point or in the other points mixed in with it.
(5)	The fifth ground asserts that the judge failed to accord to counsel adequate time in cross-examination and interrupted the cross-examination “rendering a fair trial impossible”.  It is further asserted that the judge ought to have ordered that the evidence-in-chief be heard orally rather than accepting the witness statements as evidence in-chief.  Counsel has provided particulars of the suggested untoward interruptions and we have studied them.  There were indeed interruptions but they were not untoward, and I am entirely satisfied that they were directed at clarification where clarification was desirable, at asking sensible questions to put matters in chronological sequence and, occasionally, at preventing counsel from asking questions which he ought not to have asked.  In this last category, for example, counsel particularizes a stage at which the judge said: “You cannot ask these questions.”  Yet if one looks at that comment in proper context, the judge was doing no more than telling counsel that he could not ask questions covered by legal professional privilege.  In the same vein, counsel complains that the court below stopped him at another stage from asking a question, in respect of which I am not surprised at the judge’s attitude, for the question that counsel put went as follows: “Your solicitors … On what basis did they think that you were also known as Tang Poon Lap?”  The judge stopped counsel from pursuing that question; and that counsel should now advance a complaint about the judge’s action in that regard is, in my judgment, quite extraordinary.  A reading of the transcript shows that counsel was allowed full latitude in pursuing cross-examination and that he availed himself of it.  As to the second point – whether evidence-in-chief ought to have been led orally rather than by the production of witness statements – the procedure adopted at trial was the agreed procedure.  The point advanced is therefore gratuitous and ought not to have been made a ground of appeal.  It is a bad point.
(6)	(a)	One of the orders made in the plaintiff’s favour was an order that the defendants account for and pay to the plaintiff “all distributions payable to the members of the community since 1942.”  1942, it will be recalled, was the date of the death of the plaintiff’s father.  The sixth ground of appeal is that the judge was in error in making this order in that it presupposes that the plaintiff was entitled to distribution since 1942 and that such a supposition was “in complete contradiction with the customs of the Community which would only admit household members upon their own specific rules in which evidence were given at trial and not rebutted by the plaintiff at all.  In any event, the plaintiff’s evidence is that only male descendants reaching the age of 18 should be admitted.  The plaintiff was born in about 1938 and in 1942 he was about four years old.”
	(b)	This ground has been developed orally today by Mr Chu.  I am satisfied that there is nothing in it.  The amended Statement of Claim pleaded that Tang Tat Yi passed away in about 1942 and it is asserted that after his death, “the plaintiff as the only son of Tang Tat Yi is a household member of the Community” and “is also a beneficiary of the assets and properties of the Community managed by the defendants by virtue of his aforesaid membership of the Community”; and that in support of these contentions the plaintiff would rely on Chinese customary law which applies to the Community by virtue of section 13 of the New Territories Ordinance.  Consequently, so the claim ran, he was entitled as a household member to distributions due to such members since the date of his father’s death.  The amended Defence denied that the plaintiff was entitled to be admitted to membership of the Community, but this denial was put on the footing that the plaintiff had not proved to the Community’s satisfaction that he was the lawful son of Tang Tat Yi, and that the plaintiff did not reside in the Community or perform any duties and obligations of its members.  There was no suggestion in the Defence that even if it were proved that the plaintiff was the descendant of Tang Tat Yi, his entitlement to distributions ran only from the age of 18 years.
	(c)	The contention is, in any event, contrary to the evidence adduced below.  The evidence of the plaintiff was that in the case of an only son who was unmarried, that son automatically succeeded to his late father’s membership upon the death of the father.  The testimony of the defence witnesses was to the same effect, and I have here in mind the evidence of Tang Hon Yeung that household membership was through blood lineage on the male side of the family, and that “the right to membership is conferred at birth to the descendants of the testators who had vested property in the Community.”  He said that “for the sons of existing members, they are only formally admitted and registered as a household member on becoming married and the younger son or an only son can only be a household member on succeeding their father’s household membership.”  The reference to “sons of existing members” is self-evidently a reference to sons whose fathers remain alive at the dates the sons seek registration as household members.  As we know, that was not the present case.  Moreover, the expert evidence adduced on behalf of the appellants themselves runs contrary to the suggestion now made.  That evidence was, uniformly, to the effect – as we see from the statement of Wejen Chang – that “the son will, upon the father’s death, automatically inherit the father’s property, including his share of interest in the assets held by his Tso as a property holding entity for the benefit of its members”; and that once it was confirmed that the plaintiff was the only lawful son of Tang Tat Yi “his rights and obligations regarding the community began upon Tang Tat Yi’s death.”
(7)	The seventh ground asserts that “the learned judge is wrong in principle in granting any remedy in view of the laches of the respondent, in particular the delay in applying for membership upon reaching the age of adulthood, that is about 1957.”  The less I say about this ground the better.  It has never been raised before.  It was not pleaded.  It was not argued.  It has in any event no merit whatsoever.
(8)	The eighth ground (as well as the ninth and 10th) has recently been added by way of an amended Notice.  This ground, pursued orally this morning by Mr Chu, complains of the fact that the judgment handed down in April 2005 was in Chinese rather than in English.  The complaint is that “the judge failed to announce or articulate the reasons why the written judgment was in Chinese whilst the case was conducted in English (save for the examination of witnesses)”.  It is difficult to follow the complaint.  It seems that this is said somehow to constitute procedural unfairness to the appellants.  It is said in the written argument that it was unjust to deliver a Chinese judgment.  Mr Chu was this morning entirely unable to advance any basis for the suggestion or any particular of the way in which the appellants were prejudiced.  There is nothing before us to suggest that the delivery of the reasons for judgment in Chinese was unlawful and in any event there is no conceivable disadvantage to the appellants in the course adopted by the trial judge.  This point is a bad one.
(9)	It is then said that the judge was biased by reason of his comment in his judgment that counsel for the defendants had submitted that the plaintiff had been “acting”.  This, it seems, is a reference to paragraph 37 of the judgment in which the trial judge did not accept counsel’s suggestion in submissions that the plaintiff’s display of emotion when testifying about the death of his grandmother was “a show”.  The contention, in the grounds of appeal, is that there was no such submission made by counsel.  That is a surprising contention because we see that there was indeed such a submission.  We have a copy of counsel’s closing written submissions in which he referred to that display of emotion as “a drama planned”.  The point is bereft of merit.  It is a point that should not have been taken.
(10)	Finally, it is asserted that the judge should have recused himself from hearing this action because he, in his former capacity as Master, had been engaged in the assessment of damages in the possession proceedings to which Tang Pak Wing had been party, and Tang Pak Wing was one of the two defence witnesses in this case.  Further, it is said that the judge, having declared that he had acted as Master in the possession proceedings, said that he did not remember the previous case; whereas in the written judgment he provided details of that case.  This, yet again, is an astonishing ground, in my judgment, to put forward.  No objection was taken to the judge hearing this case, though counsel was aware of the previous possession proceedings and of the judge’s role in them.  The fact that the judge provided some detail of those previous proceedings is in no way inconsistent with his assertion that he had no personal recollection of them, given the fact that a written judgment was delivered in relation to the assessment of damages and the bare facts mentioned in the present judgment about those earlier proceedings were no doubt taken from that earlier written judgment.  There is no risk whatsoever that a fair-minded and informed observer would conclude that there was any real possibility of bias.

13. In the body of the skeleton submissions, additional points, not included in the grounds of appeal, have been thrown in for our consideration, with certain assertions that the judge erred as to various findings of facts.  Since they are not Grounds of Appeal, they ought not to have been put forward.  I can say that in any event I see nothing whatever in them. 

Result

14. I would dismiss this appeal.

The adjournment application

15. For the sake of completeness, I should add that an application was made by counsel for the defendants this morning that this hearing be adjourned on the basis that leading counsel was not able to appear.  The suggestion that counsel was not able to appear was, strictly speaking, inaccurate.  It transpires that leading counsel was not prepared to advance arguments and what the appellant wanted to do was to obtain an adjournment merely to find some other leading counsel who might in due course see some merit in one or other of the grounds to which I have referred.  It will be self-evident from our judgments why we refused this application.

Hon Le Pichon JA:

16. I agree.

Hon Sakhrani J:

17. I also agree.

Hon Stock JA:

18. Accordingly, this appeal is dismissed. 

[Submissions as to costs]

Costs

19. We have heard counsel as to costs.  The plaintiff is clearly entitled to the costs of this appeal and the only question that arises is the basis upon which that order should be made.  In my judgment, it is difficult to envisage an appeal with such scant merit as this and I am satisfied that each of the grounds advanced has been entirely baseless and frivolous and that this is an appeal which warrants an award of taxation of costs on an indemnity basis.  That is the order I would make.

Hon Le Pichon JA:

20. I agree.

Hon Sakhrani J:

21. I agree.

Hon Stock JA:

22. Accordingly, the costs of the appeal shall be to the plaintiff to be taxed on an indemnity basis.