HAU POON SEK AND OTHERS v. HAU CHI KIN AND ANOTHER

HCA 2168/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2168 OF 2004

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J U D G M E N T

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1.  What the Court has to decide in this action is whether the Defendants, Hau Chi Kin (侯志堅)and Hau Kin (or Chi) Cheung (or Cheong or Cheng) (侯健昌), are members/beneficiaries (有份人) of Hau Shiu (or Siu or Chiu or Shu) Ki Tong (侯紹箕堂) (“Shiu Ki Tong”), a tong registered under s.15 of the New Territories Ordinance (Cap. 97) (“the Ordinance”) and of which the Plaintiffs, Hau Poon (or Pun) Sek (侯磐石), Man Choi Ho (文才好), Hau Koon Kei (侯冠基) and Hau Man Ming (侯文明), are the current sze lei (司理) (managers).

THE HAU CLAN IN PING KONG VILLAGE, SHEUNG SHUI

2.  Hau Poon Sek, Hau Koon Kei and Hau Man Ming, the first to third-named Plaintiffs, Hau Kai Fat (侯繼發), the husband of Man Choi Ho, the fourth-named Plaintiff, and the Defendants are all descendants of one Hau Poon Chung (侯本中) alias Hau Hip Yiu (侯協堯), the 23^rd generation ancestor of the clan surnamed Hau (“the Hau Clan”) in Ping Kong Village, Sheung Shui, New Territories through Hau Kam Cheung (侯錦章), the elder son of Hau Poon Chung, and Hau Sek Kui (侯錫琚) alias Hau Kei Sau (侯琪秀), the son and heir adopted posthumously for Hau Kam Cheung who had died without leaving any male issue from his younger brother, Hau Fung Cheung (侯鳳章).

3.  Insofar as it is material to this action, as shown in the genealogy charted in Schedule 1 to this Judgment (“Schedule 1”), 

(1)  Hau Sek Kui had 5 sons who attained majority: Hau Sum Cheung (侯森祥), Hau Lun Cheung (侯麟祥), Hau Hin Cheung (侯顯祥), Hau Chun Cheung (侯鎮祥) and Hau Chik Cheung (侯藉祥).  The 5 fongs (房) (branches) formed by Hau Sek Kui’s aforesaid 5 sons shall hereafter be called “the 5 fongs” when referred to collectively.

(2)  Hau Poon Sek, the first-named Plaintiff, is the great grandson of Hau Sum Cheung.

(3)  Hau Kai Fat, the husband of Man Choi Ho, the fourth-named Plaintiff, is the great grandson of Hau Lun Cheung.

(4)  Hau Koon Kei, the third-named Plaintiff, is the great grandson of Hau Hin Cheung.

(5)  The Defendants are the great grandsons of Hau Chun Cheung through the adoption by Hau Yiu Hing (侯堯興), Hun Chun Cheung’s son, of the Defendants’ father, Hau Yun Wei (侯潤槐) who was the eldest natural son of Hau Kin Chung (侯乾仲), Hau Hin Cheung’s only son.  

(6)  Hau Man Ming, the second-named Plaintiff, is the grandson of Hau Chik Cheung.

DIVISION OF HOUSEHOLD (分家) AMONG THE 5 FONGS

4.  Hau Sek Kui died in 1894.  As evidenced by a document dated 1895 referred to at the trial as “the 1985 fan ka Document”, disclosed and produced by the Defendants and accepted as authentic by the Plaintiffs, a division of Hau Sek Hui’s household took place in 1895.

5.  The 1895 fan ka Document reads as follows:

“蓋以敦倫飭紀不外祇恭拆產分財須冺偏倚外兄琪秀翁勤慎守已儉約持家自我姊于歸而後中饋有主內助克成由是置有田產而家道日隆焉不料外兄於光緒甲午年捐館遺下田園房產業悉歸我姊總理家政今以年老憚煩意欲分產五子聽命維謹長子森祥次子麟祥四子濬祥五子藉祥皆我姊在生嫡出也三子顯祥側室所生庶出也麟承姊命義無可辭遂邀集其宗親純卿世好衡南翁從中公議但其長子早卒無嗣外兄臨終遺囑及家姊面命以次子麟祥之子炳康承繼今將家產分為五股均分另補長孫穀叁拾肆石與炳康管業尚餘穀壹百石留為姊我及側窒黃氏生為食口歿作喪費之用至於嘗穀則以五家按序輪收週而愎始所議若此質之嫡叔雲秀等均謂合式麟祥兄弟五人亦各心悅誠服茲持設立分單部各一卷母存一卷共陸卷分執為據自分以後壎篪協奏和氣定可致祥棣鄂聯輝厚德庶堪獲褔子子孫孫勿替引之所有條欵開列于左

庶母黃氏

嫡母鄧氏

五子藉祥

四子濬祥

三子顯祥

次子麟祥

長孫炳匡

光緒廿壹年歲次乙未正月念叁日立分單人母舅鄧惠麟”

(emphasis added)

6.  Included as one item with the aforesaid is a two page document (which shall be included in the shorthand description “the 1895 fan ka Document”) beginning with the following 3 lines :

“敦仁堂協堯祖遺下嘗業大/二宅歷年分收

大宅值光緒双年收 乾元亨利貞五分均分

二宅值光緒單年收”  (emphasis added)

(Hau) Tun (or Dun) Yan Tong (侯敦仁堂) (“Tun Yan Tong”) is a tong focused on the said 23^rd generation ancestor, Hau Poon Chung alias Hau Hip Yiu.  What follows is then a list of fields that were sheung yip (嘗業) (ancestral property) passing down from Tun Yan Tong to Tai Chak (大宅) (referring to Hau Kam Cheung’s branch of the family) and Yi Chak (二宅) (referring to Hau Fung Cheung’s branch of the family), the income receivable from each such field, etc.   

7.  As shown in Schedule 1, Hau Sek Kui was survived by his widow, Tang Si (鄧氏), his concubine, Wong Si (黃氏), and 4 sons namely, Hau Lun Cheung, Hau Hin Cheung, Hau Chun Cheung and Hau Chik Cheung. 

8.  According to the 1895 fan ka Document, Tang Si, pleading the stress of advanced years, called upon her brother, Tang Wai Lun (鄧惠麟), to effect an equal division of Hau Sek Kui’s household among his 5 sons in the presence of the family elders. 

9.  Since Hau Sum Cheung had predeceased Hau Sek Kui without leaving any male issue, Tang Wai Lun, acting in accordance with the dying wishes of Hau Sek Kui, first of all arranged for the adoption of Hau Lun Cheung’s eldest son, Hau Ping Hong (侯炳匡) alias Hau Wun Man (侯煥明), to the line of Hau Sum Cheung. 

10.  As explained by Professor Hugh Baker, the Defendants’ expert on Chinese custom, in his Supplemental Opinion dated 13 May 2008, the property dealt with at the household division evidenced by the 1895 fan ka Document fell into 3 categories:

(1)  ka chan (家產) (family estate), i.e. the property personal to Hau Sek Kui’s household, was divided into 5 equal shares for distribution among the 5 fongs after setting aside an extra portion for Hau Ping Hong, the eldest grandson, and another portion for the maintenance and eventual burials of Hau Sek Kui’s widow and concubine;

(2)  sheung kuk (嘗穀) (ancestral grain) was to be taken in turn by the 5 fongs in order; and

(3)  income from sheung yip coming down from Tun Yan Tong was to be collected by Tai Chak and Yi Chak, the former on even-numbered years of the Gwong Sui (光緒) reign and the latter on odd-numbered years and to be shared equally between the 5 fongs when collected by Tai Chak.  

11.  Unfortunately, what is left of the 1895 fan ka Document does not show the breakdown of division of the ka estate among the 5 fongs or what sheung kuk or sheung yip were comprised of.

FAMILY TONGS FOUNDED BY THE HAU CLAN

12.  Members of various generations of the Hau Clan had founded and had, since the coming into force of the Ordinance, have registered under s.15 thereof a number of tongs.  Shiu Ki Tong is one such tong.  Other than Shiu Ki Tong and Tun Yan Tong mentioned in paragraph 6 above, the following Hau family tongs also feature in this case:

(1)  Hau Tai Chak Tong (侯大宅堂) (“Tai Chak Tong”) which is focused upon Hau Kam Cheung and composed of all his descendants;

(2)  Hau Yi (or U or I) Chak (or Tsak) Tong (侯二宅堂) (“Yi Chak Tong”) which is focused upon Hau Fung Cheung and which appears to have been set up to hold property passing down from Tun Yan Tong to Hau Fung Cheung’s family; and

(3)  Hau Sun (or Shun or Suen or Sau) Mau (or Mao or Mo) Tong (侯萱茂堂) (“Suen Mao Tong”).

LAND HOLDINGS OF THE 5 FONGS & THE HAU FAMILY TONGS  

13.  Included in the trial bundles are copies of the substituted Schedules of Crown Lessees dated 27 June 1907 (“the Crown Lease Schedules”) to the Block Crown Leases dated 27 March 1905 of Demarcation Districts (“DD”) Nos. 76, 77, 82, 84, 91, 92, 95, 100 and 108.

14.  The Crown Lease Schedules show that as at 27 June 1907, each of Hau Ping Hong, Hau Lun Cheung, Hau Hin Cheung, Hau Chun Cheung and Hau Chik Cheung had registered to his personal name a substantial holding of land.  However, due to the lack of information of the precise distribution of Hau Sek Kui’s ka estate among the 5 fongs, it is now impossible to ascertain whether and, if so, which of the lands registered in the names of Hau Ping Hong, Hau Lun Cheung, Hau Hin Cheung, Hau Chun Cheung and Hau Chik Cheung were transmitted to them from Hau Sek Kui though it would in my view be reasonable to suppose that at least some of such lands were inherited by Hau Ping Hong, Hau Lun Cheung, Hau Hin Cheung, Hau Chun Cheung and Hau Chik Cheung from Hau Sek Kui.

15.  As for the tongs, it is agreed between the parties that as at 27 June 1907,

(1)  Shiu Ki Tong had registered

(a)  under its sole name 44 lots in DD 76, 77, 82, 91, 92 and 95 totalling 11.84 acres in area;

(b)  as co-owning with Yi Chak Tong 53 lots in DD 76, 77, 82, 84, 91, 92, 94, 100 and 108 totalling 13.34 acres in area; and

(c)  as co-owning with others Lot No.2802 in DD 91 of an area of 0.29 acre.

(2)  Suen Mao Tong had registered under its sole name 50 lots in DD 76, 91, 92, 94 and 95 totalling 14.59 acres in area. 

Incidentally, the Crown Lease Schedules are the earliest documents on which the names of Shiu Ki Tong and Suen Mao Tong appear, indicating that these tongs must have been formed before 27 June 1907.

16.  As for Tai Chak Tong, there is no record of any land holdings registered to this tong.

LOTS 666& 667 in DD 76, LOT 1241 IN DD 77 & LOT 358 IN DD 84

17.  The lands co-owned by Shiu Ki Tong and Yi Chak Tong as at 27 June 1907 included Lots 666 and 667 in DD 76, Lot 1241 in DD 77 and Lot 358 in DD 84. 

18.  Lot 1241 in DD 77 and Lot 358 in DD 84 are still registered in the joint names of Shiu Ki Tong and Yi Chak Tong. 

19.  Lots 666 and 667 in DD 76 had long been disposed of as follows:

(1)  On 25 August 1909, each of Lots 666 & 667 were partitioned into 2 sections:

(a)  Section A to Hau Shu Tseung (侯庶祥), one of the then managers of Yi Chak Tong;

(b)  Section B to Hau Hin Cheung using his alias Hau Chak (or Tsak or Chat) Wing (侯擢榮), the then manager of Shiu Ki Tong, Hau Ping Fat (侯丙發) and Hau Chim Tseung (侯占祥), the other managers of Yi Chak Tong.

Hau Chun Cheung signed the relevant Divisions of Property as witness.

(2)  On the same day, Lots 666B and 667B were sold by Hau Hin Cheung, Hau Ping Fat and Hau Chim Tseung, each for a consideration of HK$80.  Hau Chun Cheung also signed the relevant Conveyances on Sale as witness.

(3)  Lots 666A and 667A were subsequently sold by Hau Shu Tseung on 7 March 1911.

WHAT THEAVAILABLE TONG RECORDS SHOW

20.  As will be seen later in this Judgment, much of the dispute between the parties in this action centres upon the formation and constitution of Shiu Ki Tong and, to a less significant extent, Suen Mao Tong.  However, there are very few early records of the Hau family tongs, not to mention documents showing or evidencing their establishment.

The 1918 Rent Book

21.  Other than the Crown Lease Schedules (which, as said in paragraph 15 above, suggest or tend to suggest that Shiu Ki Tong was formed before 27 June 1907) and the various memorials registered in the District Office at Tai Po, the only such record that this Court has been shown is what has at the trial become known as “the 1918 Rent Book” which is a traditional Chinese thread-bound book with a cover bearing the title “民國七年戊午仲夏謄鈔新界糧冊”.   

22.  The 1918 Rent Book is produced by the Plaintiffs, the same having been kept by the Hau Sum Cheung fong, the most senior fong of the Hau Kam Cheung branch of the Hau Clan and of which Hau Poon Sek is the present head.  According to Hau Poon Sek, the first witness as to fact for the Plaintiffs, the 1918 Rent Book was passed to him by his father, Hau Tze Lam (侯梓林), when Hau Tze Lam retired, and Hau Poon Sek took over, as a manager of various Hau family tongs including Shiu Ki Tong and Suen Mao Tong in 1969. 

23.  The title of the 1918 Rent Book suggests that it was transcribed from another document in the summer of 1918.  The identity of the person who did so can no longer be ascertained.  Since coming into being in 1918, the 1918 Rent Book had over the years been updated by additions/deletions as appropriate until times as recent as 6 March 1970 (to record the surrender of Lot 2329 in DD 91 by Shiu Ki Tong to the Government for the construction of a playground).  As will be seen later, some but not all of the subsequently introduced contents can be traced.        

24.  The 1918 Rent Book is organized into chapters, each dealing with one tong with the following information: the manager(s) of the tong, the lot and demarcation district numbers and descriptions of the lands owned by the tong and in respect of each piece of land, the name of the tenant, the rent payable by the tenant to the tong and the Crown rent payable by the tong to the Government, etc.  

25.  Of particular relevance to this action is the chapter devoted to Shiu Ki Tong and Yi Chak Tong jointly :

(1)  On the 10^th page, against the entries on Lot 1241 in DD 77 and Lot 358 in DD 84 which were (and still are) registered in the joint names of Shiu Ki Tong and Yi Chak Tong, there are these subsequently added notes to the effect that the right to collect and receive grain from these 2 lots had been given to Hau Chun Cheung, which right was subsequently inherited by his adopted grandson and the Defendants’ late father, Hau Yun Wei who should reimburse Shiu Ki Tong for half of the Crown rent payable in respect of these 2 lots in the sum of 90 cents: 

“此二處租為每年與二宅均分”

“上年此二處入漢臣鎮祥收後穀侯潤槐承繼每年為潤槐收穀要補回粮九毛為紹箕堂收”

Hau Hong Sun (侯漢臣) was an alias used by Hau Chun Cheung.  Hau Poon Sek identifies the handwriting as being that of his father, i.e. Hau Tze Lam who was a manager of Shiu Ki Tong from 11 October 1939 to 15 December 1969.  Although Hau Chi Kin, the only factual witness for the Defendants, has in paragraph 22 of his Witness Statement dated 18 July 2006 described a lot of additions/deletions/alterations (without identifying them) in the 1918 Rent Book as “suspicions”, Mr Joseph Lam, Counsel for the Defendants, has not cross-examined Hau Poon Sek on his testimony that his father wrote this particular note.

(2)  Then, on the same page, these lines (in different handwriting which Hau Poon Sek cannot identify) appear somewhat out of sequence between the entries on Lot 358 and Lot 360 in DD 84 to the effect that Lots 666 and 667 in DD 76 had been distributed to Hau Chun Cheung to collect and receive grain therefrom in the early years and had later been sold off by Hau Chun Cheung by his own hands:

“斷       76 約   劉容妖/亞七 耕鶴藪田租穀七石三二

666號 667號粮銀二元三毛一  此田先年分與侯鎮祥收谷歸侯鎮祥親手賣斷”

26.  There is also a separate and much shorter chapter on Shiu Ki Tong (the 18^th to 19^th pages).  The only point of interest is that only the 4 fongs of Hau Sum Cheung, Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung rotated on duty (輪值) annually.  In this regard, as shown in Schedule 2 to this Judgment, beginning from 11 October 1939, Shiu Ki has always had 4 managers, one from each of the 4 fongs of Hau Sum Cheung, Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung.  Each of the Plaintiffs, the current 4 managers of Shiu Ki Tong, is drawn from one of these 4 fongs. 

27.  In contrast, the chapter on Suen Mao Tong (the 2^nd to 9^th pages) show that all the 5 fongs rotated on duty annually.  In particular, Hau Chun Cheung was on duty for the years 乙丑 (1925), 庚午 (1930), 乙亥 (1935) and庚辰 (1940).  After Hau Chun Cheung’s death in 1941, Hau Yun Wei started to take Hau Chun Cheung’s place on the roster from the year 乙酉 (1945).                  

28.  Tai Chak Tong does not feature at all in the 1918 Rent Book.  This, read together with the fact that there is no record of any land holdings registered to Tai Chak Tong, suggests to me this tong had long ceased to be operative.  Indeed, Professor Baker thinks that it is possible that Tai Chak Tong was a commonly accepted name for Hau Kam Cheung’s branch of the family rather than a formally constituted tong, the first formally established tong in Hau Kam Cheung’s line probably being focused on his adopted son and heir, Hau Sek Kui.

The Shiu Ki Tong Ledger

29.  Another available record, though much later in time than the 1918 Rent Book, is a book entitled “國五十一年歲次壬寅正月初一立 紹箕堂祭祖進支數部” (“the Shiu Ki Tong Ledger”).  As the title suggests, this ledger was started on the 1^st day of the 1^st month of the lunar calendar in 1962 (i.e. 5 February 1962).

30.  The Shiu Ki Tong Ledger contains annual statements of the income and expenditure of Shiu Ki Tong from 1962 and 2005 (both years inclusive).  According to Hau Poon Sek and Hau Liu Shun Yau (侯廖順有), the wife of Hau Cheuk Pui (侯灼培) and mother of Hau Koon Kei and the second witness as to fact for the Plaintiffs, the 4 managers of Shiu Ki Tong take yearly turns in collecting grain/rent and disbursing expenses of the tong as well as in keeping the Shiu Ki Tong Ledger.  This is borne out by the manner in which the yearly income and expenditure accounts are kept. 

31.  Another point to note is that after paying all expenses, the surplus income of Shiu Ki Tong is invariably recorded as having been divided and distributed in 4 equal shares.  The 4 beneficiaries are the 4 fongs of Hau Sum Cheung, Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung as identified in the long preamble at the 1^st to 3^rd pages in the following terms:

“民國五十一年正月初一日即一九六二年二月五號四份言明每年春秋二祭拜山祭祠及知善堂貼對由每份出人一個合力料理辦妥至於知善堂油舶每份輪流添香壹年但拜山祭祠食物祭完之後照四份分派惟每年所收紹箕堂租數除祭祖納粮之後所存數銀多少照四份派此是大家願意不得異言反悔恐口無憑註部是實

茲將紹箕堂四份人名列後

侯梓林著壹份 (磐石承繼)

侯繼發 侯年焜二人著壹份

侯灼培 侯潤勝 [alias of Hau Yun Yin (侯潤賢)] 二人著壹份

侯一匡 侯平匡 煥娘 合娘四人著壹份

茲將每年納粮開列

納紹箕堂粮 : 三點零二元  (二宅堂無份  健昌兄弟亦無份)

納侯擢榮粮 : 五毛  則係九號書房一間

納紹箕堂/二宅堂 同田分租粮: 十四點六二元 每年二份給納

紹箕堂著一半派粮 : 七點三一元。二宅堂著一半派粮：七點三一元

紹箕堂半份內除侯潤槐派納粮銀九毛紹箕堂本身實納粮銀:六元四毛一仙

茲將每年給納粮之人名開列

侯潤槐給粮 : 九毛   則係納山雞乙村木發婆/林馬蘭 所耕之田
…

(每年租穀四份分派一匡一份梓林一份灼培一份廖氏一份)” (emphasis added)

The words in round parentheses, identified by Hau Poon Sek to be in Hau Tze Lam’s handwriting (which has not been questioned), were apparently added after 5 February 1962.  The name “廖氏” in the last line is understood to be a reference to Hau Liu Tim Lan (侯廖添蘭), Hau Tze Lam’s kim tiu (兼挑) wife for the Hau Lun Cheung fong.

32.  In view of the clear annual income and expenses statements in the Shiu Ki Tong Ledger, the authenticity and truth of which I accept, I reject the unsupported assertions by Hau Chi Kin (who is the only factual witness for the Defendants)

(1)  that his father had during his lifetime received a share of rent from Shiu Ki Tong every year;

(2)  that his father had told him and his brother, Hau Kin Cheung, that he had received a share of rent from Shiu Ki Tong;  

(3)  that after his father’s death in 1977, he and his brother continued to receive a share of rent from Shiu Ki Tong every year until they signed the document to be mentioned in paragraphs 40 and 41 below in April 1982.

33.  Apart from stating the beneficiaries for the record, the above quoted preamble also sets out the Crown/Government rent payable by Shiu Ki Tong :

(1)  With regard to the lands co-owned by Shiu Ki Tong and Yi Chak Tong, the net amount payable by Shiu Ki Tong was HK$6.41 after deducting 90 cents payable by Hau Yun Wei (“除侯潤槐派納粮銀九毛”).  I pause to note that the amount noted herein as being payable by Hau Yun Wei corresponds to the amount noted at the 10^th page of the 1918 Rent Book as being payable by Hau Yun Wei for Lot 1241 in DD 77 and Lot 358 in DD 84. 

(2)  As for the lands owned solely by Shiu Ki Tong, Hau Tze Lam had added the words “健昌兄弟亦無份”.  “健昌兄弟” is clearly a reference to the Defendants.

34.  The following notes in the handwriting of Hau Tze Lam in the margin space at the top of the 8^th to 11^th pages seek to explain why Shiu Ki Tong only has 4 shares to the exclusion of the Hau Chun Cheung fong :

“注意

茲將侯潤槐每年所收嘗穀開列因先入早年分開與侯鎮祥每年收穀之田故此田弍塅不關紹箕堂四份之事恐後人不清楚特此批明以免滋事侯潤槐每年給粮銀九毛是此田也茲將田地號數開列

山雞乙村林馬蘭林錦華耕溫坑壠田每年淨穀400斤200元

二宅堂著一半穀收穀200斤 100元

侯潤槐著一半穀收穀200斤 100元

77約1241號  粮 : 一元四毛一

山雞乙村大埔回林木發李粦耕大莆田一塊 每年淨穀六一 斗一百元

二宅堂著一半穀收穀3斗 五十

侯潤槐著一半穀收穀三斗 五十

84約 358號 粮 : 四毛二

76約 斷 劉容妖/亞七 共耕鶴藪田租穀 732石

666號  667號  粮 : 二元三毛一

此田先年分與侯鎮祥收穀歸侯鎮祥親手賣斷

因先年大宅堂兄弟不和鎮祥廹將大宅堂同二宅堂同田分租之田分開故森祥麟祥顯祥藉祥兄弟四人將大宅堂名下一半產業分一份與侯鎮祥兄弟四人之物業不分將大宅堂名字取銷改為紹箕堂今紹箕堂之產業鎮祥無份是此理由也今潤槐承繼鎮祥故潤槐無份”

Again, Mr Joseph Lam has not challenged Hau Poon Sek’s evidence that his father wrote this particular passage.

35.  To summarize this passage, due to an unspecified dispute between the brothers of Tai Chak Tong in the early years, Hau Chun Cheung pressed for a division of the fields jointly owned by Tai Chak Tong and Yi Chak Tong.  His 4 brothers, Hau Sum Cheung, Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung, therefore distributed one part of Tai Chak Tong’s half share to Hau Chun Cheung.  The 4 brothers kept their shares intact, cancelled the name of Tai Chak Tong and renamed it Shiu Ki Tong.  Lots 666 and 667 in DD 76, Lot 1241 in DD 77 and Lot 358 in DD 84 were specified as having been distributed to Hau Chun Cheung.  Lots 666 and 667 in DD 76 had been sold by Hau Chun Cheung.  The grain/rent collected from and the Crown rent payable for Lot 1241 in DD 77 and Lot 358 in DD 84 were to be shared by Yi Chak Tong and Hau Chun Cheung.

SUEN MAO TONG: A CONTRAST

36.  Suen Mao Tong has, throughout this action, been used for contrast.  There is no dispute that

(1)  It was established by all of the 5 fongs.  

(2)  Its members were/are all past/present male descendants from Hau Sum Cheung, Hau Lun Cheung, Hau Hin Cheung, Hau Chun Cheung and Hau Chik Cheung including the Defendants.

(3)  It has always had 5 managers, one from each of the 5 fongs.  

(4)  Its current managers are the Plaintiffs and the 2^nd Defendant (and before him, his father Hau Yun Wei).

37.  Another matter involving Suen Mao Tong is that according to Hau Poon Sek, prior to the Chung Yeung Festival in 1982, all the expenses incurred for sweeping the graves of the 20^th to 24^th generation ancestors of the Hau Clan were disbursed out of Shiu Ki Tong while Suen Mao Tong paid only for sweeping the grave of the 25^th generation ancestor, i.e. Hau Sek Kui.  At the request of the Defendants made after the signing of the document to be mentioned under the next heading in April 1982, Suen Mao Tong has since Chung Yeung Festival in 1982 shouldered the expenses for sweeping the graves of the 20^th to 24^th generation ancestors as well.  This is disputed by the Defendants. 

38.  Hau Kin Cheung, the 2^nd Defendant, as the manager of Suen Mao Tong on duty for 2005, was the last person to have custody of the ledger kept by Suen Mao Tong to record its income and expenses (which, I am given to understand, is in a form similar to the Shiu Ki Tong Ledger).  Hau Kin Cheung was supposed to pass the book to Hau Man Ming, the next manager on the roster, in 2006 but claims to have lost it.  Upon an order made upon the Plaintiffs’ application, Hau Kin Cheung made an Affirmation to such effect on 21 May 2008.  Although Hau Liu Shun Yau’s testimony of a conversation that she had had with Hau Kin Cheung in which Hau Kin Cheung told her that he had given the Suen Mao Tong income and expenses ledger to his solicitors contradicts Hau Kin Cheung’s Affirmation, the Plaintiffs have not applied to cross-examine Hau Kin Cheung on his Affirmation.  Hau Kin Cheung has not been called as a witness though he has given a witness statement which is, save for 5 paragraphs, identical to that of Hau Chi Kin and which I shall have to disregard. 

39.  However, the Court does have the Shiu Ki Tong Ledger which, consistently with Hau Poon Sek’s testimony on this point, shows that before 1982, the bulk of the expenses incurred by Shiu Ki Tong were for ancestral worshipping rites and that beginning from 1982, such expenses have ceased altogether.  Also, the significance as to which tong pays for worshipping ancestors common to the 5fongs is that it is consistent with an understanding that of the 2 tongs, Suen Mao Tong is the one owned by all 5 fongs and should disburse expenses that should be shared between all 5 fongs.    

THE 1982 MEMORANDUM

40.  On 19 April 1982, the managers of Shiu Ki Tong (who were then Hau Poon Sek, Hau Liu Tim Lan, Hau Cheuk Pui and Hau Man Ming) and the Defendants signed in duplicate a document entitled “紹箕堂分田証明書 77約第1241號及84約第358號地段 証明書” (“the 1982 Memorandum”). 

41.  The 1982 Memorandum reads as follows: 

“茲根據早年祖先侯森祥、侯麟祥、侯顯祥、侯藉祥、侯鎮祥，兄弟五人因當年不和，因此侯鎮祥迫分田地，由大宅堂於當年將祖嘗田分為五份 (而鎮祥分得嘗田三塅、土名鶴藪76約第666及667號地段由鎮祥已經賣斷給他人。尚存山鷄乙村77約第1241號及84約第358號地段每年收得田租歸侯鎮祥與二宅堂同田分租) 除上述兩塅地段外，此後由侯森祥、麟祥、顯祥、藉祥，兄弟四人不肯分開其應得田地，故將大宅堂各字取消，改為紹箕堂堂名四份司理人: 侯文明、侯灼培、侯磐石、廖添蘭，故紹箕堂名下其餘產業，侯鎮祥無份，及其承繼人侯潤槐之子健昌、志堅亦無份。是此理由也。 (同人等茲証明77約1241號及84約號第358號地段, 係侯鎮祥承繼人潤槐之子健昌、志堅所有。如政府收地或私人出賣該田所有錢銀應由該承繼人所得不關紹箕堂四名司理人及其子孫之事。如該兩段田地出賣交易。需要紹箕堂司理人簽名不得異言，恐口無憑，故立証明書兩本，皆同一樣、各執壹本為據。

77約第1241號及84約第358號地段管業權人：侯健昌/侯志堅   簽署

紹箕堂司理人同意立字：

侯磐石        廖添蘭 [by a cross and her name chop]

侯灼培        侯文明        簽署

註：    (一)  山鷄乙溫坑壠 77約1241號 粮銀1X1元 [HK$1.41]

            (二)  山鷄乙大埔田84約第358號粮銀Xll 毛 [HK$0.42]

                    侯健昌、侯志堅二人著一半田租

                    二宅堂 著一半田租

一九八二年四月十九日立

見証人侯梓林”

42.  It is common ground that

(1)  The 1982 Memorandum was drafted and written out by Hau Poon Sek.

(2)  Hau Poon Sek, Hau Cheuk Pui and the Defendants signed this document on the same occasion at Hau Cheuk Pui’s house.

(3)  Thereafter, both copies of the 1982 Memorandum were taken away by Hau Poon Sek for others to sign.

(4)  Hau Liu Tim Lan signed later in the absence of the Defendants.

(5)  Hau Tze Lam did not in fact witness any of the signatures by the parties to the 1982 Memorandum but signed purportedly as witness on a separate occasion.

(6)  One of the 2 signed copies was later returned to the Defendants for them to keep.

43.  The points of contention regarding the 1982 Memorandum between Hau Poon Sek and Hau Liu Shun Yau for the Plaintiffs on the one hand and Hau Chi Kin for the Defendants on the other hand are:

(1)  at whose instigation the 1982 Memorandum was signed, the managers (according to Hau Chi Kin) or the Defendants through an approach by their mother, Madam Kwok Ha (郭霞), to Hau Liu Shun Yau (according to Hau Liu Shun Yau); 

(2)  whether the Defendants were given sufficient time to consider the contents of the 1982 Memorandum before signing the same;

(3)  whether Hau Man Ming was present on the same occasion when Hau Poon Sek, Hau Cheuk Pui and the Defendants signed the 1982 Memorandum;

(4)  whether the content of the 1982 Memorandum is correct; and

(5)  whether the Defendants signed the 1982 Memorandum as a result of misrepresentation or undue influence by Hau Poon Sek, Hau Cheuk Pui and Hau Man Ming.

44.  I do not consider it necessary to resolve every little factual difference between the parties.  The questions set out in paragraphs 42(1) to (3) above are, to my mind, quite irrelevant, there being no dispute that the Defendants did sign the 1982 Memorandum.  Leaving aside the truth or falsity of the content of the 1982 Memorandum which is of course the very issue that I have to decide in this case, the only question the answer to which would affect the evidentiary significance and weight to be attached to the document is that arising from the Defendants’ allegation of misrepresentation and undue influence. 

45.  The allegation of misrepresentation and undue influence runs as follows :

(1)  Neither of the Defendants has any direct personal knowledge of the matters stated in the 1982 Memorandum.

(2)  As at 19 April 1982, their father had already passed away.

(3)  As at 19 April 1982, the Defendants did not have enough experience in handling or dealing with family or tong properties.

(4)  The Defendants reposed trust and confidence in Hau Poon Sek, Hau Cheuk Pui and Hau Man Ming as elders of the Hau Clan and managers of Shiu Ki Tong as advised by their father during his lifetime.

46.  Hau Poon Sek’s evidence is that he had no direct personal knowledge of the matters stated in the 1982 Memorandum.  He drafted that document from what appears in the tong records (in the forms of the 1918 Rent Book and the Shiu Ki Tong Ledger) as well as from what his father, Hau Tze Lam, had told him when he handed over to him the tong management which is consistent with the said tong records.  Nevertheless, it would have been implicit in the managers’ endorsement of the 1982 Memorandum that they believed in its content.   

47.  On the other hand, it is not suggested that either of the Defendants signed the 1982 Memorandum without having been apprised of its content.  Further, they had subsequently been given one of the 2 signed copies for their record.  They have kept their copy for many years.  They must have had abundant opportunities to review the document.  The Defendants had not, until early 1999, taken any position inconsistent with the content of the 1982 Memorandum.  

48.  Further to my rejection of his evidence as to the receipt of a share of rent by their fong from Shiu Ki Tong, I have to say I have serious reservation as to the credibility of Hau Chi Kin’s overall evidence.  He answers questions with long pauses.  His answers are often inconsistent with each other, contradictory to documents or other objective circumstances and inherently implausible.  He from time to time corrects answers previously given.  He has no or no plausible answers to many questions which are clearly pertinent.   

49.  In particular, I find it hard to believe that either of the Defendants would blindly accept anything just because Hau Poon Sek, Hau Cheuk Pui and Hau Man Ming said so or sign the 1982 Memorandum if the matters stated therein were news to them.  I believe they indorsed the 1982 Memorandum because its content accords with their own understanding of the position of the Hau Chun Cheung fong vis-à-vis Shiu Ki Tong which is that the Hau Chun Cheung fong does not belong to Shiu Ki Tong. 

50.  Any or any claimed understanding to the contrary would be incredible in the circumstances.  The 1^st and 2^nd Defendants were respectively 25 and 28 years old as at the date of the 1982 Memorandum.  The 2^nd Defendant had for some years since Hau Yun Wai’s death took over his position as a manager of Suen Mao Tong representing the Hau Chun Cheung fong, acting alongside 4 managers from the other fongs of the Hau Sek Kui’s branch of the family.  Hun Yun Wai had, to the knowledge of the Defendants, inherited that position from his adoptive grandfather, Hau Chun Cheung.  The male descendants of the Hau Chun Cheung fong have always been receiving a ¹/_5th share of Suen Mao Tong’s surplus income.  In contrast, I have already held in paragraph 32 above that Hau Yun Wai had not during his lifetime received any distribution from Shiu Ki Tong, nor have the Defendants after his death.  Neither Hau Yun Wai nor either of the Defendants had/have been a manager of Shiu Ki Tong.  The lack of participation by Hau Yun Wai and the Defendants in the management and income of Shiu Ki Tong is particularly acute when contrasted with the situation vis-à-vis Suen Mao Tong.  It goes without saying that I also reject Hau Chi Kin’s evidence that Hau Yun Wai had during his lifetime told him and his brother that they also had a share in Shiu Ki Tong.  If Hau Yun Wai had so told the Defendants, one would have expected them to steadfastly refuse to sign the 1982 Memorandum.  

51.  For the sake of completeness, the Defendants also seek to wriggle out of the 1982 Memorandum by pleading want of consideration.  As I see it, the 1982 Memorandum merely records a past transaction and does not purport to effect any new contract.  The concept of consideration has no application.

TRANSACTIONS GIVING RISE TO THE PRESENT DISPUTE

Resumption of portion of Lot 1649 in DD 91 by the Government

52.  Against the aforesaid background, on 6 November 1998, the District Lands Office North (“DLON”) served on the Plaintiffs as managers of Shiu Ki Tong and the managers of Yi Chak Tong Government Notice No.5080 dated 16 October 1998 to the effect that a portion measuring 687.9 square metres of Lot 1649 in DD 91, co-owned by Shiu Ki Tong and Yi Chak Tong, would be resumed by the Government.  By DLON’s further letter dated 23 February 1999, the Government offered the two tongs HK$2,452,536 by way of compensation.   Shiu Ki Tong’s share was HK$1,226,268 (“the Compensation”).  Insofar as Shiu Ki Tong is concerned, complications had however arisen.

53.  Firstly, DLON’s said letters were addressed also to Hau Chak Wing (侯擢榮), an alias of Hau Hin Cheung who was the sole manager of Shiu Ki Tong until his death in 1910.  They were so addressed because the records kept by the Land Registry in respect of Lot 1649 in DD 91 still showed Hau Chak Wing as a manager of Shiu Ki Tong.  Apparently, the Appointment of Trustee dated 10 March 1911 (Memorial No.16296), whereby Hau Ping Hong (侯炳匡) using his alias Hau Wun Man (侯煥明) and Hau Ping Hong (侯平匡) using his alias Hau Wun Yiu (侯煥堯) were appointed as managers of Shiu Ki Tong in replacement of Hau Chak Wing who had since deceased, omitted to identify the lands affected by the death of Hau Chak Wing.  DLON regarded the continued registration of Hau Chak Wing as a manager of Shiu Ki Tong to be a matter going to the Plaintiffs’ title to, inter alia, Lot 1649 in DD 91 and refused to release the Compensation to the Plaintiffs.  The title defect so perceived by DLNO was eventually removed by the Plaintiffs applying to this Court and obtaining in HCMP 2613/2002 a declaration that the Plaintiffs were the only duly appointed current managers of Shiu Ki Tong on 19 December 2002.

54.  Secondly, the Defendants had in the meantime since 14 January 1999 asserted to DLON their membership of Shiu Ki Tong, thereby causing the Government to continue to withhold the Compensation despite the said declaration in favour of the Plaintiffs.  To cut a long story short, the Plaintiffs did not receive the Compensation until 23 July 2004 and then only after the Plaintiffs had commenced HCAL 21/2004 against the Director of Lands.   

55.  It is unnecessary for me to refer to all of the Defendants’ letters to DLON.  What I note with particular interest are the following :

(1)  The Defendants wrote the following in the first paragraph of their letter dated 14 January 1999:

“跟據貴處記錄侯紹箕堂及侯二宅堂，共同擁有上述土地,有關侯擇榮司理，其於1910年去世，本人侯健昌及侯志堅等人是其後裔，應擁有侯擇榮司理侯紹箕堂五份一之業權，同等享有五份一收入之權益。”

(2)  The Defendants elaborated in the third paragraph of their letter dated 25 October 2003 that:

“本人兄弟是侯擢榮祖長子嫡孫(見族譜)，世代應享有侯擢榮祖名下擁有任何產業，因侯鎮祥祖後無嗣，族裔關係家父過繼；承繼香燈，不代表放棄侯擢榮祖任何名下產業及血緣，本人曾多次去信貴處查證，她們竟然可放下尊嚴，重韜覆轍其祖先行為，侵吞本人兄弟祖產。…”

56.  That is to say, the Defendants initially claimed an interest in Shiu Ki Tong by contending that :

(1)  Their father, Hau Yun Wai, was the eldest natural son of Hau Kin Chung, the only son of Hau Chak Wing (Hau Hin Cheung).

(2)  The adoption of Hau Yun Wai to the line of Hau Chun Cheung did not result in Hau Yun Wai giving up his blood connection with Hau Chak Wing (Hau Hin Cheung) and the properties under his name.

(3)  The Defendants were therefore still the natural great grandsons of Hau Hin Cheung and as such entitled to share in that fong’s share in Shiu Ki Tong 

57.  This line of argument is clearly bad and is no longer pursued by the Defendants.  Indeed, it is the Defendants’ own pleaded case in paragraph 34(c) of their Re-amended Defence and Counterclaim that under Chinese law and custom, upon adoption, the adopted son would cease to be the heir/successor of his natural father but would become the heir/successor of his adoptive father. 

Sale of Lots 882 & 994 in DD 95

58.  Next, by an Agreement for Sale and Purchase dated 22 August 2003 (“the Agreement”), the Plaintiffs agreed on behalf of Shiu Ki Tong to sell Lots 882 and 994 in DD 95 for the price of HK$1,916,640.  Completion was to take place within 21 days from the Plaintiffs giving the purchaser written notice of consent to the sale by the District Officer North (“DON”) under the Ordinance.  The sale and purchase was conditional upon and subject to, and the Plaintiffs were required to use their best endeavours to obtain, DON’s consent on or before 30 June 2004, failing which the purchaser could opt either to extend the completion date for 12 months or to rescind the Agreement.  If the consent of the DON should be not forthcoming on or before the extended date of completion, either party should have the option to rescind the Agreement.

59.  As it turned out, DON withheld his consent because the Defendants refused to withdraw their claim of membership of Shiu Ki Tong. 

60.  The Defendants took such position notwithstanding the fact that on 4 September 2003, the 1^st Defendant, in his capacity as the Village Representative of Ping Kong Village (a position which he occupied from 1 April 1999 to 31 March 2007), attested the signing of a document entitled “祖/堂物業出售、轉讓同意書” (which was required in support of the Plaintiffs’ application to DON) by all members of Shiu Ki Tong which included neither of the Defendants.  The Plaintiffs, quite understandably, place reliance on the 1^st Defendant’s attestation of this document.  However, I doubt the usefulness of such fact to the Plaintiffs’ case given that by the date of this document, the Defendants had been and were still asserting membership of Shiu Ki Tong.  On this, I am inclined to look on favourably the 1^st Defendant’s explanation that he thought it was his duty as the Village Representative to be a witness.   

61.  The Plaintiffs issued the Writ of Summons herein on 20 September 2004.

62.  The time for the Plaintiffs to obtain DON’s consent was repeatedly extended up to 30 June 2007.

THE ISSUE

63.  As said at the beginning of this Judgment, the issue arising for determination in this action is whether the Defendants being the male descendants of Hau Chun Cheung are members of Shiu Ki Tong.

64.  Before I turn to the pleadings for the parties’ cases, it is clear to me that neither the Plaintiffs nor the Defendants appreciated at the pleading stage the fact that Hau Sum Cheung had predeceased Hau Sek Kui and therefore could not have himself partaken in either the fan ka in 1895 or the subsequent establishment of Shiu Ki Tong or Suen Mao Tong although his fong was represented in these events by his adopted son and heir, Hau Ping Hong.  I shall therefore read all references to Hau Sum Cheung in the parties’ pleadings (which I shall broadly summarise under the next 2 sub-headings) as references to Hau Ping Hong, the head of the Hau Sum Cheung fong at the material times.

Plaintiffs’ pleaded case

65.  In seeking a declaration that the Defendants are not and were never members of Shiu Ki Tong, it is the Plaintiffs’ primary case that Hau Chun Cheung was never a member of Shiu Ki Tong, the same having been founded by Hau Sum Cheung (Hau Ping Hong), Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung with properties belonging only to them from a fan ka from which Hau Chun Cheung also received a share. 

66.  Alternatively, if Shiu Ki Tong were founded by all 5 sons of Hau Sek Kui, the Plaintiffs say that shortly after its establishment, at Hau Chun Cheung’s request, there was a “full and final equal division” of the property of Shiu Ki Tong among Hau Sum Cheung (Hau Ping Hong), Hau Lun Cheung, Hau Hin Cheung, Hau Chun Cheung and Hau Chik Cheung.  In effect, Shiu Ki Tong ceased upon such division of its property but re-commenced in the same name with the same members as before except Hau Chun Cheung and his male descendants. 

67.  And, until almost half way through the trial, the Plaintiffs identified a half share in each of Lots 666 and 667 in DD 76, Lot 1241 in DD 77 and Lot 358 in DD 84 to be all the property that had been distributed to Hau Chun Cheung either in the fan ka under the Plaintiffs’ primary case or in the division of tong property under the Plaintiffs’ alternative case.  They further say that of these 4 plots of land, the managers of Shiu Ki Tong and Yi Chak Tong sold Shiu Ki Tong=s half shares in Lots 666 and 667 in DD 76 and gave the proceeds to Hau Chun Cheung in August 1909.  As for Lot 1241 in DD 77 and Lot 358 in DD 84, at Hau Chun Cheung’s request, Shiu Ki Tong retained registered ownership of a half share in each of such lands, but Hau Chun Cheung was thereafter responsible for paying Crown Rent on them and receiving the rental income from them.

68.  There are problems.

69.  First, the Plaintiffs proceeded under the impression that Lots 666 and 667 in DD 76, Lot 1241 in DD 77 and Lot 358 in DD 84 which had a combined area of 1.38 acres represented a ¹/_5th portion of the total land holding of Shiu Ki Tong and Yi Chak Tong.  As shown in paragraph 9 of Hau Poon Sek’s Witness Statement dated 21 April 2006, the Plaintiffs arrived at this ¹/_5th ratio on the premises that all the lands in which Shiu Ki Tong was interested were owned jointly with Yi Chak Tong and that there were only 31 lots of such land with a total area of just 6.95 acres.  This is clearly wrong.  As stated in paragraph 15(1) above, in fact, Shiu Ki Tong co-owned 53 lots (13.34 acres) with Yi Chak Tong.  In addition, Shiu Ki Tong also solely held 44 lots (11.84 acres). 

70.  The Plaintiffs have in the course of the trial re-re-re-amended the Statement of Claim to the effect that the property that had been distributed to Hau Chun Cheung either in the fan ka under the Plaintiffs’ primary case or in the division of tong property under the Plaintiffs’ alternative case included Lots 666 and 667 in DD 76, Lot 1241 in DD 77 and Lot 358 in DD 84.  What other property was or might have been distributed to Hau Chun Cheung is admittedly unclear.

71.  Second, the fan ka referred to by the Plaintiffs must be that evidenced by the 1895 fan ka Document which has been accepted as authentic by the Plaintiffs.  The 1895 fan ka Document records a division among all the 5 fongs at the instigation of Hau Sek Kui’s widow, and not a division between Hau Chun Cheung on the one hand and the other 4 fongs on the other.  The notion that after a distribution to each of the 5 fongs, Hau Ping Hong, Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung then put everything distributed to them back into common ownership by their 4 fongs seems to me to defeat the very idea and purpose of the fan ka. 

72.  The Plaintiff’s primary case is also somewhat difficult to reconcile with the fact that Hau Ping Hong, Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung each had a substantial land holding under his personal name.  As said in paragraph 14 above, although it is now impossible to trace the lands that were transmitted from Hau Sek Kui to the 5 fongs following the division of his ka estate in 1895, I consider it reasonable to think that at least some of the lands that were registered to Hau Ping Hong, Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung personally came from Hau Sek Kui.

73.  Second, the only real property divided by way of fan ka in 1895 was the estate personal to the household of Hau Sek Kui.  Lots 666 and 667 in DD 76, Lot 1241 in DD 77 and Lot 358 in DD 84 could not have been part of such estate as they had been registered to the joint names of Shiu Ki Tong and Yi Chak Tong.  Although there was a gap of about 12 years between such registration and the fan ka, I have seen no evidence which suggests that the 2 tongs had or might have jointly acquired any land after 1895.  In the absence of such evidence, it seems to me more logical on a balance of probabilities to assume that these 4 pieces of land were among the sheung yip coming down from Tun Yan Tong to Tai Chak and Yi Chak, the third category of property dealt with in the fan ka.

74.  As for the land holding registered to the sole name of Shiu Ki Tong, I am attracted by Mr Lam’s proposition that such lands were the lands from which sheung kuk (the second category of property dealt with in the fan ka) was to be derived and shared by the 5 fongs in turn. 

75.  The Plaintiffs’ impromptu speculation, somewhat supported by their expert on Chinese law and custom, Professor Li Guilin, that the 4 fongs of Hau Sum Cheung, Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung had purchased lands from 1895 to 1907 which they then injected into Shiu Ki Tong appears to me to be less plausible.  I do not agree with Mr Kenneth Lee and Mrs Dora Chan, Counsel for the Plaintiffs, that there would otherwise be no explanation why Hau Chun Cheung who was entitled to share in the sheung kuk had not been given any land owned by Shiu Ki Tong solely and from which sheung kuk was derived.  I think the answer is that we simply do not now know the entity of the property that had been distributed to Hau Chun Cheung.

76.  Hence, on balance, it seems to me that Shiu Ki Tong was a pool of the 4 shares in the ka estate distributed to the 4 fongs of Hau Sum Cheung, Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung by way of the fan ka in 1895.

Defendants’ case

77.  On the other hand, the Defendants contend that :

(1)  Either prior to 1894 or alternatively in 1895, as a result of a resolution of the family elders (which was binding upon members of each of the 5 fongs), the landed properties owned by Tai Chak Tong became or were made sheung tin (嘗田) (ancestral field).

(2)  Shiu Ki Tong and Suen Mao Tong were formed in 1895 under Chinese law and custom by members of each of the 5 fongs solely for the purpose of managing the landed properties of Tai Chak Tong.

(3)  Once a family tong has been founded, the lineal descendants of the founder would upon their births, automatically become members of the tong and upon their deaths automatically cease to be members of the tong.  Neither a member nor the family to which he belongs could, by his voluntary act or that of others, cease to be members of the tong.

(4)  Sheung tin being ancestral land owned by a tso or tong cannot be divided amongst its members but should be preserved for ancestral worship.

(5)  The partition of Lots 666 and 667 in DD 76 on 25 August 1909 did not constitute division of tong property among its members but was a necessary step in the sale of parts of these lands by Shiu Ki Tong and Yi Chak Tong.  The proceeds of sale were received by the 2 tongs and not by Hau Chun Cheung or his fong.

78.  The Defendants counterclaim for declarations that they are members of Tai Chak Tong and Shiu Ki Tong. 

79.  I do not propose to make any declaration in respect of Tai Chak Tong.  First, any such declaration would be academic.  It is not disputed that Tai Chak Tong, if it had been formally constituted, would embrace all male descendants from Hau Kam Cheung including the Defendants.  There is no record of any property registered to this tong.  It had by all accounts long ceased operation.  Second, a declaration of the Defendants’ membership of Tai Chak Tong would not in any way assist in the determination of the issue regarding the membership of Shiu Ki Tong.  I do not see the latter tong to be a mere sub-set of the former tong minus Hau Sek Kui, without assuming the correctness of the Defendants’ case on the formation of Shiu Ki Tong.  

80.  The Defendants have since abandoned the propositions as to Chinese customary law mentioned in paragraphs 77(3) and (4) above upon Professor Baker’s advice that :   

(1)  Just as a member of a family is entitled to press for family division, he knows of no law which would prevent a member of a tso tong to ask for its division.  If all the other members of the tso tong agree to his request, it can be acted upon.

(2)  Since a descent line is an unbroken chain in which generation is linked to generation, the withdrawal of a member from a tso tong would inevitably result in the breaking of the chain and the alienation of any rights in the tso tong on the part of that member=s descendants.  If a member was able to withdraw from a tso tong in his own right, he could do so on behalf of his descendants too.

(3)  Since the dissolution of tso tong and division of its land were not intended to occur, there was no proper framework, either legal or customary, for implementing them save that doing so has involved obtaining the consent of all members. 

(4)  Although all tso tong landed properties were essentially sheung tin or chai tin (祭田) (ritual land) and were like tso tong meant to be permanent and inalienable, there is no law to prohibit disposal provided that there is consensus on the part of all members to the sale. 

BURDEN OF PROOF

81.  The Plaintiffs seek to put the burden on the Defendants to prove that they are or were members of Shiu Ki Tong.  In support, Mr Lee and Mrs Chan quote from Phipson on Evidence, 16^th Edition (2005), p.127, paragraph 6-06:

“So far as the persuasive burden is concerned, the burden of proof lies upon the party who substantially asserts the affirmative of the issue.  If, when all the evidence is adduced by the parties, the party who has this burden has not discharged it, the decision must be against him.  It is an ancient rule founded on considerations of good sense and should not be departed from without strong reasons.

This rule is adopted principally because it is just that he who invokes the aid of the law should be the first to prove his case; and partly because, in the nature of things, a negative is more difficult to establish than an affirmative.  The burden of proof is fixed at the beginning of the trial by the state of the pleadings, and it is settled as a question of law, remaining unchanged throughout the trial exactly where the pleadings place it, and never shifting.”

82.  With respect, I disagree.  I have difficulty with the notion that the Plaintiffs are entitled to the declaration sought unless the Defendants prove that they are not so entitled, which is in effect what is being suggested for the Plaintiffs.  Onus is always on a person who asserts a proposition or fact which is not self-evident: Robins v National Trust Company Limited [1927] AC 515 (PC) at 520.  The proposition that the Defendants are not and were never members of Shiu Ki Tong, disputed by the Defendants, is not self-evident to me on pleading.   

83.  The above passage cited by Mr Lee and Mrs Chan goes on to read:  

“In deciding which party asserts the affirmative, regard must be had to the substance of the issue and not merely to its grammatical form; the latter the pleader can frequently vary at will.  Moreover, a negative allegation must not be confused with the mere traverse of an affirmative one.  The true meaning of the rule is that where a given allegation, whether affirmative or negative, forms an essential part of a party’s case, the proof of such allegation rests on him.  An alternative test, in this connection, is to strike out of the record the particular allegation in question, the onus lying upon the party who would fail if such a course were pursued.”

In my opinion, the Plaintiffs cannot hide behind the negative wording in which they phrase the declaration that they are asking for.  It could easily be re-phrased into affirmative terms, e.g. that Shiu Ki Tong is comprised of Hau Sum Cheung (Hau Ping Hong), Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung and their male descendants only.

84.  Seldon v Davidson [1968] 1 WLR 1083, cited by Mr Lee and Mrs Chan, is distinguishable.  As explained by the Court of Appeal, the payment of money by the plaintiff to the defendant, admitted by the defendant, prima facie imported an obligation to repay it and it was for the defendant to prove the facts which he alleged showed that it was not repayable.       

85.  Tang Yau Yi Tong v Tang Mou Shau Tso [1995] 2 HKC 245, also cited by Mr Lee and Mrs Chan, is likewise distinguishable in that the defendant tso in that case asserted beneficial ownership of a ¹/_3rd share in land registered in the name of the plaintiff tong.  The burden always falls upon the party asserting that “the equitable right is not at home with the legal title”: Crisp v Mullings [1976] 2 EGLR 103 (CA), at 103 F-G.

86.  In any event, it is unnecessary to resort to the burden of proof in this case.  Onus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it cannot say that either version of events contended for by the parties satisfies the balance of probabilities.  Then, the onus will determine the matter.  But if the tribunal can, after hearing and weighing the evidence, come to a determinative conclusion, the onus has nothing to do with it and need not be further considered.  See Robins v National Trust Company Limited, op. cit., at 520. 

87.  In my view, this is a case where the evidence, properly considered on a balance of probabilities, does lead to a determinative conclusion. 

ANALYSIS

88.  In so saying, I have not overlooked the many questions raised (not unreasonably) by Mr Lam for the Defendants:

(1)  What exactly did Hau Chun Cheung and his brothers quarrel about to cause Hau Chun Cheung to demand a division of common ancestral property?

(2)  Why didn’t Hau Chun Cheung make a similar demand in respect of the common ancestral property under Suen Mao Tong?

(3)  What exactly was Hau Chun Cheung given by way of a “full and final equal division”?

(4)  Given that Hau Chun Cheung did have a substantial land holding registered to his personal name, what reason(s) could there be for him to want to have his share in Lot 1241 in DD 77 and Lot 358 in DD 84 remained under the name of Shiu Ki Tong to hold for him?

(5)  Why was Hau Chun Cheung given Shiu Ki Tong’s share in lands co-owned with Yi Chak Tong and not lands under the sole name of Shiu Ki Tong which would have been simpler and tidier?

(6)  Why is there no reference to the alleged brotherly dispute in the 1918 Rent Book which is an earlier record than the Shiu Ki Tong Ledger?

(7)  Why were the various passages/notes relied upon by the Plaintiffs (except the preamble of the Shiu Ki Tong Ledger) not written into the 1918 Rent Book and the Shiu Ki Tong Ledger when they were first compiled but had to be added later?

(8)  If Lots 666B and 667B in DD 76 were meant to be distributed to Hau Chun Cheung, why were these lots, after they had been partitioned, assigned also to Hau Ping Fat and Hau Chim Tseung who were 2 of the 3 managers of Yi Chak Tong?

I fully bear in mind that the evidence available does not provide answers to these questions beyond the realm of speculation. 

89.  Nor have I lost sight of the lack of direct evidence on the formation and constitution of Shiu Ki Tong.  The Plaintiffs and the surviving undisputed members of Shiu Ki Tong were all borne after the material times.  Hau Poon Sek admittedly gives evidence from what appears from the available records of Shiu Ki Tong (i.e. the 1918 Rent Book and the Shiu Ki Tong Ledger) and what his father, Hau Tze Lam, had passed on to him.  Hau Tze Lam who wrote some of the relevant passages/notes in the 1918 Rent Book and the Shiu Ki Tong Ledger was himself not born until 1909 and could not have had any personal knowledge of the events in question.  His additions to the 1918 Rent Book and the Shiu Ki Tong Ledger must, in turn, have been based upon what he had been told. 

90.  However, the gaps in the evidence must be put in the proper perspective which is that the events with which we are concerned occurred, if they did, a century ago.  The loss of documentary records and material witnesses after such a long time is not as startling as it would have been if we had been concerned with more recent happenings.         

91.  The Court is not required to be satisfied beyond reasonable doubt.  Rather it views what is missing against what is available on a balance of probabilities. 

92.  The relevant passages/notes in the 1918 Rent Book and the Shiu Ki Tong Ledger are not recent fabrications.  Some of them were written by Hau Tze Lam.  Hau Tze Lam was manager from October 1939 to December 1969.  It is reasonable to assume that the passages/notes in handwriting that Hau Poon Sek cannot identify were put in by Hau Tze Lam’s predecessor(s).  I can think of no or no credible reason that would cause Hau Tze Lam or his predecessors to put in the family tong records information that they did not believe to be true and correct.

93.  More importantly, the general veracity of these passages/notes is reinforced by the available objective and undisputed or indisputable evidence as to the sharing of the management and income and expenses of Shiu Ki Tong:

(1)  I have already found that Hun Yun Wai and the Defendants never shared/share in the income and expenses of Shiu Ki Tong (except a half share in the Crown rent payable in respect of Lot 1421 in DD 77 and Lot 358 in DD 84). 

(2)  I have also observed that no one from the Hau Chun Cheung fong has ever been appointed a manager of Shiu Ki Tong.  When Shiu Ki Tong first appointed 4 managers on 11 October 1939, there was no reason why Hau Chun Cheung should be excluded if he were really interested in Shiu Ki Tong.  As noted above, he had been a manager of Suen Mao Tong and assumed yearly roster duty right up to 1940, a year before he died. Hau Chi Kin gives evidence that his father had during his lifetime informed him and his brother of the Hau family tongs of which they were members and that Shiu Ki Tong was mentioned by father as one such tong.  Hau Chi Kin is however unable to explain why no manager has been appointed to Shiu Ki Tong from their fong. 

Such evidence, especially when contrasted to the opposition situation in respect of Suen Mao Tong, is consistent with and admits only the conclusion that the Hau Chun Cheung fong has nothing to do with Shiu Ki Tong.

94.  In Luxton v Vines (1952) 85 CLR 352, Dixon, Fullagar and Kitto JJ cited at 358 the following passage from the judgment of the High Court of Australia in Bradshaw v McEwans Pty Ltd (1951) unreported :

“In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference : they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture : see per Lord Robson, Richard Evans & Co. Ltd. v. Ashley (2).  But if the circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf. Lord Loreburn (3)”

In my view, the circumstances proved in the evidence reasonably and definitely favour, on a balance of probabilities and not as a mere matter of conjecture or surmise, the conclusion that the Hau Chun Cheung fong to which the Defendants belong does not belong to Shiu Ki Tong.    

CONCLUSION 

95.  For the foregoing reasons, I declare that the Defendants are not, and were never, members or beneficiaries of Shiu Ki Tong. 

96.  The Plaintiffs ask for and I award them nominal damages (in the sum of HK$10) for the loss of the bargain mentioned in paragraph 58 above.

97.  I also make an order nisi that the Defendants should pay the Plaintiffs the costs of this action, including all costs previously reserved (if any) to be taxed if not agreed.   

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