Tang Yau Yi Tong and Another v. Tang Mou Shau Tso and Others

1993, No.A3070

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H E A D N O T E

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Chinese Customary Law - Land in New Territories held in a Tong - Members of a Tso contended that one of the founders of the Tong purchased the land with money belonging to the Tso and the Tso is entitled to 1/3 share in the Tong land

HELD :

1. The beneficiaries of a Tong are confined to the direct male descendants of the founder of the Tong and members of the Tso who are not the direct descendants cannot be beneficiaries of the Tong.

2. The Tso has failed to prove that it had contributed towards the purchase of the land.

1993, No. A3070

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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Background of the case

1. This case concerns a piece of property in Tai Po, New Territories known as Lot Nos.950, 1103, 1104, 1123 and 1124 in DD No.6 ("the property"). The property is registered in the name of the first named Plaintiff Tang Yau Yi Tong (鄧友于堂) ("The Tong"). The Tong is a clan, family or Tong within the meaning of s.15 of the New Territories Ordinance. The second named Plaintiff Mr Tang Tsan Wa (鄧鑽華) is the current manager of the Tong.

2. According to the public record, the history as to the acquisition of the property is as follows. Lot No.950 was purchased by Tang Wai Tong (鄧煒堂) alias Tang Shiu Ki (鄧紹基) and Tang Kei Mong (鄧屺望) by public auction on 18th August 1926 for the sum of $324. Lots No.1103 and 1104 were purchased by Tang Fan Shan (鄧勳臣), Tang Wai Tong and Tang Kei Mong by public auction on 23rd October 1929. The price for Lot 1103 was $92 and the price for Lot 1104 was $51. Lots No.1123 and 1124 were purchased by Tang Fan Shan, Tang Wai Tong and Tang Kei Mong on 22nd October 1930 for the sum of $21.

3. On 24th April 1940 Tang Fan Shan, Tang Wai Tong and Tang Kei Mong assigned the property to the Tong as a gift. According to a list of members (p.21 of Bundle B) submitted by Tang Tsan Wa, the current members of the Tong consist of the following :

Tang Chung Yeung, (鄧宗陽)   ] and Tang Chuen Kei (鄧存琦) ]		1/3rd share
Tang Kei Mong		1/3rd share
Tang Tsan Wa	1/7th share]	1/3rd share
Tang Kam Cheung (鄧錦祥)	1/7th share]
Tang Tung Wah (鄧棟華)	1/7th share]
Tang Min Wah (鄧冕華)	1/7th share]
Tang Chu Wah (鄧柱華)	1/7th share]
Tang Ping Wah (鄧炳華)	1/7th share]
Tang Cho Tin (鄧袓田)   ]	1/7th share]
Tang Yuk Choi (鄧沃才) ]

The list was attached to a letter dated 1st October 1984 from the Tai Po District Office to Wong, Hui and Souza, Solicitors.

4. Tang Chung Yeung and Tang Chuen Kei are the two sons of Tang Wai Tong. Tang Kei Mong was one of the purchasers of the property. The remaining eight Tangs are the male descendants of Tang Fan Shan. Tang Tsan Wa is the son of Tang Fan Shan.

5. In 1991 the Tong intended to sell the property to a developer and by application dated 3rd October 1991, Tang Tsan Wa applied to the Tai Po District Office for approval for the sale of property. The members of the Tong also by letter dated 3rd October 1991 applied to the District Land Office for the sale of the property (see pp.25 and 26 of the Bundle).

6. Members of the first named defendant Tang Mou Shau Tso (鄧茂秀袓) ("the Tso") objected to the sale. They contended that members of the Tso is entitled to 1/3 share of the property (see p.40 b and c of Bundle B).

7. The Plaintiffs denied that the Defendants have any interest in the property and contended that by reason of the objection from the Defendants, the District Land Office has refused to allow the Plaintiffs to sell the property until the dispute created by the Defendants have been resolved. In this action, the Plaintiffs are seeking, inter alia, declarations that they are entitled to dispose of the property without the consent of the Defendants and that the Defendants are to indemnify them for loss and damage suffered by them as a result of the wrongful objection of the Defendants.

The Defendants' case

8. The Tso is a clan within the meaning of s.15 of the New Territories Ordinance and has been in existence for over 150 years. The remaining Defendants are all members of the Tso and claimed their interest through the Tso. The Tso is named after Tang Mou Shau, a villager in Shui Tau Tsuen (水頭村), Kam Tin (錦田). It consists of approximately 100 descendants of Tang Mou Shau.

9. Tang Wai Tong who was one of the purchasers of the property was the manager of the Tang Mou Shau Tso.

10. In 1928 the Tong was established, comprising of three clans of three different Tang families. The three clans were represented by,

a) Tang Wai Tong acting as the manager of the Tso;

b) Tang Fan Shan acting as the head representative of the Tang clan of Tai Po Tau Village (大埔頭村) in Tai Po; and

c) Tang Kei Mong acting as the representative of the Tang clan in Dong Guan (東莞), China.

11. In 1928 Tang Wai Tong acting as the manager and on behalf of the Tso agreed with Tang Fan Shan and Tang Kei Mong to make joint contribution to purchase the property and to build on it an ancestral hall which was for the use of all the three parties. Pursuant to the agreement, the property were acquired in their joint names and an ancestral hall was erected on the property. The account records of the Tso indicated that a sum of $5,231 was contributed by the Tso in 1928 to the cost of acquiring the building and the ancestral hall and a further sum of $938 was contributed in 1940 towards repairs of the ancestral hall. The ancestral hall was situated on Lot No.950.

12. Since 1928, the property and the ancestral hall had been jointly occupied and used by the three parties and their respective members. From 1928 until the collapse of the ancestral hall in the World War II, three separate ancestral shrines or tablets were set up and maintained for worship by members of the three respective parties.

13. Due to the old age of Tang Wai Tong , Tang Kei Mong and Tang Fan Shan, the property was transferred to the Tong on 24th April 1940 without consideration. The Defendants' case was that the Tong held the property upon trust for the three parties in equal shares.

14. Tang Kei Mong had passed away and is survived by his son Tang Ping Tsang.

15. Tang Wai Tong had also passed away and is survived by five sons. Two of the sons, namely Tang Chung Yeung and Tang Chuen Kei had by a written declaration dated 24th November 1965 admitted that the beneficial interest of their father Tang Wai Tong in the property held by the Tong belonged to the Tso as clan property.

16. The Tang family has a long established history in the New Territories. The Defendants could trace their first generation ancestor to someone called Tang Yuen Leong (鄧元亮) who was the son of a government official in the Guandong province. According to DW3 Tang Ying Wah, his research of the ancestral records show that Tang Yuen Leong had a son call Tang Chi Ming (鄧自明) who in turn had four sons. Tang Kei Mong, Tang Wai Tong and Tang Fan Shan were the descendants of three of the four sons of Tang Chi Ming. Tang Mou Shau was the 22nd generation ancestor of the Tang clan and Tang Wai Tong was a descendant of Tang Mou Shau. In the ancestral hall of the Tang clan known as the Chung Yiu Kuen Tang Kung Tze (鎮銳鋗鄧公祠) situate at Shui Tau Village, the ancestral plaque of Tang Yuen Leong was placed on the first tier while the tablet of Tang Mou Shau was placed on the fourth tier. In Cheung Chun Yuen (長春園) another ancestral hall in the Shui Tau Village, the tablet of Tang Mou Shau was placed in the central middle position of the second tier. According to Tang Ying Wah, this position is the highest status of all the tablets in this hall. The position indicated that Tang Mou Shau was the head of this lineage and the founder of Cheung Chun Yuen. On the first tier was placed the big tablet of all the ancestors of the Tang family.

Evidence of the Defendants

17. At the commencement of the hearing, I ruled that the Defendants were required to open the case because they carried the burden of establishing their 1/3rd beneficial interest in the property. The Defendants called five witnesses, namely DW1 Tang Wai Fuk who was born in 1932; DW2 Tang Wing Tung who was born in 1964; DW3 Tang Ying Wah who was born in 1956; DW4 Tang Yuk Kwan who is 72 years of age and DW5 Tang Sit Woon who was born in 1924. While they, other than DW4, have given a history of the matter and the background of this case, none was able to give direct evidence as to the circumstances in which the property was acquired.

18. DW1 Tang Wai Fook was present at a meeting held on 24th November 1965. The meeting was convened by Tang Lok Chi (鄧樂之) alias Tang Ching Yin (鄧晶彥), a manager of the Tso. He convened the meeting because he wished to resign as manager due to old age. During the meeting Tang Lok Chi said that Tang Wai Tong, the manager of the Tso had caused money to be paid for acquiring land in Tai Po and building an ancestral hall on it. Two of the sons of Tang Wai Tong, namely Tang Chung Yeung and Tang Chuen Kei were present at the meeting. Tang Lok Chi suggested to the two sons that they would "act as the administrator of the estate upon which the ancestral hall was built". Tang Chung Yeung agreed to be the administrator. Tang Lok Chi then asked him to confirm in writing for the Tso so that there would be a record kept by all the descendants. That was the circumstances in which the two sons signed the declaration in 1965.

19. DW2 Tang Wing Tung and DW3 Tang Ying Wah said that Tang Mou Shan used aliases such as Cheung Chun (長春) or Tsung Shan (松山). Thus, Tang Mou Shan Tso, Cheung Chun Yuen and Tang Tsung Shan Tso (鄧松山袓) were one entity only.

20. DW4 Tang Yuk Kwan who was the son of Tang Wai Tong claimed that when he was 17 years of age he had accompanied his father to the ancestral hall for ancestral worship. Tang Chung Yeung and Tang Chuen Kei are his brothers. Tang Chung Yeung had written to the Plaintiffs that 1/3 of the property belonged to Tang Luk Woo Tong which is one of the tongs set up by his father Tang Wai Tong. Tang Yuk Kwan, however, maintained that this allegation is wrong and the 1/3rd share should belong to the Defendants.

21. DW5 Tang Sit Woon, who is now over 69 years of age, said that he was present in the opening of the ancestral hall in 1930. He had paid regular visits to the ancestral hall even after the World War II. At the front entrance of the ancestral hall there was once a large plaque mark "Tang Yau Yi Tong", there were a number of smaller plaques inscribed with the poems written by Tang Wai Tong. Inside the hall, wooden name plaques of the ancestors of the three Tang clans were placed for ancestral worship by the Tang descendants. He could not, however, recall who was the oldest ancestor whose tablet was placed in the ancestral hall. He said $5,231 was a reasonable expenditure as this would cover the purchase price of the property, site clearing, site formation and footpath paving to the property and the preparation of the inauguration ceremony. It is common practice of the clans in the New Territories to erect several ancestral halls or tze tongs (祠堂) and not just one, for worshipping of their ancestors.

Submissions of the Defendants

22. Mr Lai and Mr Lee, Counsel for the Defendants, submitted that the Plaintiffs are holding the property to the extent of 1/3rd thereof upon trust for the Defendants. The explanation for the joint purchase of the property in Tai Po was because Tang Wai Tong, Tang Kei Mong and Tang Fan Shan were all descendants of the common line from Tang Yuen Leong and the choice of the Tai Po site was a piece of "fung shui" land. The poem which referred to the good geographical location was a testimony to this fact. Furthermore, the poem inscribed by Tang Wai Tong which expressly described himself as the "heir grandson" is a clear indication that the property was purchased on behalf of the Tso.

23. It was argued that the evidence of the contribution by the Tso was documented in the accounts books of the Tso. This is an ancient document and its authenticity cannot be disputed.

24. It was argued that the document written by Tang Chung Yeung and Tang Chuen Kei was in the nature of a declaration of trust. Although citing no authority, counsel submitted that the document has all the requisite requirements of a declaration of trust. There was certainty of intention, subject matter and objects. Furthermore, the property is not included in the Schedule of the Letters of Administration of Tang Wai Tong and this could only be consistent with the fact that the property was held upon trust for the Defendants.

25. The Defendants argued that the witnesses of the Defendants were able to tell that the Tso, Cheung Chun Yuen and Tang Tsung Shan Tso were merely aliases of Tang Mou Shau and they were of the same entity.

26. Counsel asked the court not to place too much reliance on the public records because of their inaccuracy. Counsel drew attention to the list of members of the Tong submitted in 1982 to the District Land Office in which Tang Kei Mong was not even listed as one of the three groups of beneficiaries (p.206 of Bundle D). Another example is p.228 of Bundle D which purported to show that Tang Fan Shan also transferred Lot 950 to Tang Yau Yi Tong when Tang Fan Shan was not even one of the owners of Lot 950.

Application of Chinese Law and Customs

27. I will now deal with the principles of law to be applied in matters regarding land in the New Territories.

28. Section 13 of the New Territories Ordinance provided that :

"In any proceedings in the High Court or the District Court in relation to land in the New Territories, the Court shall have power to recognize and enforce any Chinese custom or customary right affecting such land."

Mills-Owens J. in Tang Kai Chung v. Tang Chik Shang [1970] HKLR 276 held that the section is mandatory and not discretionary. This approach is followed in Tsang Wing Lung v. Tsang Lun, HCA No.7770 of 1987.

Proof of Chinese law and customs

29. Chinese law and custom is part of the law of Hong Kong and the court could find this law in authoritative textbooks and judicial decisions. In In re Tse Lai Chiu, deceased, [1969] HKLR 159, Hogan C.J. at p.175 held that :

"It would seem, therefore, that contrary to what the Solicitor General had suggested, Chinese law was part of the law of the land. Consequently, court could purport to find this law in authoritative textbooks as Sir Henry Gollan did in the Chak Chiu Hang case. But there has long been the practice in Hong Kong of taking evidence on such law, a practice endorsed in a number of judicial decisions, and although this practice may be regarded as a departure from the procedure normally followed in English courts, I think it must now be regarded as an established modification based on local circumstances though it should not be taken to supplant the court's right to inform itself by other means. As Chinese law was part of the law of Hong Kong the court can find this law either in the form of expert evidence or in textbooks and judicial decisions."

This approach is followed in the case of Fan Kam Ching v. Yau Shiu Hing [1986] DCLR 14, at p.17.

Authorities

30. Apart from judicial decisions, Mr Wong, leading counsel for the Plaintiffs, also referred to two recent articles on Chinese customary law published in the Hong Kong Law Journal (1990) HKLJ 13 and (1991) HKLJ 45. The authors of these two articles, namely Belinda Wong Sheung Yu and Stephen Selby relied extensively on publications such as E.S. Haydon's Chinese Customary Law in Hong Kong's New Territories, Maurice Freedman's Lineage Organization in South-Eastern China, James Hayes' Tong and Tso in the New Territories, Huge Baker's Chinese Family and Kinship and Hsien Chin-hu's The Common Descent Group in China and its Functions. Although the original text of these publications were not produced at the hearing, Mr Lai and Mr Lee, Counsel for the Defendants, have not taken any issue about the accuracy of these two articles. I am satisfied that the views expressed in these articles represent the correct principles. Based on the authorities and these articles, the following principles on Chinese law can be summarised as follows :

Tso and Family Tong

1) The tso and family tong are lineage trust whereby land is held in common ownership for the benefit of the whole lineage (Freedman, p.11; p.13 of Wong).

2) There are four types of tongs :

a. A purely business tong between friends or business associates with no common relationship;

b. A business organisation but one formed between clansmen;

c. The religious tong;

d. The family tong.

(Hayes; p.17 of Wong)

3) Three characteristics are common to the tso and the family tong :

a. It is the intention of the founders that the parcel or parcels of property must be perpetuated and not be disposed of (Hayes; p.14 of Wong);

b. The interest of the members of the tso or family tong begins when the member is born and ends when the member dies (Chu Tak Hing v. Chu Chan Cheung Kui [1968] HKLR 542, 565);

c. Only the direct male descendants of the ancestor whose name is used for the tso or family tong can be members of the respective tso or family tong; even the descendants of the originator's brothers do not qualify for membership (Hayes; p.18 of Wong).

4) As to the differences between a tong and a tso, a tong usually built a hall to house the ancestral tablets, but tsos have no halls (Baker at p.99; p.17 of Wong). The tong may use the family's lucky name or any other name, but the tso always use the name of the common ancestor plus the character "tso". (Hayes; p.17 of Wong) Family tongs may provide help to members in a variety of ways by assisting with education, health and general welfare of the members. They have "wider responsibilities" and "greater need of funds" than do tsos. (Hayes; p.17 of Wong).

Tso

1) A Tso may be shortly described as an ancient Chinese institution of ancestral land holding whereby land derived from a common ancestor is enjoyed by his male descendants for the time being living for their life-time and so from generation to generation indefinitely. Thus every male descendants of the common ancestor automatically becomes entitled at birth to an interest in the land for his life-time; on his death his interest merges so as automatically to enlarge the interest of the surviving male descendants; thus his interest at any given moment during his life-time depends on the number of male descendants then living and on his death it forms no part of his estate. (Per Mills-Owens J. in Tang v. Tang at p.279).

2) A tso is named after the common ancestor (Tang v. Tang p.280).

3) There are three ways in which a tso can be formed -

a. A tso is formed not by the common ancestor but by his son or sons on or after his death and as a matter of filial duty in accordance with Confucian tradition for the purpose of veneration of the common ancestor. A tso may be formed when the sons inherited land from the father and set aside part of the land in the name of a tso and divide the rest among themselves. (Baker p.50; Wong p.15)

b. A living male person on purchasing property had it conveyed not to himself but to his tso - in effect creating a settlement, (p.281 of Tang v. Tang).

c. A tso may be formed after the death of a male person dying intestate without male issue, by means of the adoption of a son for him after his death (p.281 Tang v. Tang).

4) The tso or the clan is divided up into a number of fong. If a man dies and has three sons, then each of those sons will eventually form a fong, a part of the tso, and all succeeding sons of those sons will form part of that fong. (Per the evidence of Akers-Jones in Tang v. Tang at p.306).

5) The custom is to preserve the land intact. Those who are at present managing it have to pass it on intact to succeeding generations and not to do this would indeed mean an abrogation of their customs or traditions. (Per the evidence of Akers-Jones in Tang v. Tang at p.308.)

Tong

1) A tong is a Chinese term which covers a variety of associations in Chinese rural society (p.57 of Selby). Of the terms used in the New Territories Ordinance, family and clan clearly indicate land held in the name of a group of individuals with a hereditary link. Tong, on the other hand can be related to a number of bodies, some of which consist of members with no hereditary link, (p.57 of Selby).

2) The tong has two distinct meanings in the context of New Territories land :

a. A owner may decide that, rather than allowing succession to his land to devolve according to custom (to be divided among his sons), all or part of his land should remain intact to be enjoyed communally by his sons and their male descendants in perpetuity. Where such a disposition is made by a land owner in his life-time, the land is held in the name of his tong.

b. Alternatively, following a land owner's death, all or part of his land may be set aside by his sons or later descendants by mutual agreement, in veneration of the ancestor's name (p.58 of Selby).

3) A tong may additionally be initiated by parties belonging to different families for economic and strategic purposes (p.59 of Selby).

4) A tong could end with the Chinese character "Yuen" and that was the prewar practice with quite many of them registered in Tai Po. (See the evidence of Cheung Shui Wing in Chu Tak Hing v. Chu Chan Cheung Kiu [1968] HKLR 542 at 571.)

5) There is no Chinese law and custom that enables a creator of a tong to revoke a tong and take back the property as his own property (evidence of Akers-Jones in Chu v. Chu at p.565).

Division of Property

31. Punti and Hakka villages sometimes have different views on the way division of proceeds from tong land are made. Hakkas traditionally recognize fong (branch) and ting (individual) as sub-divisions of a tso, while some punti villagers include two additional categories, "ka" (family) and "wu" (household) (p.52 of Selby). In most cases the first beneficiaries of the Chinese land trust are the sons of the originator (who may themselves be the founders) (p.60 of Selby).

Tsz Tong or ancestral hall

32. Central in clan ancestral worship in the villages is the ancestral hall. The ancestral hall is far more than a place to deposit the tablets of the dead and to hold the rites once or twice a year. Here take place important meetings of the "tsu" leaders, here are judged the disputes and crimes of tsu members, here are registered all members of the group, past and present. (Hsien Chin-hu; p.5 of Selby).

Customary Land Trust

33. The clan system in China grew up over the centuries (p.54 of Selby). The word clan is a translation of the Chinese word "zu" (p.56 of Selby). Hsien Chin Hu described zu as "patrilineal clan, including all who are descended from the same distant ancestor ... The families of the same surname do not necessary belong to the same zu" (p.56 of Selby). Rights and duties among the members centered among the men, as it was the males who preserve the lineage and clan wealth (p.54 of Selby). A clan common land was managed on a trust basis (p.55 of Selby).

Succession to estate of a Chinese person

34. If a tso was not formed, the estate of a Chinese person dying intestate, domiciled in the colony or leaving immovable property situated in the colony, would descend to the persons entitled on intestacy under Chinese law or custom, i.e. mainly to the sons (Tang v. Tang at p.280).

Only direct male descendants can be members of the Tong

35. I shall now apply the principles to the facts of this case. The starting point is that under the customary law, only the direct male descendants of the ancestor whose name is used for the tso or family tong can be members of the respective tso or family tong; even the descendants of the originator's brothers do not qualify for membership. Tang Yau Yi was not the name of an ancestor and thus we are left with the three founders of the Tong who were the three persons who purchased the property namely, Tang Wai Tong, Tang Kei Mong and Tang Fan Shan. In the circumstances, according to the linear nature of a tong, the members of the Tong should, in accordance with the Chinese law, be the direct male descendants of these three founders. As far as Tang Wai Tong is concerned, the male descendants would be his sons.

36. According to the generation chart, exhibited in Tang Sit Woon's witness statement of 3rd September 1994, Tang Wai Tong was of the 24th generation of the Tang clan. He was one of the three sons of Tang Chak Chow (鄧酌周) of the 23rd generation. Tang Chak Chow was one of the four sons of Tang Mou Shau, the 22nd generation ancestor. The generation chart further shows that the four sons of Tang Mou Shau and their respective male descendants were the members of the Tso.

37. If the Defendants' contention is right, then the beneficiaries of the Tong, other than the descendants of Tang Kei Mong and Tang Fan Shan, would start from the four sons of Tang Mou Shau who were of the 23rd generation instead of the direct male descendants of Tang Wai Tong who were of the 25th generation. This contention could not stand in the light of the Chinese law which the Defendants have not disputed. In other words, members of the Tso could not be the beneficiaries of the Tong whose membership is confined to the direct male descendants of the founders of the Tong.

38. Mr Wong, leading Counsel for the Plaintiffs, described the contention of the Defendants as a strange amalgamation. I agree with his view. I am not satisfied on the case presented by the Defendants that the 1/3 interest of Tang Wai Tong in the Tong was held on behalf of the Tso. Further if the Defendants' contention is correct, it would mean that since the two brothers of Tang Wai Tong and their descendants are members of Tang Mou Shau Tso, the two brothers and their descendants would be members of the Tong as well. This could not stand in light of the principles I have stated, particularly when the principle is that even the descendants of the originator's brothers could not qualify for membership. On the other hand, if the beneficiaries of Tang Yau Yi Tong are confined to the descendants of the three founders, such a scheme would fit into the principles under customary law.

39. Further if Tang Wai Tong had indeed purchased the property with the money of the Tso, the question is whether he would be holding the property on trust - presumably under a resulting trust - on behalf of the Tso? No authority or expert evidence has been adduced that this is possible in respect of Tong land in which the court is required to apply Chinese customary law. In my view this is a case where east and west simply do not meet.

40. Thus, as a matter of customary law, I find that the Defendant s have not established their case. Under customary law, the Tso could not be a beneficiary of the Tong.

The evidence did not support that Tang Mou Shau Tso has a interest in the property

41. There is no evidence to show that Tang Wai Tong was acting in a representative capacity when he purchased the property. The property was purchased in his personal name. According to the Schedule of Crown Lessees, (p.5 Bundle B) and the Schedule of Sale of Crown Land by Public Auction, (p.5A and 5B, Bundle B), Tang Wai Tong had purchased a number of properties in his representative capacity. Thus the evidence showed that if Tang Wai Tong wished to purchase the property in a representative capacity, he knew full well how to do it.

42. Even if Tang Wai Tong was acting in a representative capacity, there was no evidence to show that he was acting on behalf of the Tso. As indicated on p.10 in Bundle B, Tang Wai Tong was the trustee of 12 trusts. If he was acting in a representative capacity in the purchase of the property, the question arises as to which trust was he representing when he made the purchase. If he was acting on behalf of the Tso, there was no reason why the property was not included in the list for appointment of new managers in 1948. It should be noted that Tang Tsung Shan Tso had only 1/2 interest in DD109, Lot No.32, but nonetheless this tso was included in the list of appointment of new managers.

43. According to the Cheung Chun Yuen Income and Expenditure Book ("the Account Book") which is the record relied upon by the Defendants, there were entries for the purchase of land, e.g. in 1930 there was an entry for the purchase of land (p.119 of Bundle B) and in 1936 there was another entry for the purchase of land (p.125 of Bundle B). However, in respect of the property, the 1928 entry was that it was distribution in respect of the erection of the Tai Po Tsz Tong. Thus at most the interest of the Tso was confined to the structure and such interest had long been abandoned.

44. What is more fundamental is that there is no evidence that the money used for the purchase of the land or the erection of the structure came from the Tso. All that the Defendants could show, was, according to the Account Book, payment was made in 1928 for the construction of the Tai Po ancestral hall in the sum of $5,231 (p.116 of Bundle B) and in 1940 payment of $938 was made for the repair of the Tai Po ancestral hall. According to the information provided by the District Office (p.87 of Bundle D) Cheung Chun Yuen had been in existence before 1948. Prior to 1948 the manager was Tang Wai Tong. The Defendants maintained that the Tso, Cheung Chun Yuen and Tsung Shan Tso are same entities. They said that Cheung Chun Yuen and Tsung Shan Tso were merely aliases of Tang Mou Shau. They said the members of this three entities were the same. There are currently about 100 members of these three Tsos.

45. It is, however, clear from the public records that Cheung Chun Yuen and the Tso are separate entities. The manager for Cheung Chun Yuen was Tang Wai Tong. Whereas the managers for the Tso were Tang Wai Tong and Tang Kat Cho (鄧吉初) (see p.25 of Bundle E). On 18th November 1938, Tang Kan Wing (鄧根榮) was appointed as the joint trustee with Tang Wai Tong in place of Tang Kat Cho (p.48 of Bundle E). The appointment did not extend to the property held by Cheung Chun Yuen.

46. On 31st March 1948 (p.50 Bundle E), Tang Kan Wing was removed as one of the two trustees of the Tso. Again the removal did not extend to Cheung Chun Yuen.

47. On 18th March 1941, there was a redemption of a mortgage by the Tso (p.49 of Bundle E). $980 was paid to the mortgagee by the Tso. This expenditure was not shown in the account books of Cheung Chun Yuen. If the Tso and the Yuen were of the same entity, one would expect such event to be recorded in the Account Book as well.

48. The Account Book further showed that in 1948, rent was received from the Tso (p.144 of Bundle B). In the same Account Book, there were four entries of payment to the Tso, namely in 1921 (p.105), 1922 (p.107), 1923 (p.109) and 1924 (p.110). If Cheung Chun Yuen and the Tso were of the same entity, such entries of receipt and payment would not be necessary.

49. When Tang Lok Chi was appointed trustee in place of Tang Wai Tong in 1965 in respect of (1) Tang Yin Yuen Tso (鄧燕遠袓), (2) Tang Hing Wan Wui (鄧慶雲會), (3) Tang Cheung Chun Yuen, (4) Tang Tsung Shan Tso and (5) the Tso, the Tong was not among the tong or tso in which Tang Lok Chi assumed trusteeship. The property was held in the personal name of Tang Wai Tong. Although Mr Lai argued that this was not a cause of concern because Tang Wai Tong was still alive at that time, this must be based on speculation only.

50. The District Office maintained records for the tongs and tsos. In Bundle D, there are separate documentations produced by the District Office in respect of the Tso, Cheung Chun Yuen and Tsung Shan Tso. There may well be some mistakes, but on the whole the history can be gathered from these documents.

51. It is also clear that as a matter of customary law a "tso" or a "tong" or a "yuen" is a distinct entity. This is best illustrated by Chu v. Chu in which a purchaser purchased property in the New Territories in the name of tongs. In each instance, a trustee or manager was specified. The purchaser argued that the names relating to the properties were aliases or could be regarded as its private tong so that the manager held the property in trust for him. Scholes J., accepted the evidence of the experts on customary law and held that the names used by the purchaser were indicative of a family tong. The beneficiaries under the trust were the purchaser's male descendants from time to time. There was no Chinese law that would enable a creator to revoke the tong after its creation. A "Yuen" is a tong and the description was frequently used in Tai Po.

52. It is clear that the Tso and Cheung Chun Yuen are wholly distinct entities. As the Defendants are claiming through the Tso, they have no locus standi in the matter.

Declaration of trust

53. The Defendants relied heavily on the document signed by Tang Chung Yeung and Tang Chuen Kei in 1965. However, on analysis, this document could not assist the Defendants. If the Tso had contributed towards the purchase of the property, which I do not find to be the case, a trust - if indeed a trust could arise in a Tong land - would arise immediately and there is no question of the document of 1965 being a declaration of trust. That document is then no more than an acknowledgment of a pre-existing trust.

54. Again, if Cheung Chun Yuen contributed towards the purchase of the property, the trust also would arise immediately in favour of Cheung Chun Yuen. The document was wholly ineffective as no title in fact rested in the estate of Tang Wai Tong.

55. On the other hand, if Tang Wai Tong had paid for the purchase of the property, then the property belonged to him and his estate. The question then is whether the document was intended by Tang Chung Yeung and Tang Chuen Kei to declare a new trust in respect of Tang Wai Tong's interest not in the property which in law is vested with the Tong but in relation to his membership right in the Tong. It is wholly artificial to so construe that document.

56. Further I do not see how the concept of a trust created by declaration could co-exist in the context of a tong created under Chinese customary law. If the beneficiaries of the Tong are confined to members of the descendants of the three founders, I could not see how the descendants could create a trust of their beneficial interest in favour of the descendants of the Tso. No authorities or expert evidence has been shown that these two concepts can co-exist and I am not prepared to hold that this is possible.

Acquiescence

57. It is the Defendants' case that the Tong has been in existence since 1928. The property was assigned by the three purchasers to the Tong as long ago as in April 1940 (p.6 of Bundle B). Tang Tsan Wa was the trustee of the Tong at that time. The Tso had acquiesced in the transfer of the property to the Tong since 1940. Certainly by 1965, the Tso knew that it was not a member of the Tong when in the meeting, Tang Lok Chi informed the members of the Tso that Tang Wai Tong had purchased the property with money from the Tso. Although the members knew that Tang Wai Tong was a member of the Tong, they, nonetheless, agreed to let the two sons of Tang Wai Tong continue to administer the property. The written document signed by the two sons of Tang Wai Tong in 1965 was never submitted to the trustee of the Tong. Only the consent of members of the Tong was required for the disposal of the property. As manager of the Tong, Tang Tsan Wa was entitled to look only to the two members namely, Tang Chung Yeung and Tang Chuen Kei for their consent. The Tso had not asserted its interest in the property since the property was assigned to the Tong in 1940. Since 1965 they have agreed to let two persons namely, Tang Chung Yeung and Tang Chuen Kei to stand as their representatives in the Tong. Their duly authorised representatives had consented to the sale and it is now far too late for the Tso to assert any right to the Tong.

Conclusion

58. The Plaintiffs are entitled to succeed in this action and the following orders shall be made :

1. A declaration that the Plaintiffs are entitled to dispose of the property without the consent of the Defendants.

2. A declaration that the Defendants are not entitled to interfere with the Plaintiffs' sale or disposal of the property.

3. A declaration that the Defendants are liable to indemnify the Plaintiffs on a indemnity basis in respect of all liabilities, costs, expenses, loss and damage suffered by the Plaintiffs as a result of the objection lodged by the Defendants.

4. An injunction to restrain the Defendants whether by themselves, agents or employees from claiming to be owners of any interest in the property or from interfering with the Plaintiffs' rights of ownership over the property including the sale or disposal thereof.

5. Damages to be assessed.

6. Interest on the damage to be assessed at judgment rate from the day of the service of the writ to payment.

7. Costs nisi of the action to the Plaintiffs.