TO KAN CHI AND OTHERS v. PUI MAN YAU AND OTHERS

CACV 32/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 32 OF 1999

(ON APPEAL FROM HCMP 562/1992 and 2084/1994)

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J U D G M E N T

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Leong JA (delivering the judgment of the Court) :

Introduction

1. By an action commenced on 3 April 1996 the 1st plaintiffs To Kan Chi (陶根池), To Fuk Tim (陶福添) and To Kam Chau (陶鑑籌) as managers of the To Ka Yi Tso (陶嘉儀祖) and the 2nd plaintiffs To Cheong Lam (陶昌林), To Siu Lam (陶兆林), To Mei Lun (陶美粦), To Man Hing (陶萬興), and To Muk Tai (陶木泰) as representatives of the To Clan in five Tuen Mun (屯門) villages namely, Nai Wai Village (泥圍村), Tsing Chuen Wai (青磚圍), Tin Tsz Wai (田子圍), Lam Tei Village (藍地村) and Lam Tei San Village (藍地新村) claimed, inter alias, a declaration that they were the beneficial owners of the various pieces of land in DD130, 131, 132 and 138 registered in the name of Tsing Wan Kun (青雲觀), in particular, lot 416 and House lots 1, 2 & 3 in DD 131, where the temple Tsing Wan Kun and its surrounding gardens are situated (the properties). The plaintiffs claimed that Tsing Wan Kun was the collective name used by the To Ka Yi Tso and/or the To Clan to hold the properties and the income therefrom for the purpose of constructing and maintaining the Tsing Wan Kun temple and running it as a private or clan temple for the benefit of the To Ka Yi Tso and/or the member of the To Clan.

2. The 2nd defendant, the Secretary for Justice, in exercise of her role as parens patriae for charity denied the properties were beneficially owned by the plaintiffs but claimed they were beneficially owned by charity. The 2nd defendant maintained that Tsing Wan Kun was a name under which the properties were registered and it was a religious tong or charitable institution holding the properties for charitable purpose and counterclaimed for a declaration to that effect.

3. On 26 November 1998 Yam J, in his judgment, declared that the plaintiffs were the beneficial owners of Tsing Wan Kun and all the properties registered under its name and that Tsing Wan Kun and its properties were not a charitable and/or religious trust and/or tong and further that the Chinese Temple Ordinance, Cap. 153 was not applicable to Tsing Wan Kun. The counterclaim of the Secretary for Justice in respect of the properties was dismissed.

4. The present appeal is by the 2nd defendant, the Secretary for Justice, against the judgment of Yam J.

5. The background, the legal propositions and most of the evidence of the case are not challenged and may be summarised as follows:

Background

6. Within a complex commonly known as the Tsing Shan Monastery (青山禪院) are the Tsing Wan Kun temple (青雲觀) and the Tsing Shan Tsz (青山寺), the former is a Taoist temple while the latter is a Buddhist monastery. The To Clan (陶氏家族) was one of the earliest settlers in the Tuen Mun area in the New Territories. To Ka Yi (陶嘉儀) of the 4th generation of the Tos Clan who died in 1454 was one of their forefathers settled in Tuen Mun and the To Ka Yi Tso (陶嘉儀祖) represented by the 1st plaintiffs carried his name. In the ancestral hall of Tsing Shan Tsz, there is still a wooden epitaph or ancestral tablet (木神主牌) carrying the name of To Ka Yi with the description "the tablet of the founder and donor of land to the temple Mr To Ka Yi (建廟施田陶公嘉儀先生神位). Other members of the later generations of the To Clan included in the epitaph were To Ting Kui (陶挺舉), To Ting Shuen (陶挺選) and To Sik Kwong alias To Wai Fong (陶錫光又名陶懷芳). To Wai Fong died in 1880 some four hundred years after To Ka Yi's death. Thus the tablet could not have been created earlier than To Wai Fong's death in 1880.

Tsing Wan Kun Temple

7. There is no direct evidence as to who exactly built the Tsing Wan Kun temple and when it was first built; neither is there direct evidence to show who were the owners through the ages. In 1661, the Tsing Emperor Kang Xi (康熙) by decree ordered coastal settlements to withdraw 50 miles inland. If To Ka Yi was the one who first built the temple in the 15th century, the original temple could have been demolished pursuant to the decree and the present one was rebuilt years later. There are various relics in the temple bearing dates which could cast light on the likely time when the present temple was built. The stone lintel at the entrance to the temple has the date of the 9th year of Dao Guang (道光九年) i.e. 1829. A bell donated to the temple has the date of the 22nd year of Dao Guang (道光二十二年) i.e. 1842, and the date inscribed on a memorial stone in the temple commemorating donors to the temple is the 23rd year of Dao Guang (道光二十三年) i.e. 1843. There are nine donors of "fields" or "field rentals" named on this stone. Seven of them including To Ka Yi (陶嘉儀祖) and To Sik Kwong (陶錫光) are of the To Clan. The remaining two are not Tos and they are Fan Kwong Chiu (樊廣昭) and Tang Yuen Wing (鄧遠榮). While these relics do not show when the temple was built, they at least show that the To Clan had been involved in the temple as early as the 19th Century, if not earlier. The memorial stone also contained references to donations made from fields of Tai Lang Shui (大冷水), Siu Lang Shui (小冷水) and Yeung Siu Hang (楊小坑) but these are names of places in the Tuen Mun area and not identifiable with any specific fields from which the donations came. Some of the entries in the Grain Book (糧簿) of To Tong Hing show that rental had come from fields of the To Clan in these places, but these are of little significance in showing the ownership of Tsing Wan Kun.

Lantern Lighting Ceremony

8. The To Clan has a tradition of performing the Lantern Lighting Ceremony (點燈儀節) each year on the 15th day of the first month of the lunar calendar. This is a To Clan activity to celebrate the extension of the Clan and would be carried out whenever a male descendant is born. The ceremony is a precondition for the new born male descendant to be recognised as a member of the To Clan. The procedure for this ceremony is set out in the Lantern Lighting Book (瓜瓞綿長) which has records dating back to 9th year of (Ham Fung) 1859 (咸豐九年) of such ceremonies. According to this book, when the ceremony takes place, lanterns would be hung in the ancestral hall (祠堂), Hou Kwok Temple (口角廟) Ta Tsuen Temple (大村廟) and Tsing Shan (青山), (the judge regarded this to mean Tsing Wan Kun temple (青雲觀) because Tsing Shan Tsz (青山寺) was not built until many years later). In so far as Tsing Shan (青山) is concerned, the octagonal lantern (八角燈) would be hung in the Main Hall (大殿正處列聖前), one small lanternt (三元燈) each would be hung before the Saints at the Entrance Hall (頭門列聖前), the God of the Earth (石玄舍), the Buddha (佛爺) and the Miscellaneous Shrine (雜壇). Five small lanterns would be hung in the Taoist Tso Tong Ancestral Hall (道家祖堂長生祿位前). The book records also show that the To Clan had continued to perform the ceremony on many occasions since 1859. Traditionally, the person in charge of Tsing Wan Kun would provide vegetarian meals to the To Clan when they came to the Tsing Wan Kun temple to perform this ceremony and this was also the case when they came to perform the ceremony in 1996. But whether it was a free meal is an issue in this case.

Land ownership after the Convention of Peking 1898

9. Following the Convention of Peking 1898, the British Administration published in 1900 a report by the Colonial Secretary Mr Stewart Lockhart on the New Territories. This report provides useful information on land holding in the New Territories prior to 1898, particularly on the various tenures of land holding. The report states that in addition to land being owned by clans or private families and individuals which could be sold, mortgaged or settled upon specific trusts, there were Ancestral Land "Sheung Tin" (嘗田) which was land set aside for ancestral worship and the income from it was devoted to the upkeep of the ancestral temple and to provide for assistance to and generally for the benefit of members of the clan; Temple Land "Miu Tin" (廟田) which was land devoted to the support and upkeep of a temple dedicated to the service of some specially selected idol in the name of which the land was held and some of those who originally subscribed towards the erection of the temple or their descendants acted as trustees and kept account of the income and expenses; and Land held by Association "Ui Tin" (會田) which was land purchased with contributions by members of an association of villagers the income of which might be used for the burial of a member or to assist a member to emigrate or for such other good object as the members desired.

10. The report also detailed the steps taken out by the Sub-District Committee-men to secure the registration of all the owners of cultivated land in the New Territories in order to prepare a Crown Rent Roll. This involved giving notices and distribution of registration forms to persons claiming titles on land in the New Territories. Registration of claims would have to be accompanied by title deeds or if such deeds had been lost or destroyed, the claimants to the land were required to produce substantial proofs of their ownership such as rent roll, receipts for land tax and other particulars pertinent to the land in question.

11. The report also recommended that a Land Court be established to deal with disputed claims to land. The Land Court was duly established under the New Territories (Land Court) Ordinance, 1900 and was empowered to allow or disallow any claim in relation to land.

12. The New Territories (Land Court) Ordinance, 1900 also declared under s 17 that all land in the New Territories to be property of the Crown during the period of the Convention i.e. 99 years from 9 July 1898 and as from a date fixed by the Governor by notification in the Gazette, all persons occupying such land were declared trespassers as against the Crown unless their occupation was authorised (1) by grant from the Crown; (2) by other title allowed by the Land Court under the Ordinance; (3) by licence from the Governor or other authorised government officers; or (4) a claim to be entitled to such occupation had been presented to the Court and had not been withdrawn or heard or disallowed.

13. After its 1st year of operation, the Land Court reported in 1901 that an elaborate procedure of demarcation of cultivated land in the New Territories had been carried out. This involved issuing to all persons claiming an interest in the land tickets bearing the lot numbers and description of the holdings. All particulars of ownership were then entered in a Demarcation Register kept by the demarcator. Landowners with lot number tickets were invited to go before the Land Court and made their claims on special forms provided by the court by a fixed date.

14. The Report on the New Territories 1899 - 1912 reported that survey and demarcation work were carried out in this manner and at the end of 1904, the Land Court finally determined all land claims and compiled the Crown Lease Schedules and Rent Rolls in the New Territories. By that time, the claimants' only official documentary proof (visible sign) of ownership of land was the lot number tickets. As they could be easily lost or transferred, it was decided to issue to each land owner a "chap chiu" (執照) or certified extract from the Rent Roll of his holdings. This process was carried out from May 1905 to September 1906 and the opportunity was also taken to make necessary corrections and additions to the original Schedules attached to the Block Crown Lease.

15. The New Territories Land Ordinance, 1905 was enacted in the meantime and under section 11, it enabled the court to recognise and enforce Chinese custom or customary right affecting land in the New Territories. This Ordinance also provided under section 13 for the appointment of managers by a clan, family or tong to represent it and registration of such managers where any land was held from the Crown under lease or other grant in the name of the clan, family or tong and every instrument relating to land held by a clan, family or tong which was executed or signed by the registered manager of the clan in the presence of the Land Officer and was attested by him, should be as effectual for all purpose as if it had been executed or signed by all the members of the clan, family or tong. It also provided that if after acquisition of land by a clan, family or tong and within three months of it, no manager was appointed the Crown might re-enter and the land would become forfeited to the Crown.

16. Under s 14 exemption from registration under the Companies Ordinance, Cap. 32 might be granted to any clan, family or tong owning land in the New Territories in respect of which a manager had been registered, if such land was certified by the Land Office as being used for agricultural, religious, educational or charitable purposes or similar uses even though consisting of more than 20 members.

17. The new legislation thus put into effect a new system on land holding in the New Territories.

Block Crown Lease

18. Under this new system, Block Crown Lease was granted in respect of the different New Territories demarcation districts between the Crown and persons holding land in the districts at the time. These persons could be clans, families and "tongs" or their successors and managers. They all became Crown Lessees and were registered in the Schedules to the Block Crown Lease. Before a grant was made to the lessee and inclusion of him in the Schedule, his entitlement to land holding would have been carefully investigated but there could be mistakes. The Block Crown Lease thus also made provision for later amendments to be made to the Schedule by Substituted Schedule and Supplemental Schedules.

19. In the Schedule to the Block Crown Lease, the owner of Lot 416 in DD 131 described as Garden lot was "Tsing Wan Monastery, trustees Tang Po Yun & To Tong Hing" (青雲觀, 司理鄧普緣, 陶堂興); the owner of House lots 1, 2 & 3 in DD131 described as temple lots was "Tsing Wan Monastery, trustee Tang Po Yun" (青雲觀, 司理鄧普緣) and the owner of lots 37, 75, 640, in DD132 described as dry padi and lots 17 to 36 in DD 138 described either as waste or padi was also "Tsing Wan Monastery, trustee Tang Po Yun" (青雲觀, 司理鄧普緣).

20. In June 1911, the District Land Office in Taipo issued a certificate of an extract from the Rent Roll (執照) in respect of the lots in DD130, 131, 132 and 138 held in the name of Tsing Wan Kun certifying that Tsing Wan Kun with To Tong Hing and Tang Po Yun as trustees were owners of the lots and stated that the certificate was to enable the landowners to identify their lands in the Land Office register.

21. Thus, Tsing Wan Kun must be a clan, family or tong within the meaning of s 13 of the New Territories Land Ordinance, 1905 holding land through the managers, otherwise Tsing Wan Kun could not have been a grantee of the leases of the lots in question under the Block Crown Lease.

The parties' contentions and legal propositions

22. The question thus arising is: who are the members of the clan, family or tong comprising Tsing Wan Kun.

23. To this question the plaintiffs' contention is that the name Tsing Wan Kun was used to denote properties of the To Clan used for building the temple of Tsing Wan Kun and maintaining it and for carrying on activities of the To Clan. The managers held the land for the benefit of members of To Ka Yi Tso and/or the To Clan. It follows that the To Ka Yi Tso and/or the To Clan are therefore the members of Tsing Wan Kun.

24. The 2nd defendant's contention is that the managers held the land on charitable trust because Tsing Wan Kun was a charity or the land granted to Tsing Wan Kun was held on charitable trust.

25. The parties do not dispute the following legal propositions under Chinese customary law applicable to the present case:

26. On these propositions of law, it does not matter that the grantee of the leases in the Block Crown Lease was in the name of Tsing Wan Kun only, that no reference was made therein to To Ka Yi Tso, that Tang Po Yun was named therein alone or together with To Tong Hing as managers or trustees of the land, neither of them manager of To Ka Yi Tso, or that the members of Tsing Wan Kun and To Ka Yi Tso or the To Clan were the same persons, if it can be shown that To Ka Yi Tso and/or the To Clan were the persons who established Tsing Wan Kun. If that be the case, the land was being held by the managers for the benefit of To Ka Yi Tso and/or the To Clan.

Chan Chun Ting （陳春亭）

27. One of the crucial figures in this case is Chan Chun Ting (陳春亭). He was originally a Taoist priest in Tsing Wan Kun but since some time in 1909, he converted to Buddhism and became a monk. He later established the Tsing Shan Tsz. He was then actively engaged in purchases of land around Tsing Wan Kun. In August 1909, he sought to buy lot 410 in DD131 for resale to a woman but because the deal with the woman fell through, no purchase was made. In October, 1910, he obtained a new grant of lot 417 and lot 418 which were lots situated within lot 416 of DD131. In December 1911, he bought lot 440. The present Wu Fa Dian (護法殿) stands on lot 417 and Grand Precious Hall (大雄寶殿) stands on lot 418 and the kitchen of Tsing Wan Kun stands on lot 440. He further bought lot 484 which he later used as grave yard. Tsing Shan Tsz came into existence on the completion of the Grand Precious Hall (大雄寶殿) in 1918. This date may be verified by the date of 1918 inscribed on the bell inside the Grand Precious Hall. His land purchases were all registered either in his own name or in the name of Tsing Shan Tsz with himself registered as manager. Chan Chun Ting is relevant because of the allegation of the 2nd defendant that the Tsing Wan Kun properties were donated by the To Clan to Chan Chun Ting by way of a document called Sung Tip (送帖) in September 1914 and because Chan Chun Ting's activities in land purchases and the inscription on a piece of stone in the temple made in the name of District Land Officer Ross - which the parties called "the Ross Ruling" - could show that he was in charge of Tsing Wan Kun before the Sung Tip came into existence.

The Ross Ruling

28. The Ross Ruling was inscribed on a piece stone located in Tsing Wan Kun. This is an announcement dated March 1914 purporting to have come from the then District Land Officer Ross. It states in effect that the District Land Officer had adjudged Chan Chun Ting to be in charge of Tsing Shan Tsz (曉諭事照得屯門青山寺乃修真之勝地 ...... 是以本司判定陳春亭主持該寺) and from then onwards, no one was allowed to have any excuses to cause disturbance in the place. It warned that anyone ignoring this notice would be brought to trial and punished. Mr Stewart Buckle Carne Ross was District Officer of the Northern District, New Territories in 1912 and Tsing Shan Tsz was not completed until 1918. Thus, the reference in the ruling in 1914 to Tsing Shan Tsz should be to none other than Tsing Wan Kun.

The Sung Tip （送帖）

29. The document Sung Tip (送帖) was signed by four members of the To Clan on 14 September 1914. The signatories were To Dian Kwai (陶殿貴) of the 16th generation, the Chief Elder of the Clan (第十六代族長), To Yiu Tung (陶耀東) of the 3rd segment of the 16th generation (第十六代三房), To Tong Hing (陶堂興) of the 2nd segment of the 16th generation (第十六代二房) as manager (司理), and To Hei Ting (陶喜廷) of the eldest segment of the 18th generation (第十八代長房). This is a document in the possession of the Tsing Shan Tsz at all times and there is no evidence that the To Clan has a copy of it. The signatories called themselves "mountain owners" (山主). The document states that these signatories had agreed to grant Pui To Tsz and Tsing Wan Kun temple in Tsing Shan to Chan Chun Ting, in return for $360 giving him the right of (主持) in charge of the two institutions for him to maintain worship and offerings (供奉) to the Buddha and Gods (神佛) there. This also made Chan Chun Ting person in charge of (主持司祝) the income and expenses relating to the two institutions and entitled him to maintain (重修整造) and collect rentals and produce (收租納量) from the fields and orchards of the two institutions. By this document, the To Clan promised not to demand more money from Chan Chun Ting or to replace him as the person in charge (主持) of the two institutions and Chan Chun Ting promised not to hand over the charge of the place (寺觀司祝) to other persons. The sum of $360 was handed over and receipt of it was acknowledged by To Yiu Tung and To Hei Ting by signing on the Sung Tip.

The Grain Book

30. There is in evidence a book with the name "Grain Book" (租簿) marked at its edge in the possession of To Tong Hing's grandson, To Kwai Chuen (陶貴泉). This is the Grain Book of To Tong Hing and this book contained records of the receipt by To Tong Hing of rentals from the fields of the To Clan. There were entries in the book indicating that rentals were collected from fields in Tai Lang Shui, Siu Lang Shui and Yeung Siu Hang. There were also a number of different entries, in particular, one in the 34th year of Guang Xu (光緒三十四年) (1908) and one in the first year of the Republic (民國元年) (1911), with the chop of Tsing Wan Koon stamped on them to indicate those particular rentals were for Tsing Wan Kun.

Crown Rent

31. The plaintiffs paid Crown Rent in respect of the properties of Tsing Wan Kun in 1996 for the arrears between 1983 and 1996. Payment was made after the plaintiffs joined in these proceedings. The Government would accept payment by anyone, not necessarily by the owner of the land.

Account Book

32. The To Clan also kept a "Record Book or Account Book of the Tax Duties and Ancestral or Sacrificial Land separately managed in equal shares by the three segments of the To Ng Lau Tong" (陶五柳堂均派三房分理糧務嘗產登記簿). There is no dispute that To Ng Lau Tong is another name for To Ka Yi Tso. Under the section "Annual tax grain and silver to be collected from land and orchards assigned by mortgage for perpetuity to other people left by ancestor Ka Yi Tso is listed below" (嘉儀祖所遺下典斷出與人田園每年該收納糧米銀登記於後) is an entry "Tsing Wan Koon at Tsing Shan every year responsible for perpetual [transferred] land rice silver of 7 qian and 2 fen ...) (聖山青雲觀每年該斷田米銀七錢二分 ......). This book was considered by the parties to be significant in the determination of the ownership of Tsing Wan Kun. The 2nd defendant contends that the effect of the book in particular this entry, show that the land held in the name of Tsing Wan Kun had been transferred or assigned by To Ka Yi Tso or the To Clan to Tsing Wan Kun by way of donation.

The plaintiffs' case

33. The plaintiffs' case is that their claim to ownership of the properties is supported by the evidence of the epitaph, the memorial stone, the To Clan's rites of lantern lighting at the Tsing Wan Kun temple by members of the To Clan, the lantern lighting book of the To Clan, the provision of free vegetarian meals by those administering the temple to members of the To Ka Yi Tso or members of the To Clan during the opening and closing of the lanterns; the registration of To Tong Hing and Tang Po Yun as joint managers of all the properties in an old "A" book in the possession of the District Office, the Rent Roll certificate, the Sung Tip, payment of Crown rents for the properties by members of the To Clan, receipt by the Tso or To Clan of rents from tenants of the properties and the Account Book.

The 2nd defendant's case

34. The 2nd defendant's case is that none of the evidence proves ownership of Tsing Wan Kun by the plaintiffs. On the contrary, the Record Book entries show that the land in question had been perpetually assigned or transferred to Tsing Wan Kun as a donation by the plaintiffs. The 2nd defendant contends that the Ross Ruling was authentic and it was made by the Land Officer after determination of Chan Chun Ting's right in Tsing Wan Kun so as to prevent the To Clan and other people from interfering with the Chan Chun Ting's management of the temple. The Sung Tip is an important piece of evidence which shows that To Ka Yi Tso or the To Clan had transferred the rights in the properties of Tsing Wan Kun to Chan Chun Ting in return for $360 to enable him to run the temple as a charitable and or religious tong for the benefit of the public as opposed to the benefit of Chan Chun Ting himself or any individual and this is confirmed by the Ross Ruling. It also shows, the 2nd defendant submits, that Tsing Wan Kun had always been run as a Forest of Ten Directions (十方叢林) and the To Clan intended it to be run as such.

The judge's findings

35. The judge found on the evidence of the Lantern Lighting Book that the To Clan had an ancestral hall in Tsing Wan Kun where the wooden epitaph was originally installed and where the octagonal main lantern would be hung at the Lantern Lighting Ceremony. He found the presence of the wooden epitaph in the temple indicated that the To Clan had used the temple as their private temple because it was the popular practice in the days of To Ka Yi to worship ancestors in a private temple rather than in an ancestral hall. He found that To Ka Yi was named in the epitaph as the person who established the temple and that the memorial stone commemorating the continued donation to the temple by members of the To Clan show that the temple was treated by the To Clan as the property of their Tso. He accepted the expert evidence of Professor Baker and Dr Faure that it was common for a private temple outside a village to open to public visitors and to receive offerings and donations to it by outsiders and he found that Tsing Wan Kun had been open to public visitors and their donations through the ages. That being the case, the inclusion of Tang Yuen Wing (鄧遠榮) and Fan Kwong Chiu (樊廣昭) in the epitaph and other non To Clan donors in the memorial stone was not surprising. This did not mean that the temple was not owned by the To Clan. The judge also found that through the ages, when the occasion arose the To Clan would perform the ceremony of lantern lighting at Tsing Wan Kun and that was a ceremony exclusive to members of the To Clan to mark the extension of their clan. He accepted that when such ceremony took place, the members of the To Clan would be provided with vegetarian meals by the person in charge of the temple and while members of the To Clan might make a payment in the form of incense money as part of their worship in the temple, the vegetarian meals were free. The judge found that such payment was entirely independent of the provision of vegetarian meals which was regarded by the To Clan as a symbol of their ownership of the temple. He came to this conclusion based on the expert evidence of Professor Dicks that lay donors who established the temple and owned the property of the temple would invariably be treated with a free vegetarian meal to mark their right of ownership and control over the temple and this was especially common in South China.

Attacks on the judge's findings

36. The 2nd defendant attacks the findings on the ground that the wooden epitaph does not identify the temple and the fields To Ka Yi was said to have donated and thus it has no probative value. There is no evidence, it is submitted by the 2nd defendant, that To Ka Yi had founded Tsing Wan Kun and made it the property of the To Clan. If To Ka Yi had donated the temple, he had severed his ownership of it. The donations to the temple by members of the To Clan do not prove ownership of the properties by the plaintiffs. It is submitted by the 2nd defendant that the judge's conclusion that Tsing Wan Kun was a private temple of the To Clan because he found that the wooden epitaph was originally installed in an ancestral hall in the temple was a pure conjecture. Donations by non-members of the To Clan to the temple cast doubt on the plaintiffs' claim that the temple was a private temple belonging to the To Clan or the To Ka Yi Tso. The 2nd defendant also makes various attacks on the judge's interpretation of the memorial stone inscriptions and his findings regarding the significance of the Lantern Lighting Ceremony. In particular, the 2nd defendant submits that the judge was wrong to regard the reference in the Lantern Lighting Book to "Tsing Shan" (青山) as reference to Tsing Wan Kun, the reference to the "Main Hall" (大殿) as the Dou Lou Dian (斗姥殿) and the reference to "The Saints at the Entrance Hall" (頭門列聖前) as the entrance hall to Tsing Wan Kun where there is no evidence to that effect. The attack is also aimed at the judge's apparent failure to have regard to the evidence of To Yau Shun (陶有信), the village chief and one of the plaintiffs' To Man Hing (陶萬興) as to the frequency of the Lantern Lighting Ceremony over the years before reaching his conclusion that the ceremony had been performed continuously over the years. It is also submitted that it is a communal right to lit lantern in a temple and that does not indicate ownership of the temple and the exclusivity of the To Clan to carry out the ceremony at Tsing Wan Kun has no evidential basis. The 2nd defendant further points out that there is no evidence to show that members of the To Clan had meals at Tsing Wan Kun since the meals were served out of the kitchen standing on the land granted to Tsing Shan Monastery. There are other attacks on the inferences drawn by the judge in relation to free vegetarian meals provided at Tsing Wan Kun to members of the To Clan and the meaning of Shan Chu (山主) adopted by the judge.

Consideration of the judge's findings

37. The judge's conclusion is that the wooden eptiaph, the memorial stone, the lantern Lighting Ceremony Book, the conduct of lantern lighting ceremony, the free vegetarian meal, the Account Record Book together with the Sung Tip are sufficient for him to find on the balance of probabilities that the Tos established and owned Tsing Wan Kun before the British Administration in 1898.

38. As to the significance of the entry "Tsing Wan Koon at Tsing Shan every year responsible for perpetual [transferred] land rice silver of 7 qian and 2 fen" (聖山青雲每年該斷田米銀七錢二分 ......) in the Account Record Book, whether it shows the To Ka Yi Tso, if they owned the fields of Tsing Wan Kun, had perpetually assigned or transferred or mortgaged them away (典斷與人田) the judge relying on the expert evidence found that this did not mean severance of the fields by the To Ka Yi Tso. Rather it was the record of an alienation of the surface rights of the fields in return for an annual payment for tax liabilities and the retention of the right to the subsoil.

39. The 2nd defendant in her submission embarks on a detailed analysis of the Account Book or Record Book and putting up her own interpretation of the Chinese wording in this piece of evidence, in particular the phrases "dian duan tian" (典斷田) and "gai duan tian" (該斷田) the 2nd defendant argues that the judge was wrong to conclude that the Account Book indicated that only the surface interest were transferred by the To Clan to the temple and that the To Clan retained the subsoil and remained responsible for tax duties. It is submitted that if the To Clan remained as tax lords, that would probably not be recognised by the Land Court as sufficient basis for their claim to ownership.

40. The evidence of the Account Book, in our view is not sufficient to prove conclusively that the To Clan had ownership of the properties in question but it is evidence which the judge could and in fact did take into account in his overall assessment of the evidence which is relied on by the plaintiffs as the basis of their claim. This is a record of the division of the tax responsibility of the three segments of the To Clan in relation to fields owned by the clan. This is also a record of the existing land properties and those left by their forefathers. If the land had been perpetually donated to Tsing Wan Kun, the To Clan would not be still concerned with tax duties. Professor Dicks gave the probable explanation to the phrase "gai duan tian" (該斷田) and he said what was absolutely or irrevocably sold to Tsing Wan Kun was the surface right of the field leaving with the To Clan the ownership of the subsoil and Tsing Wan Kun was to pay an annual sum sufficient for the To Clan to defray the tax duties due from them as owners of the subsoil. That explanation was not unreasonable and had not been challenged. The judge was entitled to accept it and to rely on it for his conclusion. The judge cannot be faulted in accepting the evidence and his conclusion should not be disturbed.

41. On the Sung Tip, the judge found the document was signed by the four members of the To Clan on behalf of To Ka Yi Tso in the capacity of "Shan Chu" (山主) which the judge found to mean owner of the temple. The judge found the effect of this was that the To Clan gave to Chan Chun Ting a right in the form of a licence, to be the abbot of the temple for life. He found the absence of the signature of Tang Po Yun, the manager of Tsing Wan Kun, showed that Tang Po Yun or his clan had no beneficial interest in Tsing Wan Kun. He drew the inference that the Tos owned the temples and for $360, they appointed Chan Chun Ting as the abbot of Tsing Wan Kun for life.

42. The 2nd defendant attacks the findings of the judge in respect of the Sung Tip in the same manner as she does in respect of the Account Book. After an analysis of the document's wording, she argues that in the light of the land purchasing activities carried on by Chan Chun Ting starting from 1910 showing that Chan Chun Ting was already in place in Tsing Wan Kun, he could not have been there without the To Clan's consent if they were the owners and that the judge's conclusion that Chan Chun Ting derived his right of management of the temple from the Sung Tip is incorrect.

43. The wording in the Sung Tip, no matter how one interprets it, does not in any way indicate that it was anything other than the granting of a right of management of the temple to Chan Chun Ting for life in return for a consideration of $360, with the undertaking by the To Clan that Chan Chun Ting would have quiet enjoyment of his continued right of maintaining and worshipping the Buddha and Gods of the temple and to receive rents and produce from the land. While any change in the management should not be carried out without the consent of the To Clan, it is a grant of the right to manage by the To Clan reserving to themselves the ultimate right of control. In our opinion the judge's conclusion on the Sung Tip must be correct. On the balance of probabilities, this means that the To Clan should have ownership of the temple before any such grant could be made by them to Chan Chun Ting.

44. For the various reasons the judge stated in his judgment, he doubted the authenticity of the Ross Ruling. Those are cogent reasons. In particular, the judge found there was no record of it in Government files and if the ruling was genuine, it must have been registered as required under the New Territories Land Ordinance 1905. Nor was it recorded in the administration reports which recorded disputes in the New Territories. If it were a land claim dispute, it should have been dealt with in the Land Court and not by the District Land Officer. The only possible dispute that the ruling could have referred to was that between Chan Chun Ting and Madam Wong who was employed by the former but that should not have been dealt with by the District Land Officer. Further there was no mention of the ruling in any of the studies carried out on the history of the Tsing Shan Monastery nor is there evidence as to when it was first installed. He attached no weight to it.

45. We have no hesitation to conclude that the judge was right in giving no weight to the Ross Ruling and no attack can be justifiably made on what weight the judge placed on the evidence which he had heard and considered. That ruling, even if it were authentic, indicates no more than that the Land Officer had resolved a dispute as to who was the person recognised by the Land Office as being in charge of the temple at that time. That did not decide on ownership. Nevertheless, the judge cannot be faulted in his decision in this respect.

46. On the question of only Tang Po Yun and not To Tong Hing was named in the Schedule to the Block Crown Lease as trustee of the lots registered in the name of Tsing Wan Kun except in the Supplemental Schedule where To Tong Hing was named as a co-trustee in respect of lot 416 in DD131, the judge found that Tang Po Yun was the caretaker of Tsing Wan Kun for the time being when the exercise of registration of land holding took place prior to the drawing up of the Rent Roll and the Block Crown Lease. Because Tang Po Yun was there at the field, he was registered. To Tong Hing was subsequently recognised and approved as a manager, resulting in a correction being made to include him in the Crown Lease as a co-manager by way of the Supplemental Schedule. This is further confirmed by the certificate of an entry in the Rent Roll naming both as trustees of the land registered in the name of Tsing Wan Kun. The judge further relied on the Memorial of Assignment of Lot 1297 in DD132 where the transferor was stated to be Tsing Wan Kun with Tang Po Yun and To Tong Hing as trustees. The judge opined that the fact that the Tang Clan had not come forward to make a claim to ownership of Tsing Wan Kun or participated in these proceedings was most material and concluded it was more probable that Tang Po Yun was a caretaker employed by the To Clan at the temple.

47. The 2nd defendant's contention is that Professor Baker's expert evidence is that no outsider may be appointed as a manger of land held by a Tso and the judge was wrong to conclude that Tang Po Yun was a caretaker at the temple. It is submitted that the judge failed to appreciate the significance of the role of Tang Po Yun as manager of Tsing Wan Kun.

48. In our view, there is no doubt Tang Po Yun was a manager of Tsing Wan Kun and this was accepted by the Land Office. But this is not inconsistent with the judge's conclusion that he was there as caretaker of the temple when registration took place prior to the grant of the lease. The fact remains that To Tong Hing was a manager of Tsing Wan Kun, albeit he was appointed subsequently and included in the Block Crown Lease by way of the Supplemental Schedule. That being so, Tang Po Yun was also a manager would not affect the plaintiffs' claim that they were beneficial owners of the land. The descendants of Tang Po Yun or the Tang Clan that he represented, if there was such a clan, may have a similar claim but that does not assist the 2nd defendant's contention that Tsing Wan Kun is incapable of private ownership in that it was subject to a charitable trust.

49. The judge rejected the contention that Tsing Wan Kun was run together with Tsing Shan Tsz as a Forest of Ten Directions (十方叢林), and that the To Clan had transferred the ownership of the temple and its properties to Chan Chun Ting by way of the Sung Tip. The judge came to his conclusions by drawing the necessary inferences from the accepted evidence.

50. It is agreed by the parties that a Ten Directions Forest or Ten Directions Monastery (十方叢林) is a Buddhist establishment to receive monks from all directions and to provide communal food and shelter to them without distinction and discrimination for the purpose of cultivating their faith and to promote the dharma. The establishment and the monastic property belong to the public.

51. The evidence of Dr. Lai Chi Tim (黎志添) is that Chan Chun Ting became the person formally in charge of Tsing Wan Kun after the Sung Tip which required him to maintain of the Buddha and worship Gods. Tsing Wan Kun remained a temple worshipping the Taoist Dou Mou (斗姆) and Wong Ling Koon (王靈官) and cerebrating Taoist religious rites. The Taoist symbol of Ying Yang (陰陽) is still installed in the temple. The To Clan performed their Lantern Lighting Ceremony at the temple each year. Tsing Shan Tsz was not built until 1918. These were all inconsistent with the Buddhist institution of a Ten Directions Monastery open to the public generally. The judge found that Chan Chun Ting had not acquired absolute proprietary right to the temple and he could not have changed it to a monastery. On the evidence the judge was entitled to his conclusion that it was not possible that there was an amalgamation of the two establishments to form a public monastery as suggested by the 2nd defendant. These conclusions are findings of fact that are well borne out by the evidence.

52. The 2nd defendant's submission is that all the evidence, putting it at its highest, merely show an association with Tsing Wan Kun by the To Ka Yi Tso or the To Clan in the mid 19th Century but there is no evidence that Tsing Wan Kun was in lay ownership or that To Ka Yi Tso or the To Clan owned the temple. It is also submitted that there are other inferences that can be drawn from the evidence and the inferences drawn by the judge are wrong.

Conclusion on the judge's findings

53. As we have mentioned elsewhere in this judgment, there is no direct evidence as to ownership of Tsing Wan Kun. As counsel for the 2nd defendant have stated at the beginning of the appeal, the question is largely to be decided on facts. While a particular item of the evidence alone may not justify the plaintiffs' claim of ownership and while an inference from a particular piece of evidence may not support the plaintiffs' case, the judge is entitled to take a global view of all the evidence before him and ask himself the vital question: "On all the evidence before me which I accept, have the plaintiffs proved that they are the beneficial owners of the properties in question?" If the judge after considering all the circumstances, and on his evaluation of the evidence, found the plaintiffs' case proved and the evidence supports his conclusion, the Court of Appeal is not there to interfere.

Judge's approach on standard of proof

54. The 2nd defendant submits that the judge had embarked on speculation and was wrong in his approach to the evidence because he should not have based his conclusions on one of several possible inferences.

55. Although the judge in his judgment had on a number of occasions referred to the inferences he drew as irresistible or necessary inferences from the evidence, the judge had not departed from the established standard of proof of balance of probabilities. The judge was entitled to base his conclusion on the more probable inferences from the evidence.

56. Suffice to say, the 2nd defendant's case on appeal is to a large extent founded on attacks on the judge's interpretation and evaluation of the evidence and his findings of fact. What weight the judge attached to the evidence and what inferences he drew from the evidence is a matter for him. If he reached a conclusion which is against the evidence, that finding may not be upheld. But if the findings are supported by the evidence he accepted as true and the findings are not unreasonable or contrary to common sense, then there can be no reason for them to be disturbed. We do not see these findings of the judge are against the evidence. The attacks on his findings are unjustified.

Whether Tsing Wan Kun is on "temple land"

57. The 2nd defendant also suggests that the land on which Tsing Wan Kun was built and described as "temple land" in the Block Crown Lease is "temple land" as defined in the Lockhart Report. There "temple land" is land devoted to the support and upkeep of a temple dedicated to the service of some specially selected idol in the name of which the land is held. Subscribers to the erection of the temple would be trustees to run the affairs of the temple. It is submitted that the plaintiffs could not have retained ownership of the temple. It is further submitted that Tsing Wan Kun was a religious tong and does not belong to anyone exclusively.

58. The plaintiffs regard the 2nd defendant has wrongly represented their case and submit that it was never their case that as donors of land to Tsing Wan Kun, they retained ownership under customary law or as a result of the grant of the Block Crown Lease. Their case is that the land had always been held by Tsing Wan Kun before or after the grant of the Block Crown Lease and Tsing Wan Kun being an institution in the nature of a clan, family or tong is capable of holding land. The plaintiffs are members of this institution. The plaintiffs also refute the suggestion that Tsing Wan Kun is a religious tong without members on the ground that the system under s 13 of the New Territories Land Ordinance, 1905 would not work unless a tong has members.

59. We consider the description of land in the Block Crown Lease is not descriptive of the purpose for which the land had been granted but rather a description of the usage the land at the time of the grant. The fact that the lots on which Tsing Wan Kun was built is stated to be temple lots does not mean the land had been set aside for the support and upkeep of a temple. In any case, the land is held in the name of Tsing Wan Kun and is not held in the name of some idol for whom the temple has been built and dedicated. Thus, the land is not temple land within the meaning of the Lockhart Report but is land capable of ownership by a clan, family or tong. The fact that the various lots have been granted to Tsing Wan Kun as lessee, as we said earlier, must mean that Tsing Wan Kun was accepted as a clan, family or tong with members capable of holding land. The suggestion of the 2nd defendant is not sustainable.

Tsing Wan Kun temple ownership

60. A further suggestion advanced by the 2nd defendant is that Tsing Wan Kun was owned by a hereditary family of clergy and could not have been a temple in the private ownership of the To Clan.

61. However, the evidence is that under Chinese customary law, there can only be four types of temple ownership: ownership by all people of that faith such as a public monastery; ownership by a body of clergy residing and forming a pseudo-family there; ownership by individual or clan, family, lineage or tong and ownership by the residents of the area where the temple is established for their benefit. The judge found Tsing Wan Kun too small to be a public temple owned by all people of the Taoist faith and the fact that the To Clan controlled and used the temple is evidence to the contrary. There is no evidence to suggest that Tsing Wan Kun is a temple built and paid for by people of the area as to make it a communal temple. Further there is no evidence that Tsing Wan Kun has a family of clergy. The judge accepted the evidence that where the temple was held in ownership of a family of clergy, the temple property could be disposed of and the proceeds kept by the clergy. This defeats any suggestion that the temple was held on charitable trust since it would only be on charitable trust if the temple could not be used for any purpose but charitable purposes. The way the judge proceeded on the evidence and his conclusion that the temple was in private ownership are unassailable. The fact that Tsing Wan Kun was a temple for the advancement of religion or it was set up, undoubtedly, for religious purposes, does not ipso facto make the temple subject to a charitable trust.

Chinese Temple Ordinance, Cap. 153

62. Part of the 2nd defendant's case is that the Chinese Temple Ordinance, Cap. 153 applies to Tsing Wan Kun and its properties and when the Ordinance applies, the plaintiffs' claim fails.

63. The 2nd defendant's submission is that Tsing Wan Kun is part of Tsing Shan Monastery and a component part of a Buddhist institution. There is no evidence that it is run as an institution separately and independantly of Tsing Shan Monastery. Tsing Shan Monastery was registered under the Ordinance and the Ordinance therefore applies also to Tsing Wan Kun. Alternatively, if Tsing Wan Kun is an independent Chinese temple, it is registerable under the same so that the Chinese Temple Ordinance equally applies. The plaintiffs' claim of private ownership of the temple must fail and the judge was wrong to allow the plaintiffs' claim.

64. The plaintiffs on the other hand contend that Tsing Wan Kun has never lost its separate identity to become part of Tsing Shan Monastery for any purpose. There is no evidence that any of the properties of Tsing Wan Kun had been subject to the control of the Chinese Temples Committee. The history of the temple shows that since 1963, when there were protests by the To Clan against the sale of part of the properties of the temple, a matter which the Chinese Temples Committee had notice and should be concerned with, there was no indication by the Chinese Temples Committee that they would intervene. The evidence shows not only that the Chinese Temples Committee had been invited but decided not to participate in these proceedings but that they had decided not to exercise their powers under sections 7 and 8 of the Ordinance to assert control over the temple and require the transfer of the temple properties to them. The plaintiffs therefore submit that the Ordinance is not intended to apply to a clan or family temple in the New Territories and Tsing Wan Kun is not within the ambit of the Ordinance.

65. What the judge found is that the registration of Tsing Shan Monastery does not include Tsing Wan Kun and the two are distinct entities of land holding. He was of the view that by reason of section 13 of the New Territories Ordinance, Cap. 97 which provides for the recognition and enforcement of Chinese custom or customary right affecting land in the New Territories by the court in any proceedings in relation to such land, in the same manner as the Partition Ordinance, Cap. 352 has been found not applicable because partitioning the properties would be disruptive of the social structure of the clan (Tang Kai Chung & Anr. v. Tang Chik Sang & Ors. [1970] HKLR 276), the Chinese Temple Ordinance has no application to a Chinese temple owned and operated by a clan, family or tong in the New Territories. He also thought that if the income and property of a temple owned and operated by a clan, family or tong came under the control of the Chinese Temples Committee, this would be against the Chinese customary rights because that might lead to the property and income of the temple being used for a purpose different from that for which the clan, family or tong had been set up. He further found that the legislature had no intention that the Ordinance should apply to privately owned temples.

66. The Chinese Temple Ordinance clearly applies to all Chinese temples in Hong Kong. Section 5 requires registration before a Chinese temple can be established or maintained except those exempted under section 13 and specified in the Schedule. Section 7 of the Ordinance puts the revenues, funds, investments and properties of all Chinese temples under the absolute control of the Chinese Temples Committee. It also empowers the Committee to require transfer of the temple assets to the Secretary of Home Affairs Incorporated. The revenues from the operation of the temple would be applied first to observance of the ceremonies and the maintenance of the temple and the surplus would be transferred to the General Chinese Fund for Chinese charity in Hong Kong after deduction of all outgoings.

67. In our opinion, the wording of these sections are certain that the Ordinance applies to a Chinese temple wherever it is in Hong Kong until it exempted by inclusion in the Schedule by order in council. The speech of the Hon. Sir Shou Son Chow moving the Bill as reported in the Hansard relied upon by the judge, puts this beyond doubt. The legislator said:

"The Bill provides machinery by which this control can be made effective. The exempted temples, a list of which is contained in the Schedule to the Ordinance, are temples which were originally established by private individuals or particular families, and which are still maintained by the descendants of the original founders, and are managed unobjectionably, though, of course, the profits go to the private owners. One of these temples is the Tin Hau Temple, of Tung Lo Wan, which was established 180 years ago by the Tai family. The Governor in Council will have power to add to this Schedule in any proper case. I would draw attention to the fact that all Chinese temples whatsoever will have to be registered under the Ordinance when it becomes law. This is an obviously necessary provision to which no exception can be taken."

68. His reference to privately owned temples was only to those which were considered appropriate for exemption and it was not a general reference that all privately owned temples would be exempted from the application of the Ordinance. In fact, the plaintiffs in their submission have mainly contended that Chinese Temples Committee had never exercised their powers under the Ordinance in relation to Tsing Wan Kun nor participated in these proceedings to assert their control over the properties. The plaintiffs have not argued with conviction that the Ordinance does not apply to a Chinese temple in the New Territories. We are of the view that Tsing Wan Kun is certainly registerable under Chinese Temple Ordinance. Be that as it may, until the Chinese Temples Committee assert their control so that the surplus, if any, of the revenue of the temple may go to the Chinese Charity Fund and exercise their powers to require a transfer of the temple properties to them, Tsing Wan Kun remains the property of and under the control of whoever had ownership of it at the time. The fact that Tsing Wan Kun may be a Chinese temple registrable under the Ordinance and subject to the control of the Chinese Temples Committee does not affect the plaintiffs' claim of private ownership of the temple and indeed the Ordinance does recognise there are temples capable of private ownership. The application of the Ordinance does not make a temple which is not a charity or temple land not subject to a charitable trust a charity. The effect of registration is control, and the powers of the Chinese Temples Committee to apply surplus of the revenues of the temple for the purposes of any Chinese charity in Hong Kong does not transform the setting up of the temple to being for charitable purpose where that was not the purpose. The history of non-intervention by the Secretary for Home Affairs and the consistent refusal of the Chinese Temples Committee to assert their control and exercise their powers under the Ordinance is a fair indication that the Committee has not considered it desirable to disturb the Chinese customary rights of the clan, family or tong to the temple. In any case, this is not all that relevant to the claim by the 2nd defendant that Tsing Wan Kun is subject to a charitable trust.

69. In our view, the Chinese Temple Ordinance does not assist the 2nd defendant's case.

The question of charitable trust

70. In the light of the judge's conclusion that Tsing Wan Kun was beneficially owned by the plaintiffs, the question raised by the 2nd defendant that the temple was a charity or held on charitable trust does not arise for consideration. It is well established English law that a trust to be so qualified must be for objects exclusively charitable (see Dunae v. Byrne [1912] A.C. 407; A.G. of New Zealand v. Brown [1917] AC 393; A.G. of Bahamas v. Royal Trust [1986] 1 WLR 1001). Moreover, it is not argued, nor are we persuaded, that the institution of charitable trust exists in Chinese customary law or that there is any sufficient evidence that there is a law or custom of charity applicable to the New Territories that differs from the English legal concept of charity for exclusively charitable purposes. The plaintiffs' ownership of the temple prevents it from being a charitable institution. However slight the beneficial interest of the plaintiffs in the temple, in the sense as suggested by the 2nd defendant that the Tangs through the managership of Tang Po Yun have or may have a share or that the plaintiffs' predecessors had by virtue of the Sung Tip retained little interest in the temple after having given or granted for consideration a life interest in it to Chan Chun Ting, must also necessarily exclude the temple from being a charity.

Burden of proof

71. One of the attacks by the 2nd defendant on the judgment is that the judge failed to appreciate the significance of the burden of proof to be discharged by the respective party in the present case. The judge was wrong to find that there were rivalry claims between the plaintiffs and the 2nd defendant and that the 2nd defendant had a burden to prove a positive case.

72. What the judge decided was that in a case of this nature where each party put forward a different contention as to the beneficial ownership of the properties, it was only a matter of case management as to who should be made plaintiffs.

73. The submission of the 2nd defendant is that the burden is on the plaintiffs to prove they are the beneficial owners of the properties which are registered in the name of Tsing Wan Kun. Her role in the case as parens patriae does not involve a positive claim. Where private ownership is claimed in respect of land which may be subject to a trust for the benefit of the public, the 2nd defendant has locus standi to argue for public benefit against the claim. Reference is made to the Order of Godfrey J (as he then was) in March 1992 in the proceedings between the then Attorney General and the Secretary for Home Affairs Incorporated. The 2nd defendant submits that the Order was made on the basis that the properties in the name of Tsing Wan Kun were subject to a charitable trust and therefore she could argue against the claim for private ownership. It was not necessary for her to prove the existence of a charity before she could have locus standi in this case. But if the plaintiffs succeed in their claim of private ownership, the 2nd defendant's case would fail.

74. The plaintiffs submits on the other hand that the Order of Godfrey J did not bind the plaintiffs who were not parties to the proceedings between the Attorney General and the Secretary for Home Affairs Incorporated. In a case of the present nature, what the judge was required to do is to decide who beneficially owned the properties and it would not be right for the judge to consider the parties' respective case in any particular sequence.

75. We consider that the main issue in the present case is whether the plaintiffs are the beneficial owners of the properties registered the name of Tsing Wan Kun and held by the managers as trustees. If the plaintiffs succeed in proving they are the owners, then the claim by the 2nd defendant that the properties are subject to a charitable trust or Tsing Wan Kun was a charity would fail. If on the other hand the 2nd defendant could show the properties are subject to a charitable trust, then she succeeds. If she is unable to show charity or charitable trusts, she fails despite that there may be claims by other clans against the plaintiffs with respect to the properties.

76. The Attorney General in the proceedings before Godfrey J sought the appointment of the Secretary for Home Affairs Incorporated as trustees for sixteen plots of land registered in the name of Tsing Wan Kun which had been resumed by the Government so that compensations payable for the resumption could be paid and held by them for the benefit of whoever might subsequently be determined as the beneficiaries. The plaintiffs were not made parties to the application and the Order was obtained by consent and when the judge had not been fully informed of the circumstances of the case. The plaintiffs were not there to argue for or against the application and were not bound by the Order. Thus, although the plaintiffs in their claim also sought to set aside the Order, the Order has no bearing on the burden of proof in the present case.

Capacity of the plaintiffs

77. The last attack on the judgment is the capacity of the plaintiffs in these proceedings. The 2nd defendant submits that in the absence of a proper representation order under Order 15 rule 13 appointing the 1st plaintiffs to represent the members of To Ka Yi Tso and the 2nd plaintiffs to represent all members of the To Clan in Tuen Mun, the plaintiffs' authority to bring these proceedings is questionable. The basis of her submission is that the 1st plaintiffs - the three managers of To Ka Yi Tso - To Kan Chi, To Fuk Tim and To Kam Chau were not acting in unison in bringing this case. This is evident from the reluctance of the plaintiffs to call To Kan Chi to give evidence and To Fuk Tim for cross-examination on the history of the To Clan. The 2nd defendant also questions the representation of the 2nd plaintiffs on behalf of the To Clan. "To Clan" has been pleaded to mean "all the male members of the five villages who are descendants or successors of To Ka Yi" but it has not been shown that that expression exhaustively includes all the male descendants of To Ka Yi.

78. The point on capacity was not taken by the 2nd defendant in the court below. In any case, the effect of a representation order under Order 15 rule 13 is that persons represented by the party will be bound by the outcome of the action but will not be treated as parties for the purpose of discovery or costs although as between them and their representative, the question of costs is a matter of arrangement between them by contract or otherwise. There is, however, no requirement in the case of a person suing for himself and on behalf of other beneficiaries to apply for such an order.

79. The history of the proceedings show that the plaintiffs were allowed to join in the proceedings on the question of trust relating to the properties of Tsing Wan Kun and Tsing Shan Monastery because of their claim that the To Clan and members of the To Ka Yi Tso were the beneficial owners of Tsing Wan Kun. The managers of To Ka Yi Tso were named as the 1st plaintiffs because of the decision of Tang Yau Yi Tong and Tang Tsan Wa (manager) v. Tang Mou Shau Tso and others where the Court of Appeal directed that the manager of a Tso rather than the Tso should be the plaintiff in proceedings brought by the Tso. This was not objected to by the 2nd defendant. In any case, the plaintiffs are entitled to take out the proceedings for themselves as they are members of the To Ka Yi Tso and of the To Clan.

80. In our opinion, the fact that To Fuk Tin and To Kan Chi were not called by the plaintiffs does not go against their authority to act in their capacity as managers of the Tso to bring the proceedings for themselves as well as other members of To Ka Yi Tso.

81. The unchallenged evidence from one of the 2nd plaintiffs To Cheong Lam is that in accordance with their customs and traditions, membership of the To Clan and the To Ka Yi Tso is the same and that is every male member of the Clan. The residents of the five villages are descendants from the three sons of To Ka Yi and members of the To Ka Yi Tso are the males of such descendants. It is plain that the 2nd plaintiffs are representatives elected by the members of the To Clan in these five villages. The fact that To Ka Yi had a 4th son To Chun Mou is not relevant for all intents and purposes, the parties having accepted that there are only three branches of To Ka Yi's descendants existing of the To Clan settled in Tuen Mun and the plaintiffs are suing on their behalf. We do not consider the point taken by the 2nd defendant on capacity would assist her appeal in any way.

Appeal dismissed

82. For the reasons given above, we find no ground to interfere with the judge's conclusion. The appeal is dismissed. We will hear the parties on the 2nd defendant's appeal against the judge's order for costs and also on the costs of this appeal.

Representation: