MAK CHOW PO CHING AMY v. SIK CHUEN FAT and Others

1991 MP No. 2234

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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Introduction

1. The interesting question which arises in this case is whether a small area of land in Shatin on the hillside just the above the K.C.R. station is lawfully occupied by a number of Buddhist nuns and their followers. The Plaintiff who is the undisputed registered owner of this land asserts that the occupants are trespassers. She sought to recover possession from the first four Defendants using the summary procedure under Order 113. Those proceedings were later continued as though begun by writ. Defendants 5 to 11 joined as defendants. Pleadings were served. The matter eventually came on for trial.

2. The land now comprises two lots, Nos. 518 and 542. The latter was granted in return for the surrender of two other lots, Nos. 482 and 510. Two houses stand on the land : a small house on what was Lot 482 and a large house on Lot 518. The whole is known as Tsin or Gin Tan Lam (TTL). TTL appears to be a Buddhist hall and hostel for Buddhist nuns and their followers (known as "tsai koo") where a strict vegetarian regime prevails.

The case

3. The Plaintiff's case is simple. The lots were purchased between 1950 and 1952 by her mother Lo Wai Sin (Lo) who also financed the construction of the two houses. In 1968 Lo, by way of gift, assigned Lot 542 to her two daughters, the Plaintiff and Chau Po Wan. She made a similar gift of Lot 518 in 1968. In 1990, Chau Po Wan assigned her share in each Lot to the Plaintiff. In 1991, having discovered Defendants 1 to 4 in occupation of the land without any consent, the Plaintiff made the application under Order 113.

4. While admitting that the Plaintiff is registered owner, the Defendants plead that the money for the purchase of the land and construction of the houses was contributed by 15 ladies, being nuns and their followers (the contributories). The contributories engaged Lo as manager only. Hence Lo and through her, the Plaintiff, held or hold the land on trust for the contributories or their successors. The Defendants also plead adverse possession or, on the facts, proprietary estoppel. Separately, the 1st Defendant who is now the "Master" of TTL claims that as the adopted daughter of her former master, Lau Wai Kei (Lau), who was one of the contributories, she succeeded to Lau's estate; alternatively, that she was the recipient of a valid gift of that estate made by Lau in contemplation of her death.

The Defendants' case

5. I ruled that, the burden of proof lying in all essential respects on the Defendants, the Defendants should begin. It is convenient, therefore, to look first at the Defendants' case in detail. That detail was supplied by the 1st Defendant, the only Defendant to give evidence. By agreement, however, I also read the affidavits of Defendants 2, 3, 5-9 and 11. These Defendants are either very elderly or, in the case of D3 and 7, have died since the proceedings began. I am to attach such weight to their affidavits as I think proper. I should also mention that D4, unlike the other Defendants, is a man. Nothing is known about him or why he was present on the land. He played no part in these proceedings.

6. D1 was born in 1937. Her mother died when D1 was about 5. Her father was unable to look after her. Ultimately D1 was taken in by her aunt, Lo, and stayed with Lo's family until she was 11. She was, however, the object of some ill-treatment by the son of Lo's husband's concubine. Arrangements were made for D1 to accompany a close friend of Lo who often visited Lo's home in Jordan Road. That friend was Lau, an unmarried lady then about 46, who worked as a clerk in Po Lin Tung (PLT), another Buddhist hall or hostel for women which was situated very near the land where TTL was later established. Lo was a devout Buddhist who worshipped regularly at PLT.

7. With the approval of Lo and D1's father, D1 was informally adopted by Lau and became her daughter. Thereafter D1 stayed with Lau at PLT where she met and became familiar with many tsai koo including D3, 6 and 9. A tsai koo lives on vegetarian food, is unmarried or widowed and follows Buddha but has not shaved her head to become a nun.

8. It is apparently customary for a tsai koo to follow a master, that is, a Buddhist nun. A nun must have shaved her head and been "mortified" i.e. accepted and certified as a nun by the Buddhist authorities. Lau had a master at PLT while Lau herself was in effect D1's master. In the mid 1950's, D1, who was intent on becoming a nun, shaved her head. Lau's master told Lau that if she did not do likewise D1 would be given to another. Lau did shave. She was mortified first. D1 was mortified at Po Lin monastery on Lantau on 22nd August 1958. Her certificate recited that she "has followed master Wai Kei".

9. In the meantime, the land had been purchased. According to D1, Lau was finding PLT, whose residents occupied 7 tables, too noisy. In 1950, Lau took the opportunity to buy a piece of land from the Yau family. This was Lot 482. She intended to build a small house for quiet meditation. As I understand it, the small house was built and the land purchased in 1950, the funds being provided by Lau from her own resources. The land cost was about $3,000.00 and the cost of construction something over $10,000.00

10. The house was called TTL, a name suggested by Lau and two other senior tsai koo, being a quote from a Buddhist prayer, "the right road song". There was an opening ceremony at which the builder Chan Mui Sang, trading as Song Kee, presented a banner "to celebrate the establishment of [TTL] Monastery" and which was dated the 10th month 1950.

11. It was, as I find, at about this time that Lau suggested to a number of tsai koo that they should contribute to TTL. As a result, 15 persons including Lau and D1, 2, 3, 6, 7, 8, 9 and 11 agreed that each should contribute $2,000.00, totalling $30,000.00. Quite what these contributions represented I shall have to analyse later. It is sufficient to say that $30,000.00 was not actually collected because Lau paid for D1 and 2, who was also a teenager, and paid or loaned at least part of the contributions of others.

12. At about the same time, there was a ceremony in the small house involving Lam, D1 and four tsai koo at which Lo was appointed as manager of TTL, an appointment she accepted because she had a kind heart. At this ceremony Lo took an oath that the property (the house and land) was immovable (belonging to TTL and not transferable) and that she and her offspring would suffer misfortune if they betrayed. According to D1, that is why Lo had a stroke in 1972 and was partially paralyzed until her death in 1985.

13. Although never described as such, what Lau had established was a tsai tong, that is a vegetarian hall being a Buddhist establishment at which no meat can be eaten. It is occupied by tsai koo and is something short of a nunnery. It is akin to the better known tso or tong but its precise character and incidents are something I may have to investigate further if I find that the contributories provided the funds and that there was a trust so that the true identity of the beneficiary or beneficiaries becomes important.

14. At all events, the contributories felt they needed a manager to deal with the temporal aspect of TTL's affairs, leaving the tsai koo free to concentrate on matters spiritual. Accordingly, the conveyance of Lot 482, which was drawn up on a standard form supplied by the District Office and dated 15th September 1950, records the purchaser as "Lo Wai Sin, Manager for [TTL]", her address being given as PLT. The conveyance was witnessed by Lau.

15. The construction of the house included a balcony which overhung an adjoining lot and drew the attention of the District Office. To avoid pulling the balcony down, Lau ,Lo and D1 attended an auction on 8th January 1952 at the District Office, Tai Po and purchased the adjoining Lot 510 for $665.00. This also gave them a garden and avoided possible problems of access. The money came from surplus contributions. It was recorded that the purchaser was "[TTL] Lo Wai Sin manager".

16. After the house was occupied, D1's evidence was that 7 persons being Lau, D1, a servant called Sap Koo, and four other tsai koo lived there regularly. Of the other contributories, two went to China while others were still working and came to TTL only for ceremonies. A portion of the ground floor was let out at a rent of $300.00 per month.

17. The house quickly became too small. On 15th July 1952, Lau, Lo and D1 again went to a District Office auction and purchased Lot 518 for $3,120.00. The purchase money again came from money left over from the earlier contributions. The purchaser, however, was described simply as "Lo Wai Sin". This apparently occasioned some consternation at the District Office. A clerk, Li Fat to whom these ladies and their background was no doubt familiar queried with the judge (presumably the official conducting the auction) whether Lo should be described as manager. With some prescience, he said there might be a fight for subsequent generations. The judge, however, said it was not necessary because it was part of the same Lot.

18. The intention was to build a large house. As the cost was about $80,000.00 there was not enough money. It was a condition of the purchase however that a building had to be constructed. At the urging of the District Office, construction was put in hand. Although a number of the contributories discussed how it should be built, as with the small house Lau produced the money first albeit with the help of some substantial loans or donations. $10,000.00 was borrowed from a tsai koo who worshipped at TTL. It is said it was repaid. Some $24,000.00 was donated by a concubine of a well-known Hong Kong family. This concubine was one of the original contributories. After construction, Lau again suggested that the other contributories should make a contribution of $3,000.00 each in return for which they would have the right to live there with a room and food. Again, Lau paid for D1 and D2 and in part for D3 and D9. She also paid for some contributories who were in China.

19. The large house was occupied in 1955. Soon after, some of the contributories expressed the fear that after Lau's death, "there would be no proof that they were members of [TTL] and they were afraid they would lose their hard-earned money". Ten contributories including Lau, D1 , 6 and 11 attended a meeting at which it was decided to issue what have been called "permits". This document has a title which is not easy to translate but might be "TTL admission permit" or "entry share certificate".

20. It is not in dispute that this permit was copied from a permit issued by PLT, the copying and printing being done by the Plaintiff. The permit contains terms of membership of TTL and rules of conduct. The more important terms are :

"The terms and conditions of admission into and cohabition in Gin Tan Lam :

- Those who help the construction of this hostel by contributing a sum of HK$3,000.00 as construction costs may become cohabitors of this hostel and will be provided with a room along with boarding and lodging herein for rest of life but other personal expenses will have to be 'borne by oneself'.....

- The estate of the hostel members will be left over as benevolence merits and charitable contributions. The lay families shall not interfere with the estate.....

- 'The regular' hostel members who leaves the hostel and lives elsewhere 'must' return to the hostel at least once a year. If he cannot do so he may send his message back and keep the hostel informed of his whereabout otherwise on a lapse of three years his share of the room will be cancelled and an altar will be set up for him.....

- This agreement is made and with each party holding one copy as proof and the agreement should not be assigned to others."

21. At the end of the permit the officers of TTL were named. They were :

Manager	-	(Lo)
Vice Manager	-	Hui Wai Ching
Assistant Manager	-	(Lau) Wai Chan (a contributory) Ho Wai Fud (a contributory)

22. What happened to the permits after they were printed is in dispute. According to D1, Lau, in the presence of D1 and Lo, issued six permits in 1956 to D1, 2, 6, 8, 11 and another contributory. D2 and 8 were already in China and returned some years later. By devious means, these two Defendants apparently came to know that permits had been issued to them. Lau kept all these permits which were not seen again.

23. D1 and 2 never paid anything, their shares or contributions being paid by Lau. D8 paid only when she returned from China about 10 years ago.

24. D7's permit was issued to her also in 1956. She gave it to D1 at the commencement of this litigation.

25. D9, who had in fact made no contribution for the small house, had her permit issued in 1963 when she was able to pay $2,000.00. This reduced sum was because she had worked at TTL for some years before going out to work. Lau had apparently decreed that if a person worked at TTL for 10 years she would be admitted and get a permit without having to contribute.

26. A permit was issued to D3 in 1968 on payment of $2,000. This arrangement was similar to the arrangement with D9.

27. Also in about 1956, a permit was issued to the family which had contributed $24,000.00. This permit contained an acknowledgment of the family help and assigned them an altar for the permanent worship of their ancestors.

28. A permit was also issued to a non-contributory, Tse Tsuen Yuk who made a payment of $3,000 in 1963 and who was the sworn mother of D9. She began to live in TTL in about 1978 and remained there until she died. D1 could not remember the date of her death.

29. Permits were not issued to D5 and D10. D5 was not a contributory nor was she admitted. She came to stay in 1975. D10 came to stay in 1988. Both were frightened by the litigation and left TTL.

30. The Plaintiff had no idea that any permits at all had been issued. After she had completed printing about 50 permits, Lo asked her to look at the contents. Then for the first time, the Plaintiff appreciated and explained to Lo that the permit would allow a person to stay for life not just short term and would raise problems. At about the same time, Lo asked her to look at a document Lo had obtained when she went to the auction of Lot 518. This document in Chinese was entitled "special regulations for sale of Crown land". These regulations contained a provision in relation to housing lots (which Lot 518 was) that any house built should not be used as a tsai tong or for similar purposes except with permission of the District Office. Although she did not know whether or not TTL was a tsai tong, the Plaintiff appreciated there was another problem and so informed Lo. After discussion, Lo gave up her idea of admitting people. Lo took away the permits and kept them at TTL until 1972 when after her stroke she fetched them from TTL and brought them to the Plaintiff's home in a parcel which she stored in a drawer. Lo explained to the Plaintiff that she was afraid she could not go to TTL as often as before and that there might be chaos. When the Plaintiff opened the parcel after the litigation began, she found it contained over 20 unissued permits.

31. Returning to the Defendant's case, from 1956 until Lau's death TTL carried quietly on. Lau and D1 lived there with other tsai koo and divided their time between TTL and PLT. Lo visited from time to time particularly for ceremonies. Once a month, Lo would bring about $1,000.00 with her which was used to pay utility bills and for other necessaries. The actual payments were made by the servant Sap Koo. The money to fund these payments came from donations and from the rent of the small house. These were kept by Lo in a bank account from which she would draw funds as necessary.

32. The utilities themselves were initially in Lo's name. Later some were changed, for example, when a larger electricity meter was needed, D1 had to pay a larger deposit. The account was transferred to her name.

33. Lau died in 1971. It seems to have been assumed that D1 would succeed Lau as master of TTL, partly because of their relationship and partly because Lo had many years before told D1 to shave her head and take over TTL. Lau emphasized this during the 9 days she was in hospital before her death. She told D1 that the permits were under her bed at TTL and that she could admit new persons but not charge any money as there were enough funds. Further, D1 was to occupy her room after one year had elapsed.

34. It turned out that Lau's room or bed area was infested with termites. D1 could not stand them and arranged for a man to throw everything away. Consequently the permits were never seen again.

35. Then in 1972, Lo arranged a feast at TTL to inform everyone that D1 was in charge. Invitation cards were issued reading "...the ceremony for promotion of my niece Chuen Fat to be the supervisor of the institute..." It was "from [TTL] master Sik Wai Sin", that is Lo. Lo was entitled to the name "Sik", given to the followers of Buddha who shaved their heads, because for a period of 7 days, Lo did shave. This is where there appears some convergence between the parties. Lo had had a stroke in 1972. After leaving hospital, she was living with the Plaintiff at the Plaintiff's home. She went missing one evening and was subsequently located at a house near 9 1/2 milestone Tsuen Wan with a lot of other people. She had shaved her head. To persuaded Lo to come home, a feast was arranged and paid for by the Plaintiff's sister. It is appears to me that the ceremony promoting D1 as supervisor and the feast arranged for Lo were perhaps one and the same.

36. Until the following year 1973, Lo continued to visit TTL accompanied by the Plaintiff. Thereafter, visits ceased until 1991 when the Plaintiff reappeared and delivered a lot of documents. Only then did D1 discover that Lo had transferred the land to her daughters. Had she realised this, she would not have spent large sums over the years. In 1972, she had spent $200,000.00 to repair a retaining wall and $300,000.00 on a balcony. In 1988, $700,000.00 on decoration. The funds came from rent and contributions for prayers and ceremonies.

The Plaintiff's case

37. The Plaintiff was born in 1932. She had one sister. Her mother Lo could have no more children but felt it important there be a son in the family. Lo's husband therefore took a concubine in about 1939. It was not, however, something about which Lo was happy and she went to live at PLT where her close friend Lau also lived. Both were devoted Buddhists. Lau had visited the family home at Jordan Road.

38. The Plaintiff's father persuaded Lo to return home. He promised that if he had the chance he would build Lo a retreat where she could worship instead of going into a tsai tong.

39. The Plaintiff confirmed that D1 lived with her family after her mother died until about 1948 when Lo paid for her to be admitted to PLT. Lo loved D1 who was being treated as a servant by the concubine and did not want to see this happen. The Plaintiff herself was being educated in Hong Kong and China until 1951 when she was found to have TB. After her TB was brought under control, in January 1952 she went to stay at the small house at TTL to recuperate. She stayed for 1½ years. During that time only the Plaintiff, Lo, Lau and the servant Sap Koo stayed there. To begin with, she mostly slept. Later she strolled in a garden. She practised on a piano which had been rented by her father for her. Occasionally friends visited and sometimes they had what were described as dancing parties but in reality were no more than some slow waltzes to a wind-up gramophone.

40. According to the Plaintiff, Lo earlier had told her that she had bought and paid for Lot 482, the money coming from savings and money given by the Plaintiff's father on this occasion. Lo explained she was named as manager because she was afraid the concubine or her family might possess it in future. She said she intended to build a house for a retreat where good friends could come and stay for a short time to worship although her close friend Lau could live there for any period she liked. The Plaintiff remembered seeing plans for the house and that Lo said she had asked Chan Mui Sang to build it.

41. The Plaintiff said Lo also explained how she came by the name TTL. It came from a Buddhist prayer "trees are thickly grown where lions live". In other words, TTL represented the forest were Lo could study and worship quietly like the lions who would not be interrupted by people from outside.

42. While the Plaintiff was staying in the small house, Lo also told her she had bought garden Lot 510 at auction in order to ensure access. She did not tell the Plaintiff she had bought it as manager. The Plaintiff did not learn this until the litigation began. Later on, Lo told the Plaintiff she had bought Lot 518 at auction, again with her own money. There would not be enough room in the small house if many friends came so a larger house would be built. It would be both for the family and for friends to worship.

43. Lo obtained a quote from Chan Mui Sang for a house but her husband died at the end of 1953 so nothing came of that quotation. There is a quotation dated about April 1953 for $102,600.00 addressed "to [TTL] aunt Lo Wai Sin". Then in 1953, Lo had an architect draw up new plans and Chan built the large house for which Lo said she paid. A quotation was issued to "[TTL] second aunt Lo Wai Sin". Of 15 receipts for work, 4 were issued to Lo, one to Lau and 10 in their joint names. The occupation permit was issued to the architect in October 1956 in respect of a building for domestic purposes and for "the owner : Mr. (sic) Lo Wai Sin of Shatin".

44. Although the Plaintiff left the small house in the summer of 1952, she continued to visit at weekends and holidays. She remembered the construction of the large house, the dust being unpleasant. When it was completed, she began staying there, she and Lo on the first floor, Lau and Sap Koo on the ground floor. There were other rooms for guests for short stays after worshipping. After that, the Plaintiff took no interest in the small house again until the litigation began. She said Lo told her it was private property, meaning it belonged to them.

45. In 1959, there was the surrender and regrant. The new Lot 542 involved an additional 3,500 square feet and a premium of $7,000.00. The Plaintiff said Lo told her about the regrant and that she had paid the premium.

46. On 24th December 1963 the New Territories Land Office issued a notice that :

"according to the claim by the Manager of Gin Tan Lam Cho/Tong, Pei Tau Hang Chuen, Shatin, Lo Wai Shin that (she) intends to give the following property of the said Cho/Tong to her daughter Chau Po Ching, Chau Po Wan. If anyone considers that this is not appropriate with intention to object, (he) shall report to the Land Office within one month from the date of this Notice so that decision can be made thereon. The said property is as below Lot No. 183, Garden, House No.542

It is claimed that the said Tong belongs solely to Lo Wai Shin."

47. The words underlined were preprinted. It was completed in manuscript. There is no evidence as to whether it was published. Nothing however seems to have come of it.

48. The notice was repeated on 7th August 1968. This time it said that Lo "intends to cancel the title of [TTL] and include the following property under her name". It was claimed TTL (rather than the "Tong") belonged to Lo. Again, there is no evidence if or how it was published. Then on 17th October 1968, Lo, the Plaintiff, her sister and Lau went to the District Office, Tai Po, where Lau executed a deed of gift of Lot 542 which had been prepared by the District Office in favour of her daughters. Lau witnessed the execution. There was a similar exercise on 22nd January 1969 in respect of Lot 518.

49. According to the Plaintiff, Lau explained to the Plaintiff and her sister that she and their father had purchased the land with great difficulty. The land was to go to their daughters after her death but, by transferring it before her death, she need not pay estate duty. Lo also said she and Lau were getting old, that she was managing the property but did not wish to do so any more, and was giving it as a gift.

50. The Plaintiff's evidence also was that at the District Office an explanation was given in Cantonese on each occasion to the effect that the land was being transferred by Lo to her daughters. The deeds themselves were kept by the Plaintiff's sister until September 1990 when she transferred her shares to the Plaintiff because she was intending to go to England and it would be difficult to come and go.

51. In 1991, the Plaintiff had the idea to claim the land back. She paid a visit and found it was chaotic. She said many women were living in the big house and also a man (D4). Paradoxically, she did not look in the small house. She asked D1 to show her but the door was locked and she saw no reason to go in because it was private property. The Plaintiff explained that she meant it belonged "to us for our purpose and not for another".

Resulting Trust

52. It is perfectly clear that the 14 contributories other than Lau did not make their contributions, if they made any at all, towards the purchase of the land and construction of the houses. On each occasion, it was not until after the houses had been constructed that Lau made this suggestion about contributions. In my view, the contributories were seeking security for a place either to live and carry out religious functions or to spend their retirement years. If contributions had been made as D1 suggested, the permits would surely have recorded total contributions of $5,000.00. There must at least be some doubt as to whether there was any earlier contribution. In some cases, including that of D1, no contributions were made at all, Lau apparently paying on their behalf.

53. So the issue simply became whether Lo or Lau produced the cash to fund the purchases. As to this, the evidence of both the Plaintiff and D1 must be suspect, amounting to no more than being told by Lo or Lau.

54. Either Lo or Lau could have produced the money for Lots 482 and 510 and the small house. Lo's husband was quite well to do before his death, having both meat and restaurant businesses. D1 suggested vaguely that there were money problems after the husband's death. I find nothing in that. The Plaintiff's evidence was of a plan to build on Lot 518 in 1953 but that this was aborted on Lo's husband's death. There is a quotation dated 28th May 1953 issued to Lo for a three-storey house at a price of $102,000.00.

55. Lau too could have saved the money over the years. Ladies of her character were notoriously thrifty.

56. So I look to the documents. The conveyancing documents seem unambiguous. Those relating to Lots 482 and 510 support D1's contention. That relating to Lot 518 suggests a private purchase by Lo. There was in evidence, however, a copy of a minute sheet obtained from the District Office which contains some interesting entries. On 12th December 1950, it noted that Yau Shu Shang had applied for permission to sell Lot 482, he being apparently trustee of some family trust. Permission having been given on 15th December 1950, it was noted that :

"the house on the above Lot (auction) was sold to Lo Wai Shin of [PLT] for $20,000.00 today".

57. Then on 20th December 1950, there was a suggestion that "in view of the fact that 15 people put up the money for sale of the lot a Tong or Cho with perhaps Lo Wai Sin as trustee should be registered".

58. A few days later on 29th December, five of the contributories including Lau called at the District Office when :

"They were inquired about their shares of the house and they all confirmed that they had surrendered their shares to Lo Wai Sin who has alleged herself to be the sole owner. However, the house is registered in the name of [TTL] Lo Wai Sin manager, as it has been amended the other day through your instruction".

59. It was argued for the Defendants that what happened was this. Lau had acquired the land privately from the Yau family for $3,000.00 and spent $10,000.00 odd building the small house. She then realised that District Office approval was needed for the sale to be effective and, rather than registering 15 names, reached agreement with Lo to put it in her name as manager. This, it was suggested, would have avoided heavy estate duty, the need for an auction and red tape generally.

60. I find some difficulty in accepting that. According to the minute sheet, the sale was by auction as the price suggests. Further it is clear from D1's evidence that the contributories came into the picture only after the house was built. So certainly they were contributing, but to their peace of mind in future rather than to the purchase of land and house. That would explain why they apparently "surrendered their shares to Lo" - they were acknowledging Lo as owner and their limited interest.

61. Also obtained from District Office records was a copy of the list of members of a Tong or Cho. The name of the owner was "[TTL] Lo Wai Sin, manager". Membership was recorded only as "Lo Wai Sin sole owner".

62. Subsequently, after giving due notice, Lo transferred the properties to her daughters. I find it difficult to understand how a lady, who was by common consent a loving, honest and devoted lady, should suddenly go back on her oath and, not to put too fine a point on it, steal another's land.

63. Mr. Wong for the Defendants suggested that in effect Lo was just passing responsibility for management to her daughters. That too I find difficult to accept. The District Office was clearly alive to the relationship between Lo, Lau and TTL. It seems likely that the District Office which prepared the documents would have been careful to ensure that the exact nature of the transfer was accurately recorded in order to avoid yet another of the disputes that notoriously affect New Territories land.

64. Further, if no more than management was being transferred to the Plaintiff and her sister, it is surprising that neither of them was ever involved. I would have expected them, or one of them, to have become banker and taken over responsibility for the utilities and other outgoings. As it was, the only matter the Plaintiff apparently ever dealt with was a demand for Crown must.

65. There are miscellaneous quotations, receipts and other documents relating to the land in the name of Lo or Lau or both, and in the name of others. Of themselves, they do not throw weight one way or the other. They do, however, suggest a very close relationship between Lo and Lau.

66. The evidence of the Plaintiff and D1 was almost totally irreconcilable. Thus D1 denied that the Plaintiff ever stayed at either house and said she certainly did not spend a protracted period there recovering from TB. Nor did she hold dancing parties in what was a religious establishment. I find it difficult to believe that the Plaintiff made up this evidence. I note that the dancing parties were hardly lively, just or three or four people doing little more than enjoying music. This does not seem to me to be untoward considering that, from the outset, part of the small house was let purely for domestic purposes and provided a small rent which, according to D1, helped pay for the costs of Lots 510 and 518.

67. On D1's own evidence, she had and has a close connection with the neighbouring establishment PLT. She is a director of the company which owns the land and buildings. She commonly gives PLT as her address. She spent and spends considerable time there, not least assisting a doctor who attends each week.

68. At first sight, it is surprising that the Plaintiff and her sister did nothing about the property once it was transferred to them, particularly as neither of them seem to have approved of Lo's Buddhist activities and companions. That would seem to suggest a recognition that TTL was not Lo's or later their property to do with as they pleased. The Plaintiff explained, however, that she was content to respect her mother's activities and not undo what she had done. Thus, once her mother had had a stroke in 1972, she only paid one or two visits to TTL, being preoccupied with her own affairs until 1991 when, following her sister's transfer to her, she went to see the property and was dismayed by what she found.

69. On the totality of the evidence, I am not persuaded that Lau provided the money for the various acquisitions. Lo and Lau were very close. Lo was both anxious to distance herself from her own family and to see Lau and D1 settled. It seems to me more probable than not that Lo provided funds to establish a place where she could retreat and apply herself to her devotions and at the same time provide a place for Lau, D1 and a few others of a like persuasion whom she would be happy to assist in their declining years. She plainly intended to set up some sort of institution, hence the introduction of TTL in the conveyancing documents and the registration of a "Tong or Cho". I have no doubt she would have registered other members if they had truly contributed but, as the whole enterprise was hers alone, she scrupulously registered only her name. It is not, therefore, surprising that five contributories went to the District Office to clarify the position.

70. Although the Plaintiff may have drawn Lo's attention to the problem likely to be caused by the permits, there seems little doubt that Lo, as an honourable lady, was content to countenance their issue at least to those who had already "joined" TTL. I reject the existence of a resulting trust.

Proprietary Estoppel

71. It is helpful to step back to see the broader picture of TTL. As I have found, TTL was funded by Lo to enable her to pursue her Buddhist believes and devotions, and to provide a place to which her family could resort. The former aim was undoubtedly more important. The spiritual and day-to-day management was committed to Lau as master. Although Lo assumed the title as manager, I take the view that it was little more than a title and that Lau, and later D1, was effectively in charge of TTL's affairs.

72. I have no doubt Lo was content that a limited number of tsai koo should be allowed to join TTL on a permanent basis. That would accord with her Buddhist beliefs. I reject entirely the Plaintiff's evidence that Lo told her that she contemplated short visits only. Indeed, it is clear to me that the Plaintiff was exasperated by Lo's Buddhist activities but was sufficiently respectful of Lo's wishes that she did not interfere. It is no doubt why she took little or no interest in TTL after Lo had her stroke so that visiting TTL became too difficult. Whether the Plaintiff's last visit to TTL before 1991 was in 1972 or 1974 or 1977 is, to a large extent, immaterial.

73. I have no doubt Lo knew and approved of all the contributories. I have no doubt she was content, and expressed that content, that they should become members of TTL. I have no doubt Lo decided to issue permits. I have no doubt that, despite the Plaintiff's misgivings, permits were issued with Lo's privity and consent to those contributories identified by D1, i.e., D1 herself, D2, 3, 6, 7, 8, 9 and 11. I make that finding notwithstanding that, while D3 , 7 and 9 mentioned their permits in their affidavits in opposition to the Order 113 application, the other five permit holders did not. It is hardly surprising. Those affidavits were prepared for summary proceedings before intensive investigation had got underway.

74. It is clear, therefore, that in these cases the elements of proprietary estoppel are satisfied. To their detriment, these Defendants have paid money or provided services. Money has been expended on the upkeep of TTL. This can only have been in the belief that their future at TTL was secure. That belief was plainly encouraged by Lo's conduct in setting up and allowing to continue the establishment which she did ; and was confirmed by the issue of the permits.

75. I am in no doubt that, in those cases, the Defendants acquired a life interest that entitled them to remain in TTL until their death if they wished.

76. D3 and 7 have died since the proceedings began. Their interest died with them.

77. D5 and 10 acquired no interest. According to D1, D5 only came to TTL in 1975 but made no contribution and was not formally admitted. D10 only came to stay in 1988. Both ladies have taken fright at the proceedings. D5 has gone to stay in an old age home. D10 has gone to China. In my view, neither acquired any interest.

Adverse Possession

78. The critical date is 5th August 1971, i.e., 20 years before the Plaintiff commenced proceedings.

79. On the evidence, neither D5 nor D10 have extinguished the Plaintiff's title.

80. As to the remaining Defendants apart from D4, they were, as I have found, exercising a right to remain in possession until their death, a right wholly consistent with Lo's aims and wishes and which the Plaintiff until latterly was content to respect.

81. That is not adverse possession : see Man Kam-tong v Man Lin-tai (1984) HKLR 181. The Plaintiff's title has not been extinguished.

Gift

82. D1 claimed that Lau made her a gift of Lau's share or beneficial interest in contemplation of her death. As Lau had no share to give there is nothing in this claim.

83. Had this been an issue, then I would have accepted that Lau, by telling D1 to shave her head and take over TTL, by confiding the whereabouts and security of the permits to D1, and by giving D1 instructions generally about TTL had made an effective gift of her share.

Succession

84. D1's claim that she had inherited the estate of Lau is also academic. Had it been necessary, I would not have upheld this claim.

85. There is no doubt that Lau and D1 were in a master and pupil relationship and that Lau informally adopted D1. Dr. Henry Hu, who gave expert evidence on behalf of D1, was of the opinion that such adoption was valid. Its purpose was to strengthen their relationship. It would also make doubly sure that D1 as pupil would succeed to Lau's property. He was however of the view that a pupil inherits her master's properly any way.

86. I also read the opinion of Mr. H. C. Miu who was unfortunately unable to give evidence. It was agreed I should attach such weight to this opinion as I see fit. Mr. Miu said there is no provision in the Tsing Code or in Chinese custom for a pupil to inherit a master's property. Further, on Lau becoming a nun, the adoptive relationship ceased and, in any event, the informal adoption did not confer a right of succession.

87. Dr. Hu said that if Mr. Miu is right, the purpose of the adoption would be destroyed. He pointed it out that normally when a woman becomes a nun she severs ties with her family including any adopted daughter. Here, however, Lau and D1 were already living in a tsai tong so that effectively they were and remained in the same family.

88. I have to say that I see a measure of inconsistency. If a woman becomes a nun she forsakes all conventional family ties and temporal matters. I do not see how she can then retain or enter an adoptive and therefore family relationship. Certainly, a master and pupil relationship can co-exist with an informal adoption. I am not persuaded, however, that an adoptive relationship can either be continued or initiated once the master becomes a nun.

89. It is clear from Dr. Hui's evidence that informal adoption is used to make sure that the daughter or pupil will inherit. If it is necessary to do this, there must be at least some doubt as to whether a pupil can properly inherit. There is no authority on the point although Dr. Hu informed me that it is the custom in nunneries. He added, however, that the custom "may not be sufficient legally so, to be double sure, there is informal adoption".

90. Clearly, this is an area where there is considerable uncertainty. I would not have been persuaded that D1 could have inherited Lau's property.

Conclusion

i) I find that Lo provided the money for the purchase of both land and houses. I reject the claim that there was any resulting trust.

ii) I find that adverse possession has not been established.

iii) D1's claim based on inheritance would not have been made out although I would have upheld the claim based on gift.

iv) The claim in proprietary estoppel has been made out by D1, 2, 6, 8, 9 and 11.

v) The counterclaim for declarations that the Plaintiff has no title or that her title was extinguished or that she was holding on trust is dismissed.

vii) I make a declaration in favour of the Plaintiff that she is entitled to possession of the land subject to the right of D1, 2, 6, 8, 9 and 11 to continue to reside there until their respective deaths.

viii) I will hear counsel on the question of any further relief that might be required, and on costs.