TSANG KA FAI as Manager of TSANG CHEONG WANG TSO v. TSANG WAN KIU AND OTHERS

HCA 1769/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1769 OF 2006

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JUDGMENT

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1. This is a claim for possession of land. The plaintiff is the sole manager of one Tsang Cheong Wang Tso (曾昌宏祖) (“the Tso”), and the Tso is the registered owner of Lot No 453 in Demarcation District No 131, New Territories (“the Lot”), which is situated in the village of Yeung Siu Hang (楊小坑) in Tuen Mun. The plaintiff claims that the defendants had wrongfully occupied Houses Nos 51 and 52 (“the Houses”) in the Lot, and he therefore commenced the present action against the defendants to claim for an order of vacant possession of the Houses and mesne profits associated with their wrongful occupation.

2. The plaintiff has already entered default judgment against the 2^nd and 3^rd defendants, and so this is only the trial in respect of the claim against the 1^st defendant.

History of the proceedings

3. This case has a rather protracted history.

4. The plaintiff issued the writ herein on 15 August 2006.  On 30 August 2006, the Director of Legal Aid (“DLA”) refused the 1^st defendant’s application for legal aid.

5. The 1^st defendant then filed the acknowledgment of service on 31 August 2006.  On 7 February 2007, the plaintiff entered default judgment against the 2^nd and 3^rd defendants.

6. In 2007, a solicitors’ firm started to represent the 1^st defendant.  The case then proceeded as usual with the trial date fixed on 9 December 2009.

7. On 28 September 2009, the 1^st defendant filed the notice to act in person.  In the PTR on 21 October 2009, DHCJ L Chan (as he then was) vacated the trial date in December 2009 and granted leave to the 1^st defendant to amend her Defence and Counterclaim.  On 16 November 2009, the 1^st defendant filed a home-made Amended Defence and Counterclaim.

8. The new trial date was in February 2011.  In the direction hearing before Lam J (as he then was) on 19 November 2010, the 1^st defendant’s son, Wong Kat Chung (“the 1^st defendant’s Son”), informed the court that the 1^st defendant was suffering from dementia and so there was some doubt about the mental and health condition of the 1^st defendant.  Lam J ordered the 1^st defendant to submit a medical report about her mental condition.

9. In the PTR on 9 December 2010, Lam J made an order to adjourn the trial date in February 2011.

10. The medical report then filed by the 1^st defendant showed that the 1^st defendant’s condition was satisfactory and she was not suffering from any disability that would impair her mental condition.  In fact throughout the trial, I do not find that the 1^st defendant is suffering from any sort of disability.  She has no difficulty in answering any questions put to her during cross-examination.

11. On 4 August 2011, the 1^st defendant applied for legal aid and the legal aid certificate was granted on 19 August 2011.

12. There were then some interlocutory applications and the case came before me on 15 December 2011 and 19 June 2012.

13. On 17 April 2012, a notice of change of solicitors was filed on behalf of the 1^st defendant.  The new legal team for the 1^st defendant took out a lengthy summons dated 14 August 2012 (“the Summons”) for, inter alia:

(i) leave to further amend the Defence and Counterclaim;

(ii) leave to file expert evidence on various issues relating to Chinese customary law; and

(iii) leave to conduct DNA test about the blood relationship between the Ancestor and the plaintiff.

14. In the CMC on 21 August 2012, I adjourned the Summons for argument.  In the subsequent CMC on 26 November 2012, I ordered the 1^st defendant to produce draft expert report on Chinese customary law and DNA test report in order to assist the court in determining the Summons.

15. On 13 June 2013, another notice of change of solicitors was filed on behalf of the 1^st defendant, and so a new legal team appeared for the 1^st defendant in the hearing before me on 19 June 2013.  In that hearing, the 1^st defendant asked for an adjournment of the Summons.  I granted the application.

16. The Summons came before me again on 16 August 2013.  In that hearing, I granted leave to the parties to file expert evidence on Chinese customary law and additional witness statements.  However, I refused the application for leave to adduce DNA test report.  I adjourned the application for amendment of pleading and gave directions for the filing of affirmations for such application.

17. The DLA filed a notice of discharge of legal aid relating to the 1^st defendant on 27 August 2013, and as a result she appeared in person before me in the hearing on 3 September 2013.  In that hearing, I granted leave to the 1^st defendant to further amend the pleading and to file additional witness statements.

18. The case came before me for PTR on 18 October 2013.

19. On 22 October 2013, the 1^st defendant took out another summons asking for, inter alia, leave for the further amendment of the pleading and the right of audience be granted to the 1^st defendant’s Son.

20. It is trite law that a McKenzie friend can only assist a litigant in a hearing and a McKenzie friend enjoys no right of audience.  In such circumstances, I refused the 1^st defendant’s application for the granting of the right of audience to the 1^st defendant’s Son.  Nevertheless, the 1^st defendant’s Son has assisted the 1^st defendant throughout the trial.  On some occasions when the court wants to save some time in the making of the submissions or the asking of questions, I have allowed the 1^st defendant’s Son to address the court directly.  However, this is not the norm.

21. At the commencement of the trial, I granted leave to the 1^st defendant to further amend the pleading.

Background and issues of the case

22. Having outlined the history of the proceedings, I now turn to the facts of the present case.

23. According to the record in the Land Registry (Memorial 90645), the Tso was formed in 1934 in the name of the ancestor known as Tsang Cheong Wang (曾昌宏)(“the Ancestor”).  Further, the record shows that the Ancestor had executed a land transaction document relating to Lot No 270 in Demarcation District No 131 in 1931, and so the Ancestor must have died some time in the period from 1931 to 1934.  The Ancestor’s wife was known as Liu Jiu (廖招) (which is disputed by the 1^st defendant) and she died in around 1969.

24. In 1934, 5 lots of land were registered under the name of the Tso including the Lot.  One of the properties of the Tso, Lot No 268 in Demarcation District No 131, was sold by the then managers of the Tso in 1960.

25. It is the plaintiff’s case that one Tsang Ah Fat (曾亞發) was the natural son of the Ancestor.  Tsang Ah Fat had a natural son called Tsang Hung Yau (曾洪有), who had 3 sons including the plaintiff who was the eldest.  In other words, Tsang Ah Fat is the grandfather of the plaintiff.

26. The Ancestor had a brother known as Tsang Cheong Yip (曾昌業), also known as Tsang Mun (曾滿).  One of his sons, Tsang Wing Shing (曾永勝), also known as Tsang Wan Shing (曾温勝), was adopted by the Ancestor.  The wife of Tsang Wing Shing was Li Kiu (李嬌). Tsang Wing Shing had 2 sons and 4 daughters including the 1^st defendant.  Unfortunately, Tsang Wing Shing’s 2 sons died in 1947 and 1959 respectively, and so there is now no male issue descending from Tsang Wing Shing.  Tsang Wing Shing died in 1963 or 1964, and Li Kiu died in 2004.

27. There are therefore two fongs (房), or branches, of the Ancestor: one descending from Tsang Ah Fat and the plaintiff is one of the members of that fong; the other one descending from Tsang Wing Shing and the 1^st defendant is one of the members of that fong.

28. In 1934, one of the members of each fong, namely Tsang Ah Fat and Tsang Wing Shing, were appointed as the Sze-Lei (司理) or the managers of the Tso.  Tsang Ah Fat died in about 1955, and his son Tsang Hung Yau succeeded him as a co-manager of the Tso.  On the other hand, Tsang Wing Shing died in about 1964 and his wife Li Kiu became a co-manager of the Tso with Tsang Hung Yau.  Tsang Hung Yau died in 1989 and the plaintiff succeeded him as a manager of the Tso in 1990.  Li Kiu died in 2004.  Ever since 1983, Li Kiu had been writing to the District Office for the appointment of one of her daughters, Tsang Wan Ho (曾運好), as her successor of the manager of the Tso but was not successful.  Hence, the plaintiff is now the sole manager of the Tso.

29. It is the plaintiff’s case that the Tso in 1961 granted a bare licence to Li Kiu to occupy the Houses.  However, such licence expired by the notice contained in a letter dated 7 January 2005, or alternatively, the licence expired by the operation of law upon the death of Li Kiu.  In such circumstances, the plaintiff alleges that the Tso is entitled to claim back the possession of the Houses from the defendants.

30. According to the latest version of the Defence and Counterclaim filed by the 1^st defendant, she has put forward the following grounds of defence to oppose the plaintiff’s claim.  Firstly, the 1^st defendant claims that the plaintiff is not a descendent of the Ancestor by blood, and so the plaintiff does not have the locus to sue on behalf of the Tso which was formed in honour of the Ancestor.  Secondly, the two fongs of the Ancestor had made an agreement to spilt the properties of the Ancestor in 1934 (“the Fan Ga Agreement”).  The Houses are located on the land allotted to the fong of Tsang Wing Shing under the Fan Ga Agreement, and so the plaintiff cannot claim for the possession of the Houses.  Thirdly, in reliance on the representation given under the Fan Ga Agreement that the land on which the Houses were situated belonged to the Tsang Wing Shing’s fong, the members of that fong had spent considerable money in building the Houses in 1961.  In such circumstances, the plaintiff is estopped from claiming possession of the Houses based on the principle of proprietary estoppel.  Fourthly, there was a mistake in the records in the Land Registry and the District Office, and the Tso, which is the subject matter of the claim, was actually not formed in honour of the Ancestor.  Instead, the focal ancestor of the Tso was Tsang Cheong Yip, i.e. the Ancestor’s brother.  As the plaintiff is not a descendent of Tsang Cheong Yip, he has no locus to maintain the present claim against the 1^st defendant, who is a descendent by blood of Tsang Cheong Yip.

31. At one stage of the proceedings, the 1^st defendant did try to raise the defence of adverse possession.  However, as such defence does not appear in the latest version of the 1^st defendant’s Defence and Counterclaim, it is common ground that adverse possession is not an issue in this trial.

32. The 1^st defendant has also lodged a counterclaim against the plaintiff claiming for, inter alia, a declaration that Tsang Wing Shing, the 1^st defendant and her family are the legal and beneficial owners of the Houses.

The nature of a tso

33. Before I deal with the specific defences of the 1^st defendant, I would set some of the legal principles about the nature of a tso.

34. A tso may be described as an ancient Chinese institution of ancestral land-holding whereby land derived from a common ancestor is enjoyed by his male descendants for the time being living for their lifetimes and so from generation to generation indefinitely.  Thus every male descendent of the common ancestor automatically becomes entitled at birth to an interest in the land for his lifetime; on his death his interest merges so as automatically to enlarge the interests of the surviving male descendents; thus his interest at any given moment during his lifetime depends on the number of male descendents then living and on his death it forms no part of his estate (see: Tang Kai-chung & Anr v Tang Chik-shang & Ors. [1970] HKLR 276, per Mill-Owens J at pp 279-290).

35. Hence, a tso was formed in perpetuity. Every member of a tso must be a living male descendant, and each member only has a life interest in the tso property and his interest would merge into the tso when the member passes away.

Whether the plaintiff is a natural descendent of the Ancestor and a proper member of the Tso?

36. It is the 1^st defendant’s primary case that the plaintiff is not a natural descendent of the Ancestor.  As the Ancestor had no children, the Ancestor informally adopted a person named Tsang Choi (曾财). Tsang Choi, in turn, informally adopted another person named Tsang Ah Fat who was a worker migrated from Southern China in those years.  Both Tsang Choi and Tsang Ah Fat were not related to the Ancestor by blood.  For such reason, the 1^st defendant claims that the entire lineage on the plaintiff’s side is not entitled to be a legal or beneficial owner of the Tso.

37. On the other hand, the 1^st defendant claims that his father, Tsang Wing Shing, had been formally adopted by the Ancestor as the latter had no issue.  As Tsang Wing Shing was the formal adopted son of the Ancestor, Tsang Wing Shing was entitled to inherit the properties of the Ancestor under Chinese customary law.

38. The plaintiff disputes these allegations. According to the plaintiff’s case, there was actually no one known as Tsang Choi.  The plaintiff’s father, Tsang Hung Yau, was the natural son of Tsang Ah Fat, who was in turn the natural son of the Ancestor.

39. Both the plaintiff and the 1^st defendant rely on the information passed to them by other family members in the older generations or some elders in the Village in supporting their contentions.

40. At the trial, both the plaintiff and his mother, Ching Siu Ying (程少英), testify on behalf of the plaintiff’s case.  According to them, the wife of the Ancestor, Liu Jiu, had been living with their family for many years.  The relationship between Liu Jiu and their family was very close.  Liu Jiu told them that she was the wife of the Ancestor and Tsang Ah Fat was the natural son of the Ancestor.  The plaintiff and her mother had not heard from Liu Jiu that there was a person known as Tsang Choi.  There are a number of ancestral tablets in their house to worship various ancestors in the family, but there is no ancestral tablet in the name of Tsang Choi.

41. The plaintiff and her mother also testify that when the plaintiff was born in 1964, there was a “lighting ceremony” (點燈) in the Village which signified the birth of a male descendent in the family.  By that time, the plaintiff was the first male issue of Tsang Hung Yau and so Liu Jiu was very happy about the birth of the plaintiff.  They also dispute the accuracy of the family chart submitted by Li Kiu to the District Office in 1984 which mentioned the existence of a person known as Tsang Choi (“the Family Chart”).

42. In support of the 1^st defendant’s case, she relies on the Family Chart apparently submitted by Li Kiu to the District Office in 1984.  Further, the 1^st defendant and her sisters Tsang Lin (曾蓮) and Tsang Wan Ho testify at the trial.  They claim that the fact that Tsang Ah Fat and Tsang Choi had no blood relationship with the Ancestor was widely known in the Village in 1960s to 1980s.  Further according to the information provided by their mother Li Kiu, Liu Jiu was not the wife of the Ancestor.  Liu Jiu was actually the daughter-in-law of the Ancestor and the wife of Tsang Wing Shing’s elder brother Tsang Choi.  By so saying, the 1^st defendant seems to accept that Tsang Choi was a formal son of the Ancestor, whether by blood or by adoption, and that was why Tsang Choi was the elder brother of Tsang Wing Shing.

43. The 1^st defendant’s Son and a tenant of House 51, Tsang Kwong Tai (曾廣大), also testify at the trial.  However, their evidence is not helpful in determining the central issues of the case.  Further, the witness statement of the 1^st defendant’s Son contains mainly submissions and not facts.

44. There is no reason for me to doubt the integrity of the witnesses who testify at the trial.  But after that many years, there is no way for the court to verify the truthfulness of the information received by these witnesses.  The family members who had first-hand information about these matters had all passed away, and so there is some difficulty for the court in determining whether there was in fact a person known as Tsang Choi and whether Tsang Ah Fat was the natural son of the Ancestor.

45. Yet for the purpose of this trial, it is quite unnecessary for me to resolve these factual disputes between the parties.  The most important thing is that, based on the circumstantial evidence of this case, I accept that both Tsang Ah Fat and Tsang Wing Shing, whether they were the natural sons of the Ancestor or not, were persons entitled to inherit the properties of the Ancestor under Chinese customary law and they were both proper members of the Tso.  In other words, all the male descendents from these two persons are also proper members of the Tso.

46. According to the 1^st defendant’s own expert Professor Hugh Baker, who is a recognised expert in the field, a tso tong was essentially male centred, male dominated and male ancestor focused.  In the case of the failure of the male line, it would always be possible for the family to adopt a son in order to succeed and to inherit from his adoptive father.  Preferably, the best choice would be the nephew of the adoptive father.  In such case, the adoption might be by way of formal gwo gai (過繼).  However, it was possible to adopt a member of a more distant branch of a clan, or even from the family bearing the same surname.  There was no particular procedure for the formal adoption of a son, but much would depend on the circumstances of the people involved and the custom of individual village.

47. If no son had been adopted during a man’s lifetime, his widow and the family elders could arrange a posthumous adoption using the same criteria as those applicable to an inter vivos adoption.

48. Further according to Professor Baker, a tso tong is entirely concerned with blood relationship.  The character tso (祖), meaning “ancestor”, clearly refers to the descent from the focal ancestor which all members share.  Only descendents related by blood or adoption may properly worship an ancestor.

49. The formal record shows that when the Tso was first registered in 1934, both Tsang Ah Fat and Tsang Wing Shing were appointed as the co-managers of the Tso.  If they were not properly regarded as the male descendents of the Ancestor, whether related by blood or by adoption, it is very difficult to explain why they would have been appointed as the first co-managers of the Tso.

50. It is not in serious dispute that Tsang Wing Shing was the natural nephew of the Ancestor.  In his case, it was likely that Tsang Wing Shing was adopted by the Ancestor and as a result he was entitled to be appointed as a co-manager of the Tso.

51. In the case of Tsang Ah Fat, he would only have been appointed as a co-manager if he was either a natural son or a formal adopted son of the Ancestor.  Obviously, a manager was a very important position in the Tso, and I cannot imagine that Tsang Ah Fat would have been so appointed unless he was regarded as a formal member of the family, related to the Ancestor either by blood or by formal adoption.  Further according to the evidence of plaintiff’s mother, the ancestral tablet of Tsang Ah Fat was placed side by side with the ancestral tablet of the Ancestor when Liu Jiu was still alive.  If Tsang Ah Fat was not a male issue of the Ancestor, either by blood or by adoption, this would not have been the case.

52. Further, a member of the Tsang Ah Fat’s fong had all along been appointed as a manger of the Tso, and the members of that fong had enjoyed the use and possession of at least some of the Tso’s properties since its formation in 1934.  If Tsang Ah Fat was not related to the Ancestor by blood or by adoption, members of the Tsang Wing Shing’s fong would have taken steps long ago to remove members of the opposite fong to be managers of the Tso.  They would not have waited so long for non-members of the family to enjoy the use of ancestral properties.

53. That is also the reason why I have refused the 1^st defendant’s application to adduce DNA test report prior to the trial of the action.  Apart from the reliability of the result of the test conducted after so many years, Tsang Ah Fat, even according to the 1^st defendant’s own expert, could be a proper member of the Tso if he was adopted as a son of the Ancestor.  Even the 1^st defendant’s father, Tsang Wing Shing, was not related to the Ancestor by blood.  Hence, whether Tsang Ah Fat or the plaintiff was related to the Ancestor by blood is not a material consideration.

54. Further, I have grave reservation as to whether a person known as Tsang Choi really existed.  Firstly, there was no mention in any of the documents or records in the Land Registry or the District Office (save as the Family Chart) about a person known as Tsang Choi.  Further, there is no ancestral tablet in the household of the plaintiff to worship Tsang Choi. Apparently, Tsang Choi might be an alias name of Tsang Ah Fat, but I do not accept that a separate person with the name Tsang Choi had ever existed.

55. In fact, the plaintiff’s claim would not be affected even if Tsang Choi existed.  So long as Tsang Ah Fat was properly adopted by the Ancestor, or Tsang Choi was formally adopted by the Ancestor and Tsang Ah Fat was properly adopted by Tsang Choi, Tsang Ah Fat would still be regarded as a male issue of the Ancestor.  I would just repeat that if Tsang Ah Fat was not regarded by the family as a formal male descendent of the Ancestor, I do not believe that he would have been appointed as one of first co-managers of the Tso.

56. In trying to support the family tree as described by the 1^st defendant, she also relies on some of the ways in which various members were addressed within the family.  However, in the absence of any evidence or expert evidence about the local custom in the Village, the way in which an individual was addressed within the family is not conclusive about the actual relationships between the relevant parties, in particular the terms used were quite ambiguous.  Hence, I attach no weight to such consideration.

57. In fact, the members of the Tsang Ah Fat’s fong can also lodge a similar attack against the status of the Tsang Wing Shing’s fong.  Tsang Wing Shing was certainly not the natural son of the Ancestor.   According to the expert report of Professor Baker, once a person was formally adopted by the adoptive father, he enjoyed the same right as the natural son of the adoptive father.  The adopted son had full rights to succeed and to inherit from his adoptive father, and the same rights to membership of and benefit from any tso tong of which his adoptive father was a member.  However, his rights to succession and inheritance in his natal family were normally terminated.

58. In other words, after formally adopted by the Ancestor, Tsang Wing Shing ceased to be the son of his natural father Tsang Cheong Yip, and normally he was not allowed under Chinese customary law to succeed the properties of his natural father.  However, this was not the case here.  The land search record (Memorial No 132457) shows that Tsang Wing Shing, together with the male descendents of his natural brothers, had succeeded 5 lots of land which were the properties of Tsang Cheong Yip some time in 1954. This fact alone casts serious doubt as to whether Tsang Wing Shing had been formally adopted by the Ancestor.

59. Despite such doubt, I accept, for the purpose this case, that both Tsang Ah Fat and Tsang Wing Shing were the male descendents of the Ancestor under Chinese customary law.  As mentioned many times above, if they were not regarded as the formal male descendents of the Ancestor, they would not have held the important position as the first managers of the Tso. Further as mentioned by Professor Baker, non-family members were not allowed to worship an ancestor.  A fortiori, non-family members should not be allowed to hold the important position as a manager of a tso.  The first defence therefore fails.

The Fan Ga Agreement

60. The 1^st defendant also claims that there was a Fan Ga Agreement made some time ago, and the land on which the Houses were situated had already been allotted to the Tsang Wing Shing’s fong under such agreement.

61. “Fan Ga” (分家) in Chinese means “splitting the family”.  According to Professor Baker, a tso tong was intended to be perpetual, indivisible and unalienable, preserving the memory of an ancestor and giving identity and cohesion to the beneficiaries as a group.  Thus a tso tong acted as an inclusive unifying force, while the inheritance system resulted in a fan ga (household division or family division) which was by nature divisive and fragmenting.  Professor Baker is of the opinion that a tso tong should not be thought of as belonging to the inheritance system because its essential purpose was to act as a counterweight to that system by removing property from it.

62. Nevertheless, it seems to be accepted that a tsoi tong may be dissolved if the properties of the tso have been resumed by the government or all the members of the tso agree for the dissolution.  In Kan Fat-tat v Kan Yin-tat [1987] HKLR 516,  DHCJ Tang (as he then was) said at p 539B:

“In my opinion, what one member cannot do, a majority of members cannot do either. I am not aware of any relevant local custom which would displace the general rule that unanimous consent is required. Moreover, I believe it runs counter to the perpetual nature of a Tso, that any member or any number of members may dissolve it by requiring distribution of the compensation or proceeds of sale. Dissolution by unanimous consent might have been tolerated on the basis that there was no legal sanction against it and of course there was no one to object.”

63. At the trial, Mr Stephen Selby, the plaintiff’s expert on Chinese customary law, also testifies that it is possible to dissolve a tso. However, dissolution of a tso should be regarded as a very big and serious issue of the family, and it usually happened when the whole family was moving elsewhere.

64. First, I must point out that the Fan Ga Agreement defence does not sit well with the 1^st defendant’s earlier defence.  If Tsang Ah Fat was not the descendent of the Ancestor or a proper member of the Tso, why Tsang Ah Fat was allowed to get some of the Ancestor’s properties under the alleged Fan Ga Agreement?

65. Further, it has all along been the 1^st defendant’s pleaded case that the Fan Ga Agreement was made in 1934.  Such allegation appears in all the previous pleadings and the witness statements filed on behalf of the 1^st defendant.  Yet there has been a drastic change in the 1^st defendant’s case at the trial, as the 1^st defendant’s witnesses are not sure about the time when the alleged Fan Ga Agreement was made.  It is very difficult to explain why this is the case, and this certainly casts doubt on the creditability of the 1^st defendant’s case.

66. Obviously, it does not make a lot of sense that the Fan Ga Agreement was made in 1934.  The record at the Land Registry shows that the Tso was formed in 1934.  It is very difficult to explain why the family members would have made the Fan Ga Agreement to split the properties of the Ancestor shortly after the formation of the Tso.

67. In my judgment, the evidence of the 1^st defendant’s witnesses is far from establishing the existence of the Fan Ga Agreement.  According to the 1^st defendant and her sisters, their mother only told them about the Fan Ga Agreement after the dispute broke out between the 2 fongs in 1983.  An elder in the Village named Yau Gau (邱九) also confirmed the existence of the Fan Ga Agreement.  However, these witnesses know very little about the Fan Ga Agreement itself.  They can only inform the court that some persons went to a village office or a government office in the new town in Tuen Mun to effect the Fan Ga Agreement.  Yet the experts and the case law tell us that it was not easy to split the properties of a tso, which would have the effect of dissolving the tso itself.  The court does not know who were the parties that made the alleged Fan Ga Agreement and whether such agreement had been unanimously approved by all the proper members of the Tso by that time.  Hence in my judgment, the evidence is far from satisfactory and the 1^st defendant has simply failed to discharge the burden of proving the existence of the Fan Ga Agreement or a valid Fan Ga Agreement.

68. More importantly, the conduct of the members of the 2 fongs throughout the years did not support the existence of the Fan Ga Agreement.  Firstly, representative of each fong had been appointed as a manager of the Tso throughout year until the death of Li Kiu in 2004.  Even in 1983, Li Kiu wanted to appoint one of her daughters as her successor as a manager.  Secondly, in 1960, the two then managers of the Tso, Tsang Wing Shing and Tsang Hung Yau, together sold a property of the Tso, Lot No 268 in Demarcation District No 131.  All these show that both fongs did recognise the existence of the Tso and the Tso had not been dissolved by the alleged Fan Ga Agreement.

69. According to evidence of the 1^st defendant and her sisters, their mother Li Kiu only told them about the Fan Ga Agreement after the dispute between the 2 fongs broke out in 1983.  However, it is difficult to understand why the members of the Tsang Wing Shing’s fong only first raised such allegation in 1983, when previously both fongs conducted as if the Tso existed.  The alleged Fan Ga Agreement only surfaced after the members of the Tsang Ah Fat’s fong indicated their objection for Li Kiu’s daughter to succeed as a manager of the Tso.  In my judgment, the members of the Tsang Wing Shing’s fong just made out such allegation about the Fan Ga Agreement with a view to protect their interests and to justify the continued retention of certain Tso’s properties.

70. In order to support the Fan Ga Agreement, the 1^st defendant also relies on the following:

(i) there has been separate management of the various Tso’s properties by the two fongs throughout the years, and the Tsang Wing Shing’s fong had even rented out one of the Houses to a third party and collected the rent from the tenant;

(ii) the Tso has not organised any function for all the family members of the Tso to worship or to pay respect to the Ancestor throughout the years.

71. Because there were de facto two fongs descending from the Ancestor, one would not be surprised that there was a division of the management and occupation of the various ancestral properties between the two fongs. But this is far from saying that there was a Fan Ga Agreement and the Tso had been dissolved.  These are two separate matters.  Further as stated in the expert report of Professor Baker, there was no sanction if a tso tong ceased to carry out any activities to worship its focal ancestor, but that does not mean the tso tong was dissolved simply because there was no activity held to worship the focal ancestor.

72. Further, Tsang Wan Ho testifies that she was responsible for  the ceremony known in Chinese as “擔幡買水” during her father’s funeral.  This is a ceremony usually carried out by the eldest male issue of the deceased. According to the 1^st defendant, this supports the fact that there was a Fan Ga Agreement and the daughters of Tsang Wing Shing were entitled to inherit the properties of their father.

73. With respect, I cannot understand how the carrying out of such ceremony would signify or entitle the daughters of Tsang Wing Shing to inherit the properties of their father, or how the ceremony in the funeral of a member of the Tso would have the effect of indicating the dissolution of the Tso.  As I have mentioned above, if the members of the Tsang Wing Shing’s fong claimed that certain properties of the Tso were not ancestral properties and were actually owned by Tsang Wing Shing himself, the members of that fong should have taken actions long time ago to rectify the records in the Land Registry and the District Office.  It is difficult to explain why they have not taken any action for all these years.

74. In her defence, the 1^st defendant also suggests that: (i) the plaintiff has deliberately delayed the legal proceedings in claiming possession of the Houses so that all the witnesses who knew about the family history would have passed away; and (ii) the members the Tsang Ah Fat’s fong had deliberately tricked Li Kiu  to become a co-manager of the Tso.

75. In my judgment, these are groundless accusations.

76. Although under Chinese customary law, a female in a family has no inheritance right in respect of the property of her husband or father, there was a customary obligation on a tso manager to give due regard to the maintenance of the widow of a tso member during the latter’s lifetime (see: §§16 to 18 of Mr Selby’s report).  In order to take care of the interest and the concern of the widow, the widow might be asked to become a manager of the tso.  In my judgment, this was actually what happened in the present case and there is simply no basis to accuse the members of the Tsang Ah Fat’s fong for just discharging the customary duty of a manager in looking after the interest of the 1^st defendant’s mother. Further, to make provision for the maintenance of widow might include allowing her to occupy the Tso’s property for her lifetime.  In such circumstances, it would only have been sensible for the plaintiff to commence legal proceedings after the death of Li Kiu.

77. For the above reasons, I do not accept that there was a Fan Ga Agreement and the second ground of defence also fails. 

Proprietary estoppel

78. The 1^st defendant’s third ground of defence is based on the principle of proprietary estoppel.  The 1^st defendant says that, under the Fan Ga Agreement, the members of the Tsang Ah Fat’s fong had made a promise to the members of the Tsang Wing Shing’s fong that the land on which the Houses were situated was allotted to the latter’s fong.  Relying on such promise, the members of the Tsang Wing Shing’s fong had spent money in building the Houses in the Lot, and so the plaintiff cannot now claim back the Houses.

79. As I do not accept that the members of the two fongs had made any Fan Ga Agreement, there is no factual basis to support the defence of proprietary estoppel and so such defence also fails.

80. Further, even if there was such a promise, there is a serious doubt as to who is entitled to rely on the defence of proprietary estoppel. From the evidence, it is not clear who was the actual promisee.  It was certainly not the 1^st defendant herself.  Neither had the 1^st defendant contributed any money for the building of the Houses.  In such circumstances, she cannot rely on the defence of proprietary estoppel.

81. There is also a factual dispute as to who paid for the construction costs of the Houses.  According to the plaintiff’s case, the money came from the sale proceeds of the Tso’s property, Lot No 268 in Demarcation District No 131, in 1960.  On the other hand, the 1^st defendant claims that the money came from the family of the Tsang Wing Shing’s fong.

82. Having considered all the background facts of the present case, I prefer to accept the plaintiff’s version on the balance of probabilities.  From the land search record, it was clear that the Lot was owned by the Tso at the relevant time.  In such circumstances, it would only have been sensible for the Tso to pay for the construction costs of the Houses to be built on the Lot.  Further, I do not find that it was a pure coincidence that one of the Tso’s properties was sold at that particular time.  Without any evidence to support other purposes for the sale of the property, it would be safe for me to conclude that the sale proceeds were used to pay for the construction costs of the Houses.

83. Even if the 1^st defendant’s family had paid for the construction costs, that does not follow that her family had relied on the promise in building the Houses.  As I see it, some of the Tso’s properties were under the sole management of either fong and so there might be a lot of reasons as to why the family in the Tsang Wing Shing’s fong was prepared to spend the money in building the Houses.  In any event, I do not accept that there was any Fan Ga Agreement and so there is no factual basis to support the making of any promise.

84. Hence, the third defence also cannot succeed.

The identity of the focal ancestor under the Tso

85. Finally, it is also the 1^st defendant’s case that that the Tso, which is the subject matter of the claim, was actually formed in honour of the Ancestor’s brother and not the Ancestor, and so the plaintiff has no locus to claim for the possession of the Houses.

86. This defence has only been raised by the 1^st defendant in the later stage of the proceedings.  Further, this defence, to a great extent, does not sit well with the other defences raised by the 1^st defendant.  It has all along been the 1^st defendant’s case that the plaintiff is not related to the Ancestor by blood, and now the 1^st defendant says that the focal ancestor of the Tso was actually another person.

87. In support of such contention, the 1^st defendant relies on the registration document of the Tso in 1934, which indicated that the name of the Tso was “Tsang Cheong Wan Tso” without a Chinese name.  In Cantonese, the pronunciation of the words “宏” (Wang) and “雲” (Wan) is very similar, and so it was easy for mistake to be made.  Further, 1^st defendant relies on a letter issued by Tuen Mun District Office dated 18 March 2009.  In the said letter, it referred to the Family Chart filed in the Tuen Mun District Office in April 1984.  In the Family Chart, the name of the Ancestor’s brother was referred to as Tsang Cheong Wan (曾昌雲).  It also stated that the Family Chart was submitted with the consent of the members of the two fongs.  Hence, the 1^st defendant claims that the focal ancestor of the Tso was actually the Ancestor’s brother.

88. In my judgment, such allegation is simply a wide speculation without any substance.

89. Firstly, the record in the Land Registry in 1934, Memorial No 90645, actually shows that the name of the deceased in 1934 was Tsang Cheong Wang and not Tsang Cheong Wan.

90. Secondly, there are proper land search records to show that the Ancestor was the owner of the various lots of land including the Lot.  Upon the death of the Ancestor, these lots of land were registered as the properties of the Tso.  In such circumstances, it is very difficult for me to understand how these various lots of land suddenly became the properties of the Ancestor’s brother and that the Tso, which consisted of the properties of the Ancestor, was formed in honour of the Ancestor’s brother.

91. Thirdly, it is clear that Tsang Ah Fat was appointed as a manager of the Tso as early as 1934.  If the Tso was formed in honour of the Ancestor’s brother, it is quite inconceivable that Tsang Ah Fat, who was not related to the Ancestor’s brother, was appointed as a manager of the Tso.  Furthermore, if the Tso was formed in honour of the Ancestor’s brother, one would expect that the descendents of the Ancestor’s brother would have taken some steps to rectify the matter.  Yet nothing has been done throughout the years and the 1^st defendant only sought to introduce such new defence in the eleventh hour of the proceedings.

92. Fourthly, the document appointing Tsang Hung Yau as a co-manager of the Tso in 1955 clearly indicated that the name of the Tso was “Tsang Cheong Wang Tso”.

93. Fifthly, the succession documents show that Tsang Wing Shing succeeded the properties of his natural father who was also the Ancestor’s brother in 1954.  If the Tso in 1934 was established in honour of the Ancestor’s brother, he must have died before 1934.  In such circumstances, it is very difficult to explain why there was a time lapse of 20 years and Tsang Wing Shing succeeded the properties of the Ancestor’s brother only in 1954.

94. Sixthly, although it was stated in the letter of the District Office that the Family Chart was submitted with the consent of the members of the two fongs, there is no evidence to show that who prepared the Family Chart and who agreed with the contents of the chart.  In such circumstances, there is simply no basis for the 1^st defendant to say that the focal ancestor of the Tso was the Ancestor’s brother.

95. Based on the aforesaid, all the defences put forward by the 1^st defendant cannot succeed.  As the Houses were situated on the Lot owned by the Tso and the licence for the members of the Tsang Wing Shing’s fong to occupy the Houses has expired, the plaintiff, as the sole manager of the Tso, is entitled to claim for the possession of the Houses.

Mesne profits and costs

96. I therefore order the 1^st defendant to deliver vacant possession of the Houses to the plaintiff.  I grant a stay of execution of 42 days to enable the 1^st defendant to move out of the Houses.  I also dismiss the 1^st defendant’s counterclaim.

97. There is no serious dispute between the parties about the calculation of the mesne profits which is based on the rateable values of the 2 Houses as stated in the third witness statement of the plaintiff.

98. I accept the calculation done by Mr Chu, counsel for the plaintiff, in his written final submission about the total mesne profits from 1 February 2005 to 2 December 2013 in the sum of $181,739.  I order the 1^st defendant to pay such sum to the plaintiff.

99. In his final submission, Mr Chu has also made an unusual application for the costs of this action to be paid by the 1^st defendant’s Son.  According to Mr Chu, the 1^st defendant’s case is a misconceived one.  It is clear that there was someone behind the scene to manipulate the 1^st defendant in the conduct of her defence.  It is also obvious that the 1^st defendant, with the assistance of the people behind her, has tried to delay the proceedings by making various unmeritorious applications.  Further, the evidence shows that alternative accommodation is available to the 1^st defendant and the 1^st defendant’s Son is only fighting the case for his own personal interest.

100. Without giving an opportunity to the 1^st defendant’s Son to address these issues, such application (if the plaintiff still pursues the same) will have to be dealt with on some other occasion.  At this stage, I only make a costs order nisi that the 1^st defendant do pay to the plaintiff the costs of the claim and the counterclaim on a party-to-party basis, which shall be made absolute 21 days after the date of the handing down of this Judgment.