KAN YAM YAU AND ANOTHER v. KAN YOOK TIM AND ANOTHER

HCA 914/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 914 OF 2005

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J U D G M E N T

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1.  This is a claim by the members of a Chinese ancestral worshiping tso against the members of another Chinese ancestral worshipping tso.  The 1^st Tso is called Kan Kung Cheung Tso (“Kung Cheung Tso”) and it was set up for worshiping one Kan Kung Cheung (“Kung Cheung”).  The 2^nd Tso is called Kan Tak Chung Tso (“Tak Chung Tso”) and it was set up to worship one Kan Tak Chung (“Tak Chung”), the father of Kung Cheung.  The members of Kung Cheung Tso claim that they have the right to participate in the enjoyment and distribution of the property of Tak Chung Tso and the right to be appointed as a manager of Tak Chung Tso.

Background

2.  In order to understand the nature of the claim, one has to start with the relationship of the early settlers of the Kans.  The Kans regard Kan Lung Kai 簡龍溪 (“Lung Kai”) as their 1^st generation ancestor.  They cannot go further in tracing their ancestry.  Below is a genealogy showing their ancestors in the 1^st to 4^th generations and the six sons of one of their 4^th generation ancestor Tak Chung.  The table shows that Kung Cheung was the youngest son of Tak Chung:

3.  The 2^nd son of Tak Chung, Kan Man Cheung (“Man Cheung”) and his sons had migrated elsewhere and their descendants are not traceable.  The descendants of the remaining five sons are the Kans who now reside in the various villages in Yuen Long and Kam Tin. 

4.  Tak Chung Tso was set up to worship Tak Chung.  Nobody knows when it was set up.  Theoretically, all his descendants are members of this tso.  They should therefore include all the descendants of his youngest son, Kung Cheung.  The descendants of Kung Cheung constitute a fong or branch of Tak Chung’s family (“Kung Cheung Fong”).

5.  Kung Cheung Tso was set up to worship Kung Cheung and again nobody knows when it was set up.  The members of this tso are in fact the members of Kung Cheung Fong.  This claim is brought by the members of Kung Cheung Tso.  They should in fact make the claim in the capacity of members of Kung Cheung Fong, a branch or fong of Tak Chung’s family.  However, members of Kung Cheung Tso are the same as members of Kung Cheung Fong, it therefore makes no difference if they claim as members of Kung Cheung Tso.  They claim that they are entitled to participate in the enjoyment and distribution of the property of Tak Chung Tso. 

6.  The descendants of Kan Shing Cheung (“Shing Cheung Fong”), Kan Dien Cheung (“Dien Cheung Fong”) and Kan Yau Cheung (“Yau Cheung Fong”) (hereinafter called the Three Senior Fongs) dispute the claim and say that the descendants of Kan Hon Cheung (“Hon Cheung Fong”) and Kung Cheung Fong are not entitled to participate in the property of Tak Chung Tso. 

7.  Tak Chung’s family resided in Shui Jiu Lo Wai (“Lo Wai”) of Shap Pat Heung, Yuen Long as did Tak Chung’s father and grandfather.  The members of the Three Senior Fongs say that Hon Cheung and Kung Cheung had already taken their parts or shares of the properties in the process of “fan ka” (分家) or division of family and ancestral worshipping properties upon their respective removals to Ha Che and Ma On Kong.  These two villages are in Pat Heung, Kam Tin.

The Plaintiffs’ Evidence

8.  The plaintiffs called two witnesses.  They were Kan Yam Yau (“Yam Yau”), the 1^st named plaintiff and Kan Siu Ming (“Siu Ming”), a member of the 11^th generation.  Their witness statements were materially the same.  They both refer to the genealogy as shown above.  They said that after the death of Tak Chung, his youngest son Kung Cheung removed from Lo Wai to Ma On Kong which is about 3 miles away.  The two places are separated by a hill which is now part of the Tai Lam Country Park.  It takes about two hours walk from one place to the other. 

9.  The genealogies produced by both sides referred to this removal although not in identical terms.  The plaintiffs’ genealogy said that it was a permanent removal, but it did not give the removal date.  The defendant’s genealogy said that the removal took place during the reign of Emperor Qianlong of the Qing Dynasty (1736-1796).  There is no dispute that Kung Cheung and his descendents settled in Ma On Kong until now.

10.  The witnesses also referred to the removal of Kan Hon Cheung (“Hon Cheung”), the 4^th son of Tak Chung, from Lo Wai to Ha Che (also called Sun Che) of Pat Heung.  It is also about two hours walk from Lo Wai.  The plaintiffs’ genealogy said that the removal to sun Che was a permanent one, but it again did not give the removal date.  The defendant’s genealogy stated that this removal to Ha Che took place in the reign of Emperor Yongzheng of Qing Dynasty (1723-1736).  Hon Cheung and his descendants also settled in Ha Che till now. 

11.  The witnesses also referred to the removal of Kan Wan Hok (“Wan Hok”), the 8^th generation ancestor down from Kan Shing Cheung (“Shing Cheung”), the eldest son of Tak Chung.  Wan Hok moved from Lo Wai to Kong Tau which is at a 10 to 15 minute walk away. 

12.  They also referred to the removal of the descendants of Kan Tak Kam (“Tak Kam”), the younger brother of Tak Chung, from Lo Wai to Hung Cho Tin Village which is adjacent to Lo Wai.  The plaintiffs’ genealogy recorded that the removal was by the descendants of Tak Kam whilst the defendants’ genealogy said that the removal was by Kan Sau Cheung (“Sau Cheung”) the son of Tak Kam.

13.  The witnesses then said that every year on the 1^st Sunday after the Chung Yeung Festival, the elders of the Kans would arrange the male descendants to go together to worship Tak Chung at his grave in Ngau Kwu Kok.  It is off Fan Kam Road in Pat Heung.  On the same day, they also worship Tak Chung’s grandfather, father and younger brother at their graves in Ching Fai Tong which is near Tin Fu Tsai, Tai Lam.  On the following Sunday, they would go together to worship the 1^st generation ancestor Lung Kai at his grave at Lo Wai.

14.  Prior to 1982.  After the worshipping ceremonies, they would cook the sacrificial pork and food at somewhere near the graveyard and consume it there and then.  In 1981 instead of having a feast at the countryside, the managers of Tak Chung Tso arranged a feast of “food in the clay pot” (盆菜) provided by a restaurant.  Unfortunately, some young members of Kung Cheung Fong had a quarrel with some young members of the Three Senior Fongs during the feast.  As a result, the elders on both sides agreed that in future after the worshipping ceremony Tak Chung Tso would arrange a feast only for the members of the Three Senior Fongs.  Regarding Kung Cheung Fong, it would instead pay some money to it for its members to host their own feast separately.  There is no dispute that pursuant to this arrangement, the following payments were made:

1982-1989	$5,000 per year
1990-1991	$6,000 per year
1992-1999	$8,000 per year
2000-2003	$25,000 per year
2004	$30,000

In 1984, Tak Chung Tso also paid Kung Cheung Tso and each of the Three Senior Fongs $10,000 for fung shui maintenance.

15.  The reason for the increase in payment since 2000 was because of substantial increase in rental earnings of Tak Chung Tso since that year.  The tso had a joint venture with a developer to build a small housing estate.  It provided the land for the development and in return was given three blocks of three storey small houses.  These houses began to produce rental income in 2000.

16.  Owing to the increase in income, Tak Chung Tso also organised two pleasure trips in 2003 and 2004 to Zhongshan and Gudou in Guangdong respectively.  The tso subsidized half of the expenses of the trips and members of Kung Cheung Tso had also joined these trips.

17.  The managers of Tak Chung Tso and Kung Cheung Tso also gathered at the ancestral temple in Lo Wai once a year to verify the accounts of Tak Chung Tso.

18.  In about 1982, the managers of Kung Cheung Tso had told the 2^nd defendant that they also wanted to be appointed as one of the managers and take part in managing the affairs of Tak Chung Tso.  However, the request was not acted upon.  They raised it again in about early 2003 and early 2004.  The 2^nd defendant promised to implement their wish.  However, there was a meeting in October 2004 in a Chinese restaurant in Yuen Long wherein the managers of Tak Chung Tso gave the plaintiffs a copy of their genealogy and said that Kung Cheung had already divided the family and ancestral properties upon removal from Lo Wai.  They did not accept this and left the meeting.  Thereafter, no more payment was made by Tak Chung Tso to Kung Cheung Fong and no one from Kung Cheung Fong was appointed as a manager of Tak Chung Tso.

19.  In cross-examination, they denied that there had been “fan ka” or division of family and ancestral properties for Kung Cheung.  They said that the first time when they were told about this was at the tea gathering in October 2004.  When asked when did they begin to have ancestral worship together with the members of the Three Senior Fongs, one of them said that it was before 1980.  The other witness said that he had taken part in the 3^rd to 4^th year prior to 1982.  However, they appeared to be rather shaky on this matter.

20.  One of them also agreed that the descendants of Tak Kam who live in Hung Cho Tin village and the members of Hon Cheung Fong who live in Ha Che had not taken part in the worship with the members of the Three Senior Fongs.  The reason being that these two fongs accepted that there had been “fan ka” by Tak Kam and Hon Cheung and they did not join in the activities of Tak Chung Tso.  The witnesses also confirmed that the managers of Kung Cheung Tso only started to verify the accounts of Tak Chung Tso from 1981 onwards and not before.  They also agreed that the members of Kung Cheung Tso had never taken part in managing the affairs of Tak Chung Tso. 

The Defendants’ Evidence

21.  The defendants called the 2^nd defendant, Kan Kun Sang (“Kun Sang”), who is a manager of Tak Chung Tso and one Kan Yiu Hin (“Yiu Hin”), the youngest son of Kan Hang Tai, deceased (“Hang Tai”).  They relied on the genealogy compiled by Hang Tai in 1921 (“the Lung Kai Genealogy”).  Hang Tai was a well-respected elder in the Kan clan.  He passed away on 8 July 1980.

22.  The 2^nd defendant has been a manager of Tak Chung Tso since 8 August 1978.  He had also been responsible for managing the tso’s financial matters from 1959 to 2004.  He relied on the Lung Kai Genealogy and said that Hon Cheung had “fan ka” (分家) or “fen fong” (分房), which means the taking of his share of the family and ancestral worshipping properties, and removed permanently to Ha Che during the reign of Emperor Yongzheng.  Also according to the Lung Kai Genealogy, Kung Cheung had done the same at the later time during the reign of Emperor Qianlong.  He said the divisions of family and ancestral worshipping properties for Hon Cheung and Kung Cheung were widely known amongst the members of the Three Senior Fongs.  The ancestral worshipping property was held by Tak Chung Tso.  After Hon Cheung and Kung Cheung had taken their shares, the Three Senior Fongs in Lo Wai (and in the neighbouring Kong Tau) continued to manage the remaining property of Tak Chung Tso. 

23.  According to the Block Government Lease, there were plots of land registered in the name of Tak Chung Tso and the registered manager was one Kan Un Loi (“Un Loi”) of Yau Cheung Fong.  According to the memorials in the Yuen Long Land Registry, Un Loi passed away in or before 1949 and one Kan Kwai (“Kwai”) also of Yau Cheung Fong was appointed in 1949 to take his place.  Kwai remained the sole manager until 1978 when the 2^nd defendant of Dien Cheung Fong and one Kan Yook Tim (“Yook Tim”) of Shing Cheung Fong were also appointed as managers of the tso.  Kwai passed away in 2005.

24.  From 1959 when the 2^nd defendant began managing the finance of Tak Chung Tso, he had taken part in all the annual autumn worships by the members of the Three Senior Fongs.  However, the members of Kung Cheung Fong had not taken part in any of those worships.  Prior to 1959, he had also taken part in such worship once or twice.  The members of Kung Cheung Fong were also not there.

25.  Hang Tai passed away on 8 July 2000.  After that, several managers of Kung Cheung Tso and some members of Kung Cheung Fong went to the 2^nd defendant’s home demanding payment from Tak Chung Tso to Kung Cheung Fong.  The 2^nd defendant pointed out to them that there had already been “fan ka”.  However, when the 2^nd defendant was asked to produce documentary proof of “fan ka”, he was unable to do so because the Lung Kai Genealogy had gone missing and the respected Hang Tai had passed away.  Though there were other elders of the Three Senior Fongs who said that Kung Cheung had “fan ka” and moved away, they did not think the words of those elders were of sufficient weight.  In order to maintain the peace, they therefore put the “fan ka” dispute aside in the meantime and allowed the members of Kung Cheung Fong to join the autumn worship and share the benefits of Tak Chung Tso from 1980 onwards.

26.  In 1981, the 2^nd defendant arranged a feast of “food in the clay pot” (盆菜) after the autumn worship.  Unfortunately, a quarrel developed at the feast between the youngsters on both sides.  The elders therefore decided that from 1982 onwards, only the members of the Three Senior Fongs would feast together after the worship.  The members of Kung Cheung Fong would have their own feast and Tak Chung Tso would give them a lump sum subsidy for such purpose.  It was pursuant to this arrangement that moneys were paid by Tak Chung Tso to Kung Cheung Fong from 1982 to 2004 as set out above.

27.  Also from the autumn worship in 1980 onwards, senior members of Kung Cheung Fong at or above the age of 60 were also paid a token sum for longevity blessing.  Hitherto, only senior members of the Three Senior Fongs at or above 60 were paid such sums.  Such sums were in fact paid only for a few years prior to 1979.  Before such token sums were paid, each of the senior members of the Three Senior Fongs was given some pork after the autumn worship.

28.  These payments continued until after the Chung Yeung Festival in 2004 when the 2^nd defendant was told by a member of Yau Cheung Fong that the Lung Kai Genealogy had been found.  He then told Yiu Hin, the 2^nd witness of the defendants, to make copies of it for each fong to keep.  Several days later, Yiu Hin told him on the telephone that the Lung Kai Genealogy had clearly recorded the “fan fong” (分房).  He then arranged a meeting for the representatives of the Three Senior Fongs and Kung Cheung Fong at a restaurant and distributed copies of the Lung Kai Genealogy to them.  However, members of Kung Cheung Fong still disputed that there had been “fan ka” or “fan fong” by Kung Cheung.  They then left the meeting.  From 2005 onwards, Kung Cheung Fong did not join them in the annual autumn worship anymore.  Tak Chung Tso also stopped paying any more money to Kung Cheung Fong including the longevity blessing token sums.

29.  According to the 2^nd defendant, members of Kung Cheung Fong had never taken part in managing Tak Chung Tso.  They had also not asked for any payment prior to the occasion at his home in 1980 after Hang Tai had passed away. 

30.  Regarding the members of Hon Cheung Fong, who settled in Ha Che, they had no communication with each other except on the maintenance of the grave of Lung Kai, who was buried near Lo Wai.  The funds for maintaining Lung Kai’s grave came from the sale of certain burial rights which belonged to the descendants of Lung Kai, namely the members of all five fongs.  Members of all fongs therefore took part in a joint ceremony in 1979 to mark the completion of the maintenance work.  Hon Cheung Fong also joined them in the annual worship of Lung Kai at his grave (which took place on the following Sunday after the worship of Tak Chung) for a few years after 1979.  Thereafter, they had no more joint activity with Hon Cheung Fong.  There was also never any joined worship of Tak Chung’s grave with Hon Cheung Fong.

31.  The 2^nd defence witness, Yiu Hin was born in 1948.  He testified that his father, Hang Tai was born in 1893.  His father was an educated man and was well respected by the fellow Kans.  His father was also the Deputy Chairman of the Rural Committee for Shap Pat Heung in Yuen Long from 1949 to 1955.  His father was nominated by all the Kans who descended from Lung Kai to compile the Lung Kai Genealogy for all of them.  His father finished this task in 1921.  After his father’s death, he inspected his father’s properties but could not find the Lung Kai Genealogy.  However, after the autumn worship in 2004, he was told by Kun Sang that the Lung Kai Genealogy had surfaced and was with his elder brother.  He then took it from his brother and made copies of it.  He also engrossed its contents in his computer.

32.  He referred to various passages in the Lung Kai Genealogy and said that both Hon Cheung and Kung Cheung had “fan ka” and settled in Ha Che and Ma On Kong respectively.  These passages also confirmed what his father had told him.

RELEVANT PARTS OF THE LUNG KAI GENEALOGY 

33.  The Lung Kai Genealogy has an introduction.  It showed that Hang Tai prepared it not only to record the relationships of the Lung Kai descendants.  It was also to be used by a clan organisation of the Kans in Guangdong for compilation of an Omnibus Genealogy covering all the Kans in Eastern Guangdong (“the Omnibus Genealogy”).  This organization constituted of many Kans in Guangdong.  Hang Tai finished the Lung Kai Genealogy ten days after the Ching Ming Festival in 1921.  However, the organization only published the Omnibus Genealogy in the 3^rd lunar month of 1928.  The Omnibus Genealogy stated that the genealogy of the descendants of Lung Kai was compiled by Hang Tai of the 11^th generation.

34.  The defendant’s expert witness, Professor Li Guilian of Beijing University said that the compilation of the Omnibus Genealogy was a solemn and well organised project.  He also said that Hang Tai should have been nominated by all the descendants of Lung Kai to prepare their own genealogy for use in the compilation of the Omnibus Genealogy.  This is supported by the contents of the Lung Kai Genealogy itself. 

35.  Hang Tai had not only documented the relationships of hundreds of the males of the Three Senior Fongs in the Lung Kai Genealogy, he had also done the same for the males of the other fongs.  Though Hon Cheung and Kung Cheung, who moved to Ha Che and Ma On Kong respectively, belonged to the 5^th generation, Hang Tai was able to record the relationships of 109 male descendants of Hon Cheung Fong from the 6^th to 12^th generations and of 106 male descendants of Kung Cheung Fong also from the 6^th to 11^th generations.  In addition, he had also documented the relationship of 188 male descendants of the 6^th to 12^th generations of Tak Kam (of the 4^th generation).  The Lung Kai Genealogy indeed appeared to be a comprehensive work recording all the males descended from Lung Kai up to Hang Tai’s time.  It is obvious that Hang Tai had been nominated and supported by all the descendants of Lung Kai to prepare this genealogy for use in the compilation of the Omnibus Genealogy, otherwise, one wonders how he could have obtained all the personal data as reflected in his work.  All these show that the Lung Kai Genealogy is a reliable and authoritative document.

36.  I now deal with the parts of the Lung Kai Genealogy that the defendants wish to rely on.  This genealogy started off with an introduction which I have already referred to.  It then went on to state the place of origin of Lung Kai and how his grave was moved by his son, Yee See from Boluo County in Guangdong to Lo Wai.  It then referred to Yee See’s family and the joint burial place of Yee See and his wife.  The next paragraph referred to Yee See’s son Fei Yin, his wife and three sons and the burial places of Fei Yin and his wife.  This paragraph then ended with the following words followed by a sentence of words of smaller size:

「… 以上三祖前遺嘗業經既洗消        茲積有嘗業與棗田下輋安崗三處無涉」

“The previous ancestral worshipping properties left behind by the aforesaid three ancestors had been accounted for and exhausted. 

The ancestral worshipping properties in stock now have nothing to do with the three places of Cho Tin, Ha Che and On Kong.  (Translation)”

Professor Li said that the 2^nd sentence of smaller size was a remark to further explain the sentence before it.

37.  After the introduction, the genealogy then referred to the members of the 4^th generation, namely Tak Chung, Tak Leung and Tak Kam.  The 1^st paragraph dealt with Tak Chung.  After referring to the joint burial place of Tak Chung and his wife, there was the following sentence:

「… 德忠與德金嘗業先既剖判兩不干涉又分房八鄉下輋并馬鞍崗兩處名既除有嘗業亦不干涉」

“The ancestral worshipping property of Tak Chung and Tak Kam having been justly divided, the two fongs should not interfere with one another; also the fongs that had separated (fan fong-分房) (and moved to) Ha Che and Ma On Kong of Pat Heung already had their names taken off, even if there is ancestral worshipping properties, they should not interfere with the same.  (Translation)”

The expression “fan fong” (分房), when used in isolation and not qualified by the context in which it is used, often means taking one’s share of the family property.  However, this sentence is focused on ancestral worshipping property.  “Fan fong” (分房) in this case may refer to dividing and taking one share of family and ancestral worshipping properties.

38.  The Lung Kai Genealogy then dealt with the brothers of Tak Chung.  His younger brother Tak Leung died early and did not leave any issue.  The youngest brother Tak Kam had two sons, Kan Wan Cheung (“Wan Cheung”) and Sau Cheung.  The genealogy then dealt with the 5^th generation members.  If referred to Hon Cheung, the 4^th son of Tak Chung.  The relevant part of this paragraph is at the end.

「五世翰章迺德忠之四子 … 諱妣于清雍正年間分友(原文)遷居寶安八鄉下輋，堂名光裕堂。」

“The 5^th generation Hon Cheung was the 4^th son of Tak Chung … He and his wife had branched out (fan chi-分支) and moved to live in Ha Che of Pat Heung, Po On (during the reign of Emperor Yongzheng (of the Qing Dynasty).  The name of his Tong was Kwong Yu Tong.  (Translation)”

39.  Again, the meaning of the expression “fan chi” (分支) is similar to that of “fan fong” (分房) as used above.  However, from the use of “fan fong” in the 2^nd passage quoted above, it seems that the meaning of “fen chi” in this paragraph may have the same meaning as “fan fong” in the 2^nd passage above.

40.  As mentioned above, Tak Chung’s youngest son was Kung Cheung.  The relevant part of the paragraph on him read:

「五世恭章迺德忠第六子妣溫氏生六子 … 諱于清乾隆年間分房遷居寶安八鄉馬鞍岡隔原籍之老圍村約十里之多。」

“The 5^th generation Kung Cheung was the 6^th son of Tak Chung.  He married Madam Wan who gave birth to 6 sons … He had, during the reign of Emperor Qianlong (of the Qing Dynasty) separated his fong (fan fong-分房), moved to live in Ma On Kong of Pat Heung, Po On which was ten lis (above 3 miles) away from his ancestral place of Lo Wai Village.  (Translation)”

It is not known if Kung Cheung had already married when he removed from Lo Wai.  The expression “fan fong” should have the same meaning as referred to above.

41.  The last member of the 5^th generation was Kan Sau Cheung, the 2^nd son of Tak Kam.  The relevant part of his paragraph read:

「五世秀章迺德金公之次子 … 諱妣于清雍正年間分支遷居于本鄉附近水蕉新立村名紅棗田。」

“The 5^th generation Sau Cheung was the 2^nd son of Tak Kam … He and his wife had, during the reign of Emperor Yongzheng (of the Qing Dynasty) branched out (fan chi-分支), moved to live in a newly established village called Hung Cho Tin which is close to our village.  (Translation)”

The expression “fan chi” again should have the same meaning as referred to above.

42.  The last relevant paragraph of this genealogy was on Wan Hok of the 8^th generation who was the only descendant of Shing Cheung in that generation.  Shing Cheung Fong is made up of his descendants and it is one of the Three Senior Fongs.  The relevant part of this paragraph reads:

「八世雲學迺香文公之次子 … 諱于咸豐年間立有田舍在隔老圍一河一隴之遠土名港頭，作田舍在此不過因耕種朝夕避風雨之便嗣後生有幾子遂將此處安居永遠樂業自諱之八世至于十二世時而老圍凡冠婚喪祭迎神賽會鄉規村例蒸嘗等事猶如未徙之前仍然是老圍之子孫也。」

“The 8^th generation Wan Hok was the 2^nd son of Heung Man … He during the reign of Emperor Xianfeng (of the Qing Dynasty) had built an agricultural hut at one river and one dune away from Lo Wai and locally called Kong Tau.  He built the agricultural hut at this place only for the convenience of avoiding the wind and rain during farm work every day.  He later had a few sons.  He therefore used this place for a good living and forever contented with his vocation.  Since the 8^th generation from him to the time of the 12^th generation, whenever there are ceremonies for adulthood, marriage, funeral and sacrifice, religious festivals (with parades of idols, stilts and floats) to receive the gods; the abiding with the rules and regulations of the village; ancestral worship and the like, they took part as if it was before they had moved out.  They are still the descendants of Lo Wai.  (Translation)”

The Tat Chau Genealogy

43.  The genealogy produced by the plaintiffs (“the Tat Chau Genealogy”) did not even cover all the Kans of Ma On Kong.  It dealt with all the Kans from Lung Kai to the sons of Kung Cheung at the 6^th generation.  It then just focused on the descendants of Kan Tat Chau (“Tat Chau”), the 2^nd son of Kung Cheung.  It therefore had a much narrower coverage than the Lung Kai genealogy even for those residing in Ma On Kong.

44.  It also had an introduction and a good part of it was similar to the introduction in the Lung Kai Genealogy.  It is possible that Hang Tai had consulted this genealogy or the writer of this genealogy had consulted the Lung Kai Genealogy or both writers had consulted the same or similar earlier sources of genealogy.  Though the Tat Chau Genealogy covered people who were born in 1923 which was after Hang Tai had completed the Lung Kai Genealogy, I do not wish to guess on which genealogy had existed earlier.  The reason being that the Tat Chau Genealogy could have been updated by the same or different persons at different times as its format may suggest.  Alternatively, the Tat Chau Genealogy now produced by the plaintiffs might not have been its first version. 

45.  The branching out to the new village of Hung Cho Tin, Ha Che and Ma On Kong have also been recorded in the Tat Chau Genealogy.  The branching out to Kong Tau was not covered as it happened at the 8^th generation of Shing Cheung Fong and was outside the scope of this work.  There are parts of this genealogy which are relevant.  When it referred to Tak Kam, it stated:

「德金妣成氏子孫遷居于紅棗田」

“Tak Kam married Madam Shing, their descendants moved to live in Hung Cho Tin.  (Translation)”

At the end of the first part of the introduction, it stated:

「四世則二房分矣」

“At the 4^th generation, the two fongs separated.  (Translation)”

It then dealt with the different types of mourning dress for different generations at funeral ceremonies despite the separation of the fongs.

46.  It then dealt with the sons of Tak Chung.  The paragraph for Hon Cheung started off with the following:

「翰璋由十八鄉遷於八鄉新輋永世居焉」

“Hon Cheung moved from Shap Pat Heung to Pat Heung Sun Che, all generations live there forever.  (Translation)”

When it referred to Kung Cheung, it stated:

「由十八鄉遷於八鄉馬鞍岡子孫永世居焉」

“Moved from Shap Pat Heung to Ma On Kong, all generations of the descendants live there forever.  (Translation)”

47.  The Tat Chau Genealogy referred to one more separation of fongs “fan fong” (分房) at the 14^th generation.  However that was not a relevant matter for this action. 

48.  Though the expression “fan fong” or “fan chi” has not been used in the last two passages, the plaintiffs do not dispute the correctness of the use of these expressions by Hang Tai in the Lung Kai Genealogy.  The plaintiffs only dispute the meaning of these expressions as used therein.  They contest that the expressions only refer to division of family property and not ancestral worshipping property.

The Omnibus Genealogy

49.  I have already mentioned that Hang Tai prepared the Lung Kai Genealogy partly to provide the materials for the compilation of the Omnibus Genealogy.  In fact the Lung Kai Genealogy contained what appeared to be editorial remarks written in red.  These remarks were reflected in the part of the Omnibus Genealogy that dealt with Lung Kai and his descendants. 

50.  In the beginning of the Omnibus Genealogy, there were 14 questions and answers.  Thirteen of them dealt with the method of and matters relating to the compilation of the Omnibus Genealogy.  The 10^th question and answer however dealt with the sharing of ancestral worshipping properties:

「問曰分支而遷者別於其原支所自出之祖祠其於原支祖祠資產何如

答曰既分支而遷不得干涉原支祖祠資產猶之原支不得干涉分支資產各從其義也故分支而遷者義不得嚮原支爭頒胙。」

“Question:       Those who had branched out (fan chi-分支) and moved away from the ancestral hall (祖祠) established by the original branch, what would be their rights regarding the ancestral worshipping property (祖祠資產) of the original branch?

Answer:           Since they had already branched out (fan chi-分支) and moved away, they must not interfere with the ancestral worshipping properties (祖祠資產) of the original branch; just like the original branch must not interfere with the assets of the separated branch.  Each branch follows what they are obliged to do.  Hence, those who had branched out and moved away, they must not demand the original branch for distribution of sacrificial meat.  (Translation)”

The Expert Evidence

51.  The plaintiffs’ expert is Professor Hugh Baker who is a recognized expert in Chinese customary law and practices.  He referred to the difference between family property and tso property.  Under the inheritance system, family property would usually be divided amongst the sons after the father had passed away.  Tso property on the other hand would normally not suffer such fate.  No one would inherit what was joint property and the tso property would remain undivided and for perpetual benefit of all descendants of the focal ancestor in whose name the tso was set up.  The institution of tso promoted unity in groups which might otherwise break apart.  It was fundamental to the purpose of setting up a tso that the tso property should be inalienable, indivisible and perpetual just as a tso should be perpetual and inclusive.  Thus normally, the tso would not be subject to the process of division called “fan ka” (分家) or “fan chi” (分支) or “fan fong” (分房).  For these reasons, he opined that it was unlikely that there was a division of Tak Chung Tso rather than the family estate of Tak Chung.

52.  However, Professor Baker acknowledged that there were instances where some tsos had their land and property alienated and ceased to exist even in name and he assumed that in some of such cases, there would have been a division of assets amongst the beneficiaries. 

53.  Regarding the branching out from a tso, Professor Baker also acknowledged a case reported in The Traditional Chinese Clan Rules by Hui-Chen Wang Liu (a monograph of the Association for Asian Studies) where a branch of a clan, having been disconnected with the organisation for nearly two centuries, applied for readmission.  The application was approved except that no member of this branch was entitled to the clan’s welfare benefits on the ground that it had made no donation during the interrupted period.

54.  He however saw no clear evidence of the division of Tak Chung Tso.  He opined that the various passages in the Lung Kai Genealogy did not specifically refer to division of Tak Chung Tso though they say that those who moved out to Ha Che and Ma On Kong had no connection with the ancestral worshipping property. 

55.  He also said that there were practical difficulties for some members to secede from the tso.  It would necessitate the sale of some tso property so that the seceding members could take the proceeds to the new settlement.  There would also be difficulties with regard to ancestral worship as the seceding members could not refrain from carrying out their worshipping duty without risking their own reputation, self-respect and genealogical identity.  He therefore concluded that the “分”, which means separation or division, as used in the Lung Kai Genealogy should refer to division of property not held in Tak Chung Tso or, though of a mere possibility, should just refer to the physical separation of different descent lines.  Hence, he opined that the removal of Kung Cheung to Ma On Kong should not have affected the rights or interests of his descendants as members or beneficiaries of Tak Chung Tso.

56.  In his supplementary report, Professor Baker said that moving elsewhere to settle permanently did not necessarily imply that there would have been a division though there may be a strong likelihood of the moving being connected with division of property.  I think all parties and their experts agree that a division of property need not result in the removal of anyone.  Members of the family may just reside in the same houses after the division.  If there should be a removal to a place far away so that communication between the two groups would become difficult, then there would be a strong likelihood for the removal to be connected with the division of property.  If the removal, though of a permanent character, should be just to a nearby place or an adjacent village so that the clansmen would communicate and participate in all religious and ancestral worshipping rituals as before, then the likelihood of a division of property to be caused by or connected with the removal may not be as strong.  An example of the later case is the removal of Wan Hok of the 8^th generation during the reign of Xianfeng from Lo Wai to the neighbouring Kong Tau as recorded in the Lung Kai Genealogy. 

57.  The defendants’ expert Professor Li Guilian of Beijing University is an expert in Chinese legal history specializing in the laws of the Qing Dynasty and the Republic of China.  He referred to the first two passages in the Lung Kai Genealogy as quoted above which stated that the ancestral property in stock had nothing to do with Hung Cho Tin, Ha Che and Ma On Kong and they had no right to interfere with such property.  Professor Li opined that a genealogy in the ancient times of China was an important documentary proof for resolving disputes in families and clans. 

58.  He also referred to the defendants’ assertion that for over 200 years prior to 1980, Kung Cheung Fong had not taken part in the management, use and enjoyment of the property of Tak Chung Tso. 

59.  He then further referred to the 10^th question and answer of the Omnibus Genealogy as an explanation of why Kung Cheung Fong had not participated in the management of the affairs and property of Tak Chung Tso. 

60.  He also referred to two decisions of the Da Li Yuan (大理院) or the Supreme Court of the Republic of China made in 1914 and 1919 saying that prolonged use and occupation of land without dispute was proof of ownership or joint ownership as the case may be.

61.  On the basis of the above, he opined that when Hon Cheung and Kung Cheung separated from the family, they had taken their due share of the property in the family.  Therefore, on the basis of the customary law and practice, Hon Cheung Fong and Kung Cheung Fong have no right in the ancestral worshipping property of Tak Chung Tso. 

62.  Apart from the above matters, there is little difference between the opinions of the experts.

Analysis and Findings

Credibility of Factual Witnesses

63.  The plaintiffs’ factual witnesses appeared to be shaky.  PW1 had not seen the Tat Chau Genealogy but he did refer to its contents in his witness statement.  This shows that part of his evidence was provided by others and did not come from him.  They were uncertain as to Kung Cheung Fong’s participation in the annual autumn worship of Tak Chung prior to 1980.  PW2’s participation of the events of Kung Cheung Fong also did not extend to before 1980.

64.  On the other hand, DW1, the 2^nd defendant, was able to tell with clarity as to what had happened since 1959 when he began managing the finance of Tak Chung Tso.  His evidence on Tak Chung Tso’s activity and spending of money was supported by the accounts prepared by him.  His evidence was clear and firm.  DW2 was also a reliable witness although his knowledge of events did not go as far as that of DW1.  In case of difference between the evidence of the plaintiffs and of the defendants, I prefer that of the defendants.

65.  On the basis of the evidence of the defendants, I find that there was at the latest since 1959 an organized annual ancestral worship of Tak Chung at his grave on the Sunday after Chung Yeung Festival.  A substantial quantity of food was purchased each time for sacrificial worship and it was later cooked and consumedat the countryside near the graveyard.  Such is also proved by the account book of expenditure of Tak Chung Tso as prepared by the 2^nd defendant since 1959. 

66.  Members of Kung Cheung Fong had not taken part in any of the worshipping events until 1980.  After the death of Hang Tai in July 1980, they went to the house of the 2^nd defendant and demanded to join in the annual worship of Tak Chung.  Since the Lung Kai Genealogy had gone missing and there was no other elder who enjoyed the same respect and authority over ancestral matters as Hang Tai, the 2^nd defendant and the other elders of the Three Senior Fongs therefore decided to accede to the demand of Kung Cheung Fong and allowed them to join in the worshipping ritual and to enjoy the benefits of Tak Chung Tso just like the Three Senior Fongs.  However, after the Lung Kai Genealogy had surfaced in 2004, they did not allow Kung Cheung Fong to participate in the activities and benefits of Tak Chung Tso.

The Lung Kai Genealogy

67.  Compilation of genealogy in a Chinese clan is indeed a serious and important matter as both experts agree.  I refer to a discussion on the preparation of genealogy in Lineage Organisation in Southeastern China by Maurice Freeman (a monograph of London School of Economics of the University of London) at page 70:

“The written genealogy was clearly an important instrument in the apparatus of the lineage.  It defined its membership.  It was revised, or at least it was supposed to be revised about every one or two generations when, by an elaborate and expensive procedure, the accumulated marriages, births, and deaths were added to the information already recorded.  I assume that on the whole a genealogy which purported to set out the founding ancestor of a lineage and all his descendants in the male line was likely to be a fairly reliable statement of historical events.  All or practically all the data it recorded were probably accurate, although it may well have omitted information which a complete register would have included.  It may be that some of the facts recorded were fanciful; the high status given to the founder of the lineage in Phoenix Village may well be suspect, for example, while it is possible that a lineage rising in status and beginning for the first time to keep a genealogy might record its earlier history in an ideal fashion; but by and large people who appeared in the genealogy were probably given in the kinship and status positions they occupied in life.  Those who outraged the morals of the community (by committing incest, for example) were likely to be left out of the genealogy or struck off if already recorded, while children given out of the lineage in adoption might not appear.  …”

68.  The Lung Kai Genealogy was prepared not only for the purpose of the descendants of Lung Kai; it was also for use in compiling the Omnibus Genealogy which covered the numerous Kan settlements in eastern Guangdong.  Since it was a comprehensive document covering all five fongs of the Kans descended from Lung Kai, the compiler Hang Tai must have been given the blessing and support from Tak Kam Fong, Hon Cheung Fong and Kung Cheung Fong in preparing it.

69.  The Lung Kai Genealogy was also not supposed to be a secret document.  In fact, by the nature of a genealogy, it should have been open for perusal by members of all five fongs.  In the premises, I do not think Hang Tai would record any controversial or disputed issue as an undisputed fact.  I in particular refer to the two passages which stated that Hung Cho Tin, Ha Che and Ma On Kong had no share in the ancestral property of Tak Chung Tso because the three fongs or branches had all separated.  For Wan Hok of the 8^th generation, though he had also moved out of Lo Wai and settled permanently in Kong Tau, he and his descendants in fact remained members of Tak Chung Tso.  Hang Tai therefore made a record of that to contrast that with the removals of Hon Cheung and Kung Cheung. 

70.  Though Professor Baker said that there was insufficient evidence to show a division of Tak Chung Tso, I find that the passages in the Lung Kai Genealogy as quoted above do show that Hon Cheung and Kung Cheung had no right to share the ancestral worshipping property of Tak Chung Tso.  The reason was most probably because they had already taken their shares upon their respective removals and had no more entitlement to the same.  There was indeed no division of Tak Chung Tso as Professor Baker suggested as the tso remained to be managed and for the benefit of the Three Senior Fongs after the two separations.

Opinions of the Two Experts

71.  Professor Baker referred to the problem of ancestral worship for Hon Cheung and Kung Cheung if they should have taken their shares of Tak Chung Tso’s property.  I do not think there was any practical difficulty in this case as Tak Chung’s grave is at Ngau Kwu Kok which is off Fan Kam Road in Pat Heung.  It is quite close to and is within walking distance to Ha Che.  It is also closer to Ma On Kong than to Lo Wai.  Despite the separation from Lo Wai, Hon Cheung, Kung Cheung and their descendants could still go to worship Tak Chung at his grave though they could not share the sacrificial meat and food provided with the resources of Tak Chung Tso.

72.  Professor Baker also opined that it was unlikely for some members of Tak Chung Tso to have seceded from the tso as it was contrary to custom, difficult to implement and likely to deal a fatal blow to the co-operation and harmony between the seceders and those remain.  However, there would only be such problems if the seceded members should continue to reside amongst the remaining members.  If the seceded members were to remove to another place permanently so that communication with the original branch would be inconvenient and the seceded branch could also organize its own ancestral worship, then these problems would not arise.

73.  Regarding the evidence of Professor Li, if he was relying on the management of Tak Chung Tso by the Three Senior Fongs for 200 odd years before 1980 as evidence that Hon Cheung and Kung Cheung Fongs have no interest in the property of Tak Chung Tso, then he has gone too far.  There is no evidence on who was managing the tso prior to the survey conducted by the Indian Surveyors before 1905.  However, regarding the period from about 1900 to 1978, there was just one manager Un Loi of Yau Cheung Fong who was replaced by Kwai also of Shing Cheung Fong.  Their work would have been supervised by Dien Cheung Fong and Yau Cheung Fong as the Three Senior Fongs were living in or adjacent to Lo Wai.  No doubt, there must have also been meetings of the elders of the Three Senior Fongs on decisions over important matters of Tak Chung Tso.  It is therefore unrealistic to assume that Un Loi and Kwai could have exercised sole control on all things of Tak Chung Tso major or minor.  Furthermore, all disposals of tso property would have been publicised by the District Officer by written notice on the notice board in Lo Wai.  I therefore accept that Tak Chung Tso was in a way managed by all Three Senior Fongs at least from about 1900 to 1978 as Dien Cheung and Yau Cheung Fongs could have exercised their veto powers with the District Officer.

74.  Professor Li also relied on the 10^th question and answer.  However, I do not know if this question and answer in the Omnibus Genealogy as published in 1928 could have represented the universal practice of all the Kans’ settlements as covered by it back in the reigns of Yongzheng or Qianlong.  I note that the nature of this question and answer is different from that of the other 13 questions and answers.  Perhaps it was written into the Omnibus Genealogy because such disputes were then prevalent.  However, I do not think it likely, as hinted by the plaintiffs, that the committee responsible for publishing the Omnibus Genealogy would have included the 10^th question and answer just to deal with the dispute between the Three Senior Fongs and Kung Cheung Fong as ventilated in this action.  I do not think this dispute was in existence when Hang Tai compiled the Lung Kai Genealogy or when the Omnibus Genealogy was published.  I have also explained why it was unlikely that Hang Tai would have written the passages as quoted above if the entitlement of Kung Cheung Fong to the property in Tak Chung Tso was then in dispute.

75.  On the point of prolonged use and occupation of land without dispute as proof of ownership or joint ownership as the case may be, I certainly agree that this is a factor that should be considered to resolve a dispute of ownership or joint ownership, but I do not think this factor alone can be decisive in all cases as the brief quotes of the Da Li Yuan decisions may suggest.

The Plaintiff’s Arguments

76.  The plaintiffs further argued that it was likely that Tak Chung Tso had not even been set up at the time of the removals of Hon Cheung and Kung Cheung.  The reason as submitted was that the generations of Kans down to Tak Chung were poor farmers and there was no property to set up this tso.  They argued that if this tso was set up after the removals, then the descendants of Hon Cheung and Kung Cheung would be its members automatically upon its setting up.  However, the plaintiffs overlooked the undisputed record in both the Lung Kai Genealogy and the Tat Chau Genealogy that there was a separation of the two fongs (二房) or the two big fongs (二大房) of Tak Chung and Tak Kam.  If there was no property jointly owned by Tak Chung and Tak Kam, then there was no need to separate the fongs as there was nothing to separate apart from properties.  According to the Lung Kai Genealogy, this separation between Tak Chung and Tak Kam included ancestral worshipping property.  If it were a mere separation of family property, it would not have been recorded in the Lung Kai Genealogy as it was not the practice of this genealogy to mention mere separation of family property.  This genealogy stated that Tak Kam’s descendants at Hung Cho Tin and the Kans at Ha Che and Ma On Kong had no entitlement to the ancestral worshipping property.

77.  Furthermore, if the Three Senior Fongs were desirous of pooling their resources to worship Tak Chung after the removals of Hon Cheung and Kung Cheung, it was not necessary for them to do so by setting up Tak Chung Tso.  To do so would expose the property place under the tso to claims by Hon Cheung Fong and Kung Cheung Fong.  They could just practice the worship without setting up Tak Chung Tso or they could have set up another tso(s) to worship Dien Cheung and/or Yau Cheung and/or Shing Cheung and state in the rules of the tso(s) that the descendants of the tso(s) should make use of the tso property to worship the father, grandfather or even earlier ancestors of Dien Cheung, Yau Cheung and Shing Cheung as well.  That would have avoided any claim by the descendants of Hon Cheung Fong or Kung Cheung Fong.  The fact that the three Senior Fongs are using the resources of Tak Chung Tso for organized worship every year for Lung Kai, Yee Sze, Fei Yin and Tak Kam (as demonstrated by the account book of Tak Chung Tso) shows that this is a permissible and viable practice.  All in all, I do not think this argument of the plaintiffs is sound.  It is more likely than not that Tak Chung Tso was already in existence upon the breakaway of Hon Cheung and Kung Cheung.

78.  The plaintiffs also attacked the Lung Kai Genealogy by saying that it was incomplete as it did not record all the male descendants of Lung Kai in the 12^th generation.  However, the plaintiffs ignored that there were recorded at the end of this genealogy some members of the 12^th generation of Dien Cheung Fong, Yau Cheung Fong, Hon Cheung Fong and Tak Kam Fong.  They have not given any evidence to show that there was any other member of the 12^th generation of any fong who was then in existence but not recorded.

79.  The plaintiffs further argued that Hang Tai might not have used contemporaneous documents to compile the Lung Kai Genealogy.  But judging from the amount of personal information available to him, I think he must have been provided with some documents by some of the Kans.  Furthermore, there must have been matters handed down by word of mouth which were not disputed by anyone at that time. 

80.  The plaintiffs also argued that Hang Tai might not have the authority of all branches or fongs to prepare the Lung Kai Genealogy.  I have already dealt with this argument. 

81.  They further argued that there is no evidence that other fongs had knowledge of the content of the Lung Kai Genealogy.  I think the important point is not whether every member of this Kan clan had knowledge of the contents.  The important point is availability.  This genealogy was obviously available to the Kans who descended from Lung Kai.  The fact that it had gone missing for over two decades because it had been borrowed by somebody is evidence that it was not kept as a secret and was available for perusal by the Kans.

82.  The plaintiffs then argued that Hang Tai must have used the expression ancestral worshipping property (嘗業) in a loose sense.  They argued that when he referred to ancestral worshipping property (嘗業) of the three ancestors, he was in fact referring to the family property (家產) left by them as there was not yet any ancestral worshipping tso set up for any of them.  This argument is however incorrect.  There was indeed a Tun Lun Tong (敦倫堂) set up for worshipping Lung Kai although no one can say when it was set up.  Since this tong was for worshipping Lung Kai, it is more likely than not that it was set up by his son or, although less likely, by his grandson.

83.  Regarding the statement in the Lung Kai Genealogy saying that the ancestral worshipping property of Tak Chung and Tak Kam having been justly divided and the two fongs should not interfere with one another, the plaintiffs also argued that the expression ancestral worshipping property (嘗業) must again mean family property (家產) as there was no question of any ancestral worshipping property for Tak Chung and Tak Kam before they die.  However, this statement may simply refer to the ancestral worshipping property held by the tsos of the ancestors of Tak
Chung and Tak Kam and managed by them.  Professor Baker also agreed that this is a possible reading of the statement.  In a way, it can be said that such were ancestral property inherited by Tak Chung and Tak Kam.

84.  Furthermore, ancestral worshipping property (嘗業) and family property (家產) mean widely different things.  The first is supposed to be kept forever whilst the 2^nd is very often divided at each generation where there are two sons or more.  Since Hang Tai Hang was given the task to compile the Lung Kai Genealogy, he must have been a man of learning.  Nobody in the position of Hang Tai would have mixed up the two expressions or their concepts.  I think Hang Tai knew what he wrote.  I do not think he would have loosely used ancestral worshipping property (嘗業) for family property (家產).

85.  I also do not think Hang Tai would have found it necessary to record a division of family property (not involving ancestral worshipping property) which was a very common event.  He did not do so for the very many divisions of this nature.  To contrast with these separations and removals, he also made a record of the removal of Wan Hok of the 8^th generation.  He specially recorded that this removal did not involve any division and there was no change in membership of Tak Chung Tso.

86.  The plaintiffs also suggested that Hang Tai might have written the passages about ancestral worshipping property after he was influenced by the 10^th question and answer of the Omnibus Genealogy.  This is a wild guess.  Nobody knows when this 10^th question and answer had come into being.  We only know that the Omnibus Genealogy was published in 1928, but Hang Tai had finished his Lung Kai Genealogy in 1921.

87.  The plaintiffs also argued that the first two passages about ancestral worshipping property quoted above were merely to record the removal and division of family property and not ancestral worshipping property.  However, Professor Baker also acknowledged that such interpretation cannot explain the use of the expression ancestral worshipping property (嘗業) in these two passages. 

88.  The plaintiffs further argued that if Kung Cheung Fong had not taken part in the organised worship of Tak Chung between 1959 and 1979 it was because they had not been notified to do so by the Three Senior Fongs.  I do not think this submission has any weight.  It was not an absence for one, two or three years.  It was from 1959 to 1979 — a span of 20 years.  I also do not think the stingy finance of Tak Chung Tso would have caused the manager of this tso to confine the worshipping group to the Three Senior Fongs.  It was only a question of a few more catties of sacrificial pork if the ten odd members of Kung Cheung Fong should also take part.

Position of Hon Cheung Fong

89.  To the extent as recorded in the two genealogies, the positions of Hon Cheung Fong and Kung Cheung Fong are identical.  Prior to 1980, both Fongs had not taken part in the joint worship of Tak Chung.  There was only a change in the attitude of Kung Cheung Fong in 1980 after the death of Hang Tai.  I do not wish to guess whether their change of stance had anything to do with Hang Tai’s death, but Hang Tai’s death certainly made the Three Senior Fongs felt the lack of sufficient proof of the division of ancestral worshipping property by Kung Cheung and they thus yielded to the demand of Kung Cheung Fong until after the Chung Yeung Festival in 2004.  Despite the change of attitude of Kung Cheung Fong, Hon Cheung Fong remained as before.  If I should be in any doubt of whether the defendants have proved their case of division of ancestral worshipping property on a balance of probability, the attitude of Hon Cheung Fong might have tilted the balance in favour of the defendants.  However, I have no doubt that the defendants have proved their case on a balance of probability.

Conclusion

90.  On the basis of my analysis and findings above, I find that Kung Cheung had taken his share of family and ancestral worshipping properties when he removed from Lo Wai of Shap Pat Heung in Yuen Long to Ma On Kong of Pat Heung in Kam Tin.

91.  I make this finding because of the clear meaning of the passages in the Lung Kai Genealogy as quoted above when read in the context of this genealogy.  There is also the fact that insofar as it can be proved by documents, Tak Chung Tso had been managed by a sole manager of Shing Cheung Fong subject to negative monitoring by Dien Cheung Fong and Yau Cheung Fong from about 1900 to 1978 and then by three managers with each from one of the Three Senior Fongs from 1978 onwards.  Kung Cheung Fong was never involved in such management from about 1900 to 1980.  They only asked to be involved in about 1982.  Furthermore, from about 1959 to 1979, there was also an organized annual worship of Tak Chung, but Kung Cheung Fong never took part. 

92.  On the above findings, the descendants of Kung Cheung, who are the plaintiffs and those represented by them, are therefore not entitled to participate in or enjoy the property and benefit of Tak Chung Tso.  That disposes of prayers 3, 4 and 5 of Statement of Claim. 

93.  Prayers 1 and 2 seek declarations that the plaintiffs and those they represent are still members of Tak Chung Tso.  Without any right to participate in the benefit and property of the tso, a mere membership of the tso may not mean anything.  Certainly they can continue to worship Tak Chung without being members of his tso.  It has also not been canvassed in this action on what such membership may entail apart from the right to share the property and benefit of the tso.  I therefore exercise my discretion not to make any declaration under the 1^st and 2^nd prayers as any such declaration does not appear to be of any use to the members of Kung Cheung Fong. 

94.  Finally, I made an order nisi that the plaintiffs do pay the defendants the costs of this action.