CHAU CHUN KUN AND OTHERS v. YEUNG HO KEUNG RENE

HCA 2369/2016

[2021] HKCFI 3507

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2369 OF 2016

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J U D G M E N T

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Background

1.  By a Declaration of Trust made in writing under seal and dated 11 March 1988 (“Trust Deed”), Yeung Luen Fong 楊聯方 (“Yeung Senior”) declared that the property described in the Trust Deed as Lot No 2211 in Demarcation District No 104 in Yuen Long (“Property”) was purchased by him as trustee for and on behalf of Fuk Hing Li San Wai Village Office (福興里新圍村公所) as the stated beneficiary (“Beneficiary”), that the purchase money was provided by the Beneficiary, and that Yeung Senior, his executors and administrators shall hold the Property, and the rents and profits and the proceeds of sale thereof, upon trust for the Beneficiary absolutely.

2.  Yeung Senior died in April 2013, and his son Yeung Ho Keung Rene 楊浩強 (“Yeung”) applied for letters of administration for his estate.  In his application, Yeung stated that the Property belonged beneficially to Yeung Senior, and declared that no property was held by Yeung Senior as trustee, or as manager, of any tso or tong.

3.  These proceedings were commenced by the Plaintiffs Chau Chun Kun (“Chau”) and Chan Koon Wa (“Chan”), on behalf of themselves and all other members of Fuk Hing Li San Wai Village Office (福興里新圍村公所), other than Yeung, to seek from the Court a declaration that Yeung holds the Property subject to the Trust Deed, on trust for Fuk Hing Li San Wai Village Office, and to restrain Yeung from disposing of or dealing with the Property.

4.  The Defence is that there was no unincorporated association known as Fuk Hing Li San Wai Village Office (福興里新圍村公所) in existence, and that the action was not properly constituted.  The original plea in the Defence, as to whether the Plaintiffs have any locus standi to bring the action, was no longer pursued at trial.  Yeung does not dispute that he holds the Property on trust, but maintained at trial his defence that there was no association known as Fuk Hing Li San Wai Village Office 福興里新圍村公所 (“the Alleged Association”).  Yeung claims (in paragraph 20 (2) of the Re-amended Defence) that the only trust declared and accepted by Yeung Senior when he purchased the Property was that he held the village hall to be built for the use of one Fuk Hing Company alias Fuk Hing Kung Sz or Sze (福興公司) (“the Company”), which is a tso or tong consisting of 21 groups or tsos having members who were indigenous villagers of San Wai Fuk Hing Li village 新圍福興里村.  The Defendant made it clear in his Defence (paragraph 3C (2)) that it is not his alternative case that there is any unincorporated association made up of indigenous villagers of San Wai Fuk Hing Li village (新圍福興里村), and does not advance any counterclaim.  Apart from claiming that there is no unincorporated association known as the Alleged Association, the Defendant did not plead and did not advance any claim that the Trust Deed was void for uncertainty, or was invalid for any other reason.  Counsel’s closing made it clear that the Plaintiffs were simply put to proof of their claims in these proceedings.

5.  The existence of the Alleged Association as the Beneficiary named in the Trust Deed, and the proper construction of the Trust Deed are the issues for determination at trial.

History of the Village

6.  Witnesses called by both the Plaintiffs and Yeung as Defendant gave evidence on the history of the village in San Tin, Yuen Long in the New Territories.  The common thread in such evidence is that forefathers of the Yeung family who were of Taishan (臺山) origin on the Mainland had come to San Tin in Yuen Long from about 1893, where they settled and acquired land there from the Chiu clan.  Their clansmen from Taishan followed, and together with other members of the Chan, Lee, Tong, Yan, Wong and Chu families, they farmed and built houses on the land which they acquired in the area of San Tin, and which expanded to form what became known as Fuk Hing Li village in San Wai 福興里新圍村, or San Wai Fuk Hing Li village 新圍福興里村.

7.  What is indisputable is that the villagers led communal lives, and took part in village activities.  It is not disputed that there was a building which had been erected on the Property in around 1967, which building structure is referred to below for convenience as the “Center”. It served as the gathering place for the villagers of San Wai.  In around 1978, another structure was erected on the Property, referred to as the “Youth Center”.  Both were used by villagers for communal and social activities.

8.  In 1988, part of the land in San Wai was resumed by the Government for the purpose of building a public highway.  This included the land on which the Village Center and the Youth Center stood.  The structures were demolished as a result, and Government undertook the expenses of rebuilding new structures to replace them, on land to be provided in the village for such purpose.

9.  It is material to relate next the contemporaneous and indisputable documentation concerning the history of dealings in the Property.

10.  As evidenced by an assignment made on 11 March 1988 (“Assignment”) between Yeung Chor Sing as vendor (“Vendor”), and Yeung Senior as named purchaser, the Property was sold by the Vendor to Yeung Senior for $73,943.  The Assignment was registered at the Land Office. At the same time, the Trust Deed was made by Yeung Senior, and registered at the Land Office, by which Yeung Senior declared that he held the Property on trust for the named Beneficiary.

11.  Shortly after the execution of the Assignment and Trust Deed, Yeung Senior in his capacity as village representative of San Wai village 新圍村wrote to the Land Office on 15 March 1988, under the letterhead of “San Wai Village Hall 新圍村公所” (for convenience, referred to as “Village Hall”).  In his letter, Yeung Senior referred to the matter of the reconstruction of the Center and the Youth Center on the Property, and stated that he had “in the name of the Village Hall” and as its representative completed the relevant transactions, and asked the Government to complete the Center and the Youth Center as soon as possible.

12.  Construction of the new Center and new Youth Center was duly completed by Government in around 1990, and these structures were handed over to the villagers for their use.

13.  According to the records kept by the Planning, Environment & Lands Branch of the Government, San Wai (Fuk Hing Li) 新圍（福興里）in Yuen Long, or San Wai (Fuk Hing Lane) 新圍（福慶里） in San Tin, is a village on the list or register of original or indigenous villages recognized by the Government as existing in 1898. Government pointed out, in a letter of 13 December 1994, that according to its records, Yeung villagers of San Wai (Fuk Hing Li) 新圍（福興里）enjoy the status of indigenous villagers, although Government had also pointed out, in a letter of 27 December 1991, that villagers were not precluded from applying for and proving their status as indigenous villagers, notwithstanding that their village was not on the list or register of recognized indigenous villages.

14.  The evidence adduced by the parties in this case acknowledge that as time evolved, people from areas other than Taishan came to dwell in the area of San Wai, and inhabitants of the village in the location now include not only descendents of the initial families who had set up the village, who may be called indigenous villagers as such, but also non-indigenous inhabitants. According to Yeung’s evidence (paragraph 4 of his witness statement), the village of “San Wai Fuk Hing Li” 新圍福興里村 has come to be called 新圍村, or San Wai village.

15.  It is also indisputable, and not disputed in this case, that in the 1980s, for the purposes of electing village representatives under the Rural Representative Election Ordinance Cap 576 (“Ordinance”), the area of San Wai was divided into San Wai (I) and San Wai (II).  Under the Ordinance, San Wai (in San Tin) was listed as an “existing village”.  A person who has been a resident of San Wai (I) or (II) for 3 years and is a Hong Kong permanent resident may be registered as an elector, to elect a “resident representative” for the village, and the function of the resident representative is to “reflect the views on the affairs of the village on behalf of the residents”, but the representative shall not deal with any affair relating to the lawful traditional rights and interests of indigenous inhabitants.

The Beneficiary

16.  In deciding the disputed issue in this case, on the identity of the Beneficiary named under the Trust Deed, it has to be borne in mind that the issue is not who are indigenous villagers who may claim particular property rights and benefits, or whether there was an indigenous village, nor who has the right to vote under the Ordinance.  Hence, the evidence adduced, that San Tin Ha San Wai 新田下新圍and San Tin Sheung San Wai 新田上新圍are villages on the List of Recognized Villages under the New Territories Small House Policy, and that each of San Wai 新圍 (I) and San Wai 新圍 (II) is listed as an “Existing Village” under the Ordinance, if relevant at all, only go towards showing whether there was, at any time, an existing association or entity known as “Fuk Hing Li San Wai Village Office 福興里新圍村公所”, or whether Fuk Hing Li San Wai village existed.  They were pleaded in the Re-Amended Defence on the issue or in the context of the constituents or membership of the Alleged Association.

17.  First, I reject the contention of Yeung, that “Fuk Hing Li (福興里)”, or “Fuk Hing Li San Wai Village Office 福興里新圍村公所” as named in the Trust Deed, were actually references to, or should be taken to mean the Company. That is simply not credible, nor does it make sense.  The Trust Deed was a formal legal document prepared by solicitors, and executed by Yeung Senior before a solicitor.  There is an interpretation clause, signed by a clerk to the solicitor, that the Trust Deed had been interpreted and no doubt explained to Yeung.  If what Yeung  Senior had intended and meant, at the time when he signed the Trust Deed, was to hold the Property on trust for the Company, “福興公司”, it would have been natural for him to have made clear his intentions to the solicitor, who would easily have inserted as the Beneficiary designated in the instrument the name of the Company, which was totally different to the name which appeared: “Fuk Hing Li San Wai Village Office 福興里新圍村公所”.  Even if Yeung Senior did not understand the English language, the name of the Beneficiary appeared in Chinese in the Trust Deed, which would have been clearly noticeable as totally different to the name of the Company. Yeung Senior passed away in 2013, and there is no evidence as to his education level, but from the way the Chinese characters were written in his signature to the Trust Deed, it would appear that Yeung Senior was literate, and would have been able to recognize the different Chinese characters for the names of the stated Beneficiary and of the Company.  It is inherently improbable, and incredible, that the Company would not be referred to by its proper name, but as “福興里” instead, in a formal document such as the Trust Deed, which affects property holding and proprietary interest, and the obligations of Yeung Senior as a trustee thereunder.

18.  As a matter of simple construction, “Li (里)” is a word in Chinese for a location, and another term for a village.  It can also mean “lane” (as evident from the English translation of “Fuk Hing Lane”, as used in one of the lists attached to the letters from the Government), and as used in the letterhead adopted for the Village Hall (explained below).  The name 福興里新圍村 should be naturally understood as the name of the village, or an address of the village, rather than as a reference to the Company.

19.  The fact that “Li (里)” was said to mean Taishan, or “kinsman (鄉里)”, or one family, does not assist the argument that the refence in the Trust Deed to 福興里新圍村公所 is a reference to the Company.  At most, it explains the Taishan origin of the village or association, or of the Company.

20.  As Counsel for the Plaintiffs pointed out, and witnesses for Yeung have also emphasized, the Company had been in existence by at least 1971, as a traditional Chinese tso/tong for the 21 different clans or tsos of the Taishan forefathers, with its own members and managers, and the Company had been holding properties in or near San Wai for investment and farming purposes.  The Company was in existence at the time when the Trust Deed was signed, and could have been named as the Beneficiary if it had indeed been intended as the party for whom the Property was to be held, but it was not in fact so named.  There was simply no reason for the Company to have been ambiguously referred to in the Trust Deed as 福興里.  The fact that the Company was not named in the Trust Deed is itself clear evidence that the Company was not in fact the intended Beneficiary.

21.  Yeung Senior expressly declared in the Trust Deed that the Property was purchased by him under the Assignment of the same date for and on behalf of the Alleged Association as the stated Beneficiary, and further, that the purchase money of $73,943 (“Purchase Money”) was in fact provided by the Alleged Association.  Yeung Senior, and his estate and administrator, as parties to the Trust Deed, are clearly estopped from asserting or contending otherwise.  Even if it was the case (and I make no finding in this respect) that the Purchase Money was in fact provided by parties other than the Alleged Association (as Yeung sought to claim), Yeung is precluded by contractual estoppel and/or by deed to contend that the state of affairs agreed and accepted at the time the Trust Deed was concluded was not true.  In the recent case of Ng Yuk Pui Kelly v Ng Lai Ling as the executor of Estate of Dung Wai Man, Deceased & ors [2021] HKCFA 40, the Court of Final Appeal referred to the leading authorities of Peekay Intermark Ltd v Australia and New Zealand Banking Group Ltd [2006] 1 CLC 582 and Springwell Navigation Corp v JP Morgan Chase Bank [2010] 2 CLC 705, confirming that parties to a contract can agree that a certain state of affairs should form the basis for their transaction, whether it be the actual case or not, as parties are entitled to agree what they desire.  Parties can agree to assume that a certain state of affairs is the case at the time the contract is concluded or has been so in the past, even if that is not the case, so that the contract is made upon the basis that the present or past facts are as stated and agreed by the parties, even when they know that state of affairs to be untrue.  Neither party can subsequently deny the existence of the facts and matters upon which they had agreed.

22.  Estoppel was not argued at trial, but on the evidence, I fail to see how Yeung can now, as the administrator of the estate of Yeung Senior, deny that the Purchase Money was not provided by the Beneficiary, or that the Property was not purchased for and on behalf of the stated Beneficiary, to be held on trust for the stated Beneficiary.

The Alleged Association

23.  Under the Trust Deed, the Beneficiary for whom the Property was declared to have been purchased and to be held was the Alleged Association.  Yeung seeks to contend that there was and is no such association in existence, but as he has not raised any specific plea by way of defence, eg of invalidity of the trust under the Trust Deed, he only put the Plaintiffs to proof of the existence of the Alleged Association as they allege.  As Counsel for Yeung pointed out, Yeung has not put forward any counterclaim, that the Property is held on trust for the Company, or any other third party.  He has obviously also abandoned the claim made in the affirmation made and filed, in applying for administration of Yeung Senior’s estate, that the Property belonged beneficially to Yeung Senior.

24.  As Counsel for the Plaintiffs submitted, all that is required for an unincorporated association is for there to be “two or more persons bound together for one or more common purposes, not being business purposes, by mutual undertakings, each having mutual duties and obligations, in an organization which has rules which identify in whom control of it and its funds rests and upon what terms and which can be joined or left at will” (relying on and citing Conservative and Unionist Central Office v Burrell (Inspector of Taxes) [1982] 1 WLR 522 (CA) at 525).

25.  In this case, it has to be borne in mind that the Alleged Association involved villagers cohabiting in a traditional rural village, bound by traditional customs.  As the evidence of the parties reveal, the early activities of the villagers were essentially farming and their rural lives would have been simple.  It is reasonable to assume that not all the villagers would be sophisticated, or even educated, or literate.  It would not be reasonable to expect the existence of full, written documentation and records of the setting up, running and management of such an Alleged Association throughout the period of its existence.

26.  It is also pertinent that whilst a declaration of trust must make it sufficiently clear who the beneficiaries are, or what the object of the trust is to which trust property is to be applied, the time for ascertaining the certainty of objects is at the creation of the trust.  As the learned authors of Lewin on Trusts (17^th edition) pointed out at para 4-34, it is enough if the beneficiaries can be ascertained with the requisite certainty at the time of creation of the trust, and any difficulty in doing so which may arise later will not invalidate the trust (Re Hain’s Settlement [1961] 1 WLR 440, CA).  The relevant time for ascertaining whether there was in existence the Alleged Association which was named as the Beneficiary, should be the time of the creation of the trust under the Trust Deed, in 1988.  If there were persons bound together at that relevant time, albeit loosely and without formality, for the Beneficiary to be ascertained and identified with the requisite certainty, that should be sufficient.  As Counsel for the Plaintiff rightly submitted, the membership of an unincorporated association can be fluid, and may also evolve through time when the rules governing its membership may be changed.

27.  The witnesses who were called to give evidence at trial were boys at the time of the events related by them in the 1960s and 1970s.  They could only repeat what they recall having heard from their fathers and relatives, when they were young.  Their testimony of what they can truthfully recall, of parts of the conversation they had overheard, or fragments of information which their elders had relayed to them of events or meetings, is highly unreliable.  The oldest of the witnesses who made a witness statement could not be called at trial due to his advanced age and poor health. Nevertheless, there were photographs and some older documents included in the agreed bundles which served as evidence, and the Court has to decide whether, and what, inferences can properly be drawn from such documentary evidence.

28.  Where there is conflict between the evidence of the Plaintiffs and that of Yeung, I prefer the evidence of the Plaintiffs, as I find Yeung’s evidence to be unreliable.  At the forefront, the statement made in his affirmation, filed to apply for administration of the estate of his father, that the Property was beneficially and solely owned by Yeung Senior, was untrue, and known by him to be untrue, as he was able in these proceedings to depose to the facts of Yeung Senior’s acquisition of the Property, the terms and conditions allegedly imposed by the Vendor as to the Property being held on trust by Yeung Senior, and the execution of the Trust Deed.  Yeung’s affirmation clearly reflects his refusal to accept that the Property was held on trust for the Plaintiffs, as is apparent from the Defence, and that such refusal was to the extent that he would be prepared to make a false declaration on oath.  The fact that Yeung’s evidence in this case is totally leaned against the Property being held on trust for the Plaintiffs can also be seen from the fact that Yeung initially claimed in his witness statement that the land on which the Center and the Youth Center had originally stood was owned by the Company.  This obviously lent more credence to his assertion that the Property was held on trust for the Company.  However, in his supplemental witness statement, Yeung had to accept that upon further research, the land on which the structures had stood was not in fact owned by the Company, as he had originally maintained.

29.  According to the evidence of the Plaintiffs, the Alleged Association was an association of the villagers of San Wai.  Chan and Chau do not dispute the history of the village, that families of Taishan origin had moved from the Mainland to the area of San Tin in Yuen Long, and that San Wai village was established by these families.  Nor do they dispute that some of the indigenous villagers of San Wai had formed and set up a tso known as the Company, which separately held land in the area, was separately managed by representatives of the 21 family representatives, and that the proceeds and profits of the Company were distributed amongst the tso members.  Their evidence is that separate to and distinct from the Company, villagers of San Wai had gathered and formed a village association or union, principally to provide a gathering place for the villagers of San Wai, to meet socially and for mutual welfare.  According to Chan, it was in about 1967 that the villagers of San Wai decided to raise funds and pool their resources to construct a village hall which became the original Center.  As Chan explained, the villagers at the time did not have legal knowledge and the intention then was simply to form an informal association of all the dwelling owners, to provide a communal centre and social amenities for the inhabitants of the village.  On Chan’s evidence, the original Center was built with funds contributed by all the members of this association, who were not confined to members of the Company.  There is some support for Chan’s evidence, as to contributions made for the construction of the original Center, in the form of a receipt dated 7 January 1967, received from one Mr Ng, as payment of a donation of $20 for the construction of the Center.

30.  I agree with Counsel for the Plaintiffs, that there is nothing unusual in a welfare association of this sort, formed for the pursuit of common interests.  In the case of the rural village in this case in the 1960s, the common interests binding the members together would be the management of affairs affecting the livelihood and common interests of the villagers, the provision of recreation and welfare for the villagers and the pursuit of benefits and privileges from the Government.

31.  Consistent with the evidence of Chan, that the villagers had formed the Alleged Association in about 1967 in order to build the village hall which became the Center, there is a photograph showing the Center with the date 1967, and the name San Wai Village Hall 新圍村公所displayed.

32.  I do not agree with the suggestion that the names San Wai Village Office 新圍村公所, and Fuk Hing Li San Wai Village Office福興里新圍村公所, can only be the names of the building structure of the Center, and that there can be no unincorporated association bearing that name.  In my judgment, these names may also be of the association itself, as 公所can just as well refer to a club.  Clubs are common associations which are not incorporated.

33.  On the Plaintiffs’ case, there was no formal documentation for the establishment of the Alleged Association, as the households of the village simply gathered together, met and discussed matters as and when required.  According to the Plaintiffs’ evidence, there were no written rules or constitution, the villagers simply followed traditional customs, and elected a representative from amongst themselves as the village head.  Initially, only those with registered or recognized households within the village would be entitled to elect their representatives, but as time evolved, the people who resided in the village included not only the descendents of the original 21 families from Taishan, but other families from Taishan, and in time, residents of the village included not only indigenous villagers but also non-indigenous villagers.  In time, therefore, all resident villagers were permitted to participate in meetings of the Alleged Association and to express their views on matters affecting the village.  The Plaintiffs claimed that at all material times, the Center could be used and was used by all villagers of San Wai, with no distinction made between indigenous and non-indigenous villagers.

34.  There is no dispute that in around 1988, the original building structure which was the Center was demolished, together with the Youth Center, to make way for modern development.  Part of the land was resumed by Government, which agreed to construct a new building to replace the original and demolished Center and the Youth Center.  Such construction commenced in 1989 and was completed by the end of 1990 on land provided by the villagers.  It was as a result of the resumption, the demolishing of the original building and the intended reconstruction of the new building that the relevant Assignment between the Vendor and Yeung Senior, and the Trust Deed, were executed in March 1988.  There is no dispute that Yeung Senior took the assignment of the Property on trust, so that the new Center could be built on the Property.

35.  According to the Plaintiffs, it was the same Alleged Association which had formerly raised funds and received contributions and donations for the construction of the original Center, which arranged for the reconstruction of the new Center in 1989/1990, and later managed the new Center after its completion.  In 1988, Yeung Senior was the village head or representative, and the Property was sold by the Vendor and assigned to Yeung Senior, for use by the Alleged Association in the reconstruction of the Center for the benefit of the villagers.

36.  Counsel for the Plaintiffs highlighted the fact that the Assignment and Trust Deed were all formally prepared by solicitors, and duly and properly reflected the intentions of the members of the Alleged Association, the Vendor and Yeung Senior, that the Property was to be held on trust for the Alleged Association.  As I have explained in the earlier parts of this Judgment, the Beneficiary is clearly stated to be the Alleged Association, and I have no basis to find otherwise.

37.  The letter from Yeung Senior immediately after his execution of the Assignment and the Trust Deed supports the Plaintiffs’ case on the existence of the Alleged Association.  On 15 March 1988, Yeung Senior wrote to the Government, as representative of San Wai village, referring to the construction of the Center, and stating that he had in the name of 新圍村公所completed the transactions.  It is noteworthy that the letterhead bore the name of “新圍村公所 San Wai Village Hall”, and the address was stated as: “Fok Hing Lane San Tin 新田鄉，福興里，新圍村”.  Yeung Senior referred in the letter to the Village Hall as that of San Tin Village, Fok Hing Li, San Wai Village.  These contradict the claim made by Yeung, that “Fuk Hing Li” used in the Trust Deed must be a reference to the Company.  In the letter of 15 March 1988, “Fuk Hing Li” was in fact used to refer to the village, and as the address of the Village Hall.

38.  Another letter from Yeung Senior dated 13 January 1980, sent as village representative and under the letterhead of the Village Hall, and addressed to the Government, referred to the indigenous village as 福興里（新圍）Fuk Hing Li (San Wai), and 新田福興里村San Tin Fuk Hing Li village.

39.  In a letter dated 7 November 1988 from the District Lands Office to Yeung Senior, in reply to his letter of 28 September 1988, Yeung Senior was addressed as the representative of “新圍村San Wai village”.

40.  On 1 September 1989, Yeung Senior as the representative of San Wai village wrote to the Government, to apply for a licence for the Center (“Licence”), to cater for the recreational use of the Center by the villagers, and to be managed by the village representative of San Wai village.  The letter stated that the relevant licence was to be issued in the name of the village representative of San Wai, and that the interests in the property did not vest in him personally, but was vested in him in a representative capacity.

41.  The Plaintiffs submit that there is further evidence of the existence of the Alleged Association, from other and later contemporaneous documents.  From 1991, there were records of meetings held amongst villagers of San Wai, to discuss matters concerning the Center.  The 1^st meeting of the “Preparatory Committee” of San Wai village was held on 10 February 1991, as evidenced by the minutes of the meeting.  The matters discussed were the setting up and division of work of the Preparatory Committee, and the “licence holding” of the Center.  The minutes of the meeting noted that Yeung was then the holder of the Licence of the Center.

42.  The minutes of the meeting of the Preparatory Committee held on 5 May 1991 record matters such as the cleaning of the Center, the use of the pedestrian way behind the Center, and the fixing of a date for the opening of the new Center.

43.  A bank account was also opened in the name of the Village Hall (新圍村公所), as evidenced by the bank records of 4 May 1991.

44.  The minutes of the 3^rd Preparatory Committee held on 2 June 1991 record discussions on the name to be adopted for the Center and the Youth Center.  Choices included “福興里新圍村公所”, “新圍村公所” and “福興里村公所”, and the resolution passed was to use “福興里新圍村公所” for the Center, and “福興里新圍村青年中心” for the Youth Center.

45.  A photograph (said to have been taken either in 1988, or 2016) shows a sign depicting “新圍福興里村 San Wai Fuk Hing Lane Village”.

46.  The only evidence, that the Vendor had imposed terms for the trust, came from Yeung, and his evidence was allegedly based on what he had heard from Yeung Senior, when Yeung was young. The alleged conditions were that the Center to be rebuilt on the Property was to be named “Fuk Hing Li San Wai Village Hall 福興里新圍村公所”, to preserve the Taishan origin of the village, that the Center should be used by indigenous villagers, and that the Property was to be held on trust for the Taishan indigenous Fuk Hing Company. Yeung’s assertions are unsupported by any other witness or document, and is unreliable. I have already rejected the claim that the Property was held on trust for the Company, and clearly there are no other terms imposed in the Trust Deed as alleged. In any event, even if Yeung’s claims were true, the fact that the Center was to be named Fuk Hing Li San Wai Village Hall, instead of San Wai Village Hall新圍村公所 (the name of the original Center), does not affect my determination on the existence of the Alleged Association at the time of the Trust Deed.

47.  Having considered the documentary evidence, and the evidence and testimony of the witnesses in this case, I find that the village had been interchangeably called福興里新圍村 (Fuk Hing Li San Wai village) and 新圍福興里村 (San Wai Fuk Hing Li village), but that both names referred to the same village in San Tin.  Even on Yeung’s own evidence (paragraph 12 of his witness statement), the original village set up by the Taishan forefathers was called 福興里村 (Fook Hing Li village), and gradually became known as 新圍福興里村 (San Wai Fuk Hing Li village). “Fook Hing” had the Taishan connotation, and “San Wai” was a common name or reference to a village, literally meaning newly formed village. The lists of villages kept by the Government depict different “San Wai (新圍)” villages in the New Territories.  The fact that since the 1980s, the relevant village had been divided into different parts for purposes of different elections under statute, and the fact that there are indigenous and non-indigenous villagers with different rights and benefits, do not affect the issue of whether there was at the relevant time the Alleged Association in existence.  On a balance of probabilities, I am satisfied on the evidence that at the material time when the Trust Deed was signed, there was the Alleged Association in the name of福興里新圍村公所.  It was the same association which had been formed to set up the original Center in 1968. That was an association of the inhabitants of San Wai village, which village had been referred to by villagers and outsiders interchangeably as “新圍福興里村” or “福興里新圍村”, but the association was of that one same village: the Fuk Hing Li village in San Wai, or the Taishan San Wai village.

48.  The members of the Alleged Association could be ascertained with the requisite certainty on 11 March 1988, and I see no reason why Chau and Chan, as residents of San Wai village and members of the Alleged Association, cannot enforce the trust against Yeung, the administrator of Yeung Senior, the Trustee named in the Trust Deed.

49.  Being an association formed in 1968 by inhabitants of a traditional rural village, I do not consider that the absence of written and formal rules concerning membership eligibility, rights and obligations must mean that there was no such association formed.  The village members must have simply relied on their trust for each other and their oral discussions and agreements, and abided by the decisions of the village elders and heads of households as to what rights and privileges each household or member had.

50.  The meetings of the village members of the Alleged Association on 10 February 1991 and 2 June 1991 discussed the names to be given to the new building structures of the village (ie the new Center and Village Center), and do not in my judgment contradict the established existence of the Alleged Association itself.  Nor do I find the minutes of 24 September 1995 contradictory, as they record the villagers’ discussion on how the title in the Property should or may henceforth be held or registered, as opposed to its being held on trust as provided for under the Trust Deed.  The Alleged Association was entitled, through its members, at any time to change its own rules on eligibility to membership, rules governing membership, and its own name, at different times during its subsistence from 1967.

Disposition

51.  I am satisfied on a balance of probabilities that the Plaintiffs have established their case and their entitlement to the remedies sought. Accordingly, I grant the relief claimed by the Plaintiffs in these proceedings, in terms of paragraphs 1 to 3 of the prayer in the Re‑Re‑Amended Statement of Claim, with an order nisi that the costs of the action are to be paid by Yeung.