NISHIMATSU CONSTRUCTION CO LTD AND OTHERS v. TANG HON KEUNG AND OTHERS

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JUDGMENT

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1. This is the trial of an Action whereby in substance the 2nd Defendants ("Tang Clan") asked the Court to declare that they are the owners of land in the New Territories of an area of 4,64 acres and not of 0,15 acres which smaller area was recorded on the Block Crown Lease and on the basis of which 0.15 acres, the Tang Clan had been paying Crown Rent to the Hong Kong Government as landlord for the last 90 years. What triggered off this proceeding was the resumption of the land in that area and to put it bluntly, the 2nd Defendants are interested in the compensation money which is payable if the Tang Clan can establish that they are the owner of the land 30 times larger than what was stated in the Block Crown Lease. Although proceedings were started with the Crown as the 3rd Plaintiff, in substance and reality the Tang Clan are the plaintiffs in the position of Counterclaimants. In order to determine whether there is any merit in the claim of the Tang Clan. it is necessary to go back somewhat into the early history of the New Territories.

2. The village of Wing Lung Wai ("Village") had been inhabited by the Tang community (the predecessors of the Tang Clan)for a long time Prominence had been achieved by the Tang community of Wing Lung Wai even in the days of the Ching Dynasty as attested by visible signs of high official positions held in the Ching Dynasty by members of the Tang family. When the British came to the New Territories in the late 1890s, the ownership of land in the New Territories was formalised by the new land system instituted by the British Government in Hong Kong. The ownership of land in and around the Village was affected by this new system.

3. The British brought to Hong Kong at the turn of the century, Indian surveyors who had mapped land in India. A district by district land survey was carried out in the New Territories by these surveyors and the land surveyed was then recorded on D.D. Field Sheets showing the various plots of land. Each Demarcation District was the subject of a separate Field Sheet. In each Field Sheet, there were written the various Lot Numbers of plots of land More or less contemporaneous with the creation of the Field Sheets, there came into being also the Field Area Statements which set out by each Lot Number, the area in acre or decimal point of an acre and the description of the nature of the land in question.

4. Consequent upon the making of the Field Sheets and Field Area Statements, claims to land and objections were invited and the Land Court decided on these matters. Block Crown Lease then came to be drawn and there was the formal creation of ownership of land as set out in the Block Crown Lease. The Block Crown Lease in an unusual adoption by the British of the devise of a lease which sets out in a schedule against each Lot Number, the name of each owner in that Demarcation District, the acreage of his land holding, the description of the land, the class of rent payable and the actual rent payable. Also recorded against each entry is the term of year of the particular lease. Apart from the aforesaid schedule attached to the Block Crown Lease there is also a plan attached and on that plan would be written the various Lot Numbers. Therefore it can be seen by the means of one Block Crown Lease, all the individual leases granted by the Crown in that Demarcation District of New Territories are contained in that one Block Crown Lease. No individual lessee had a copy of his own individual lease and the one and only original Block Crown Lease of each Demarcation District was always kept at the local District Office.

5. In this case, the particular Block Crown Lease ("Crown Lease") is more or less as generally described above, The Crown Lease of Demarcation District 109 was dated 24th January 1905 made between King Edward VII and the persons, clans, families and tongs whose names are set out in the schedule attached. The material parts of the Crown Lease Teads (bold type face supplied by me):-

"Now this Indenture witnessth that in consideration of the yearly rents and covenants and stipulations hereinafter reserved and contained by and on behalf of each Lessee respectively to be paid, done and performed, His said Majesty KING EDWARD VII doth hereby grant and demise unto each Lessee All that piece or parcel of ground situate, lying and being Survey District No. 109 in the New Territories in the Colony of Hong Kong set out and described in the Schedule hereto opposite to the name of such Lessee AND which said piece or parcel of ground is more particularly delineated and described on the plan or plans of Survey District No. 109 attached hereto according to the lot number set out in the Schedule hereto opposite to the name of such Lessee and marked on the said plan together with the . . . . "

The schedule ("Schedule") attached to the Block Crown lease shows the following relevant entry:-

The plan ("Plan") attached to this Block Crown Lease through the long passage of time is no longer legible.

6. It is because the Plan is now illegible which makes it possible for the Tang Clan to raise the contention that they are entitled to a declaration of ownership of a land, for greater in acreage than that shown in the Schedule of the Crown Lease, namely that they are the owners of land of 4,64 acres rather than 0.15 acres. Rectification which was pleaded by the 2nd Defendants (and which is bound to fail if pursued at the Trial) was wisely abandoned by Mr. Tang at a very early stage of the Trial and the issue left to be decided by the Court is what is said to be a construction of the contract, based on what Mr. Tang loped to establish as the discrepancy between the relevant acreage entry on the Schedule and the area of the land in the unreadable Plan as he hoped the Court will find. The process by which Mr. Tang asked me to reach the conclusion of larger area, contrary to the express entry in the Crown Lease of 0.15 acre is as follows:-

I have put the case of the Tang Clan in such a stark and arguably primitive terms because ultimately there is no getting away from the reality of what the Defendants are seeking to do and if I find after full consideration that they are entitled, then it will be my duty to s hold no matter how much I dislike the lack of merits of Mr. Tang's case.

7. The Field Sheet is the key document and the starting point of Mr. Tang's exercise. The exact date of the Field Sheet is not known but it is likely to be before the coming into being of the Crown Lease. The Field Sheet shows the area in question with black markings of 2599, 2601 and 2602 being at about 2 o'clock position, one small box with black marking of 2600 to the left of the 3 small boxes at about I o'clock position and another small box with black marking of 2621 at about 8 o'clock position For the sake of convenience I will call the 3 small boxes at 2 o'clock as Land A. the small box at 1 o'clock as Land B and the small box at 8 o'clock as Land C. There is agreement between the parties that Land A, Land B and Land C together amount to about 15 in Lot 424 granted by the Crown. In the middle of the area in question on the Field Sheet and to the right of Land C is marked in black 2611 and immediately below that black marking of 2611 is written in red 424. Mr. Tang suggests that this whole area together with Land A. Land B and Land C are what is later designated as Lot 424.

8. To make some sense of the Field Sheet, Mr. Tang contends that it is also necessary to read the relevant entries in the Field Area Statement. There are two entries next to 424. They read as follows:-

Marrying the two documents, namely the Field Sheet and Field Area Statement, Mr. Tang submits that therefore the first 424 in the Field Area Statement is what he would contend as the Floor or Thrashing Floor of 15 acre which is made up of Land A, Land A, Land B and Land C in the Field Sheet. The second 424 in the Field Area Statement is what Mr. Tang would contend as being Uncultivated land or Waste of 4.49 acres which is made up of the large area of land in the Field Sheet surrounding Land A, Land B and Land C. I will call this large piece of land as Land D. The main thrust of Mr. Tang's case on these two documents is that each of Land A. Land B, Land C and D is part of Lot 424 and that the totality of Land A, Land B, Land C and Land D make up the whole of Lot 424 which will on measurement found to be 4.64 acres.

9. Pausing here it seems to me not unreasonable to assume that, if both the Field Sheet and the Field Area Statement came into existence more or less at the same time and at a time probably before the relevant decision of the Land Court and certainly before the Block Crown Lease came into being, Lot 424 was designated (before the Block Crown Lease was created) to consist of .15 acre of what might be described as Thrashing Floor land and 4.49 acres of what might be described as Uncultivated land.

10. Because of what appear on the Field Sheet and Field Area Statement, Mr. Tang then asked me to find that on the unreadable Plan and that the figure 424 would appear in the middle of the equivalent of Land D in the Plan and that the figure 424 would not appear in any of the equivalent Land A boxes, Land B box or Land C box in the Plan. The significance of his submission is that I must therefore conclude and find that the Plan will show Lot 424 as comprising the would of Land A, Land B, Land C and Land D. It is this jump from what appears in the Field Sheet to what must appear on the Plan which I find difficult to accept. It must not be overlooked that the two documents, Field Sheet and Plan served two very different purposes. Just because in the Field Sheet and in the Field Area Statement Lot Numbers had been assigned and marked on the Field Sheet, it does not follow that the same numbers will appear in the Plan which is a land grant document or that the same Lot Number must appear in the same place in the Plan as appeared in the Field Sheet and this is specially so in the case of a particular Lot which is made up of several plots of land. I do not know what intermediate steps had been taken or intermediate documents which might have come into existence between the time of coming into existence of Field Sheet and Field Area Statement on the one hand and the time of coming into existence of the Plan on the other hand. It is really too speculative for me even on a balance of probabilities to come to a view as contended by Mr. Tang.

11. The matter however does not stop with the Field Sheet and Field Area Statement. The most important document which I must take into account to reach a decision as to what the Plan might look like is also to have regard to the Schedule, which is the most significant piece of information because it is contemporaneous with the Plan, it is created for the same purpose as the Plan namely for land grant, it is explicit and finally because it contained much other relevant information, such as particulars of other nearby Lots.

12. The first material information derived from the Schedule is that Lot 424 shows only a small size area of 15 acre and not a large area of either 15 acre plus 4.49 acres or 4.64 acres. This is a crucial piece of information because the natural assumption is that everything is in order and that the Plan goes will with the Schedule and not that there were mistakes and that the Plan was in conflict with the Schedule. The second piece of information s that the rent is recorded at $. 15 thereby confirming that the area of grant under Lot 424 being small and not large. The third important piece of information from the Schedule is that a scanning of the Schedule shows a number of Lots such as Lot No 412, 413 and 428 which appear in both the Field Sheet and Field Area Statement are missing from the Schedule. Mr. Justice Hunter on this aspect in Lintock v AG [1985] 2 HKC 555 at 564 H concluded the reason being:-

"either because the claimants originally were able to produce nothing by way of title or because they all said No, it is not worth paving a rental of $1 an acre for waste land".

The evidence of Chong Wai Choi for the Government is on a similar theme. The significance of the above is that it is quite common place for a piece of land which had been surveyed and recorded with a Lot No in the Field Sheet and in the Field Area Statement not being the subject of any later Block Crown lease grant. It is therefore most probable that the Plan of the Crown Lease did not have exactly the same Lot Numbers recorded in the Plan as appear in the Field Sheet and the Lot No figures would not necessarily appear in the same way and at the same place covering the same plots as in the Field Sheet.

13. The above considerations all seem to me to point powerfully against the finding sought by Mr. Tang of what ought to appear in the Plan. On the evidence placed before me, I am not prepared to come to a finding that the Plan would show Lot 424 the subject of the land granted in the Crown Lease as comprising the whole of Land A. Land B, Land C and Land D.

14. Mr. Tang however submits that I should not confine myself to only he Schedule or the Field Sheet or the Field Area Statement but I should go on to consider also the various Land Control Sheets namely the Oldest Land Control Sheet or Pre-1955 Control Sheet, the 1955 Land Control sheet and the 1975 Land Control Sheet. The 1955 and 1975 Control Sheets had obviously been created too distant in time form the Plan to be of much assistance but even the Oldest Control Sheet is not of much probative value to me because I do not know exactly when it came into being, how it came into being and on what it was based. Much speculation was lavished on this so called Pre-1955 Control Sheet and it would be unjustified speculation to say whether the Pre-1955 Plan was produced directly from the Plan or if not, how indirectly it might have been produced. Mr. Chong in evidence referred to the World War when many many documents were lost or destroyed. The Pre-1955 Control Sheet is not in good condition and difficult to read properly. In many respects it is different from the Field Sheet. In all the circumstances, I do not believe that it is of value to me or of sufficient value to me as to overcome the considerations which I have outlined earlier deriving from the Field Sheet, Field Area Statement and Schedule.

15. I have considered all the materials presented to me which Mr. Tang submits I should take into account and I find that it is more likely that the Plan would have shown the Lot 424 granted in the Schedule of the Crown Lease as being limited to Land A, Land B and Land C. I find as a fact that the Plan would have shown the Lot 424 area granted in the Schedule as comprising the Land A boxes, the Land B box and the Land C box in the similar way as shown in the Field Sheet. I find therefore as a fact that the Plan would have shown the Lot 424 area granted in the Schedule as consisting of 15 acre I also find as a fact that the Plan would not have shown Lot 424 area granted in the Schedule as comprising Land A boxes, Land B box, Land C box and Land D I therefore also find as a fact that the Plan would not have shown the Lot 424 area granted in the Schedule as consisting of 4.64 acres.

16. On the basis of the above findings of facts, the claim of the Tang Clan must fail but in the event that I am wrong and that it might be held that the figure 424 could be found written in the middle of the land on the Plan, what would be its significance. In my view, the Defendants would still have failed. Because of the proved facts derived from the Schedule that many Lots recorded in the Field Sheet and Field Area Statement were not the subject of a grant, it must follow that the mere presence of the figure 424 or 411 or 412 on the Plan is not conclusive or indicative that there was a grant of the whole of such Lots As a matter of construction, the Schedule and the Plan can be construed as being consistent and without conflict. The presence of the figure 424 in the Plan could and ought logically to confirm that the Schedule acreage of 15 is correct and that the total land granted under Lot 424 comprised of Land A, Land B and Land C. It is not the function of the Court to find conflict where there is none and where the evidence does not point compellingly to a conflict. As was said by Hunter, J. in the Lintock judgment it was likely that no grant was given because entitlement to it was not shown and because it was a large amount of money to have to pay for what was considered useless land In this respect I draw comfort from the fact that the other two large pieces of land nearby recorded on the Field Sheet and Field Area Statement, being Lot 412 (next to the village) consisting of 3.6 acres and Lot 427 consisting of 3.03 acres were also not the subject of the grants. It is perfectly sensible for villages not wanting to pay a large amount of crown rent for useless land even if they could prove their titles at the Land Court.

17. In my judgment what is fatal to the whole case of the Defendants is the double presence in the Schedule of .15 acre and $.15 rent. These are both express and clear and independent provisions which were acted upon by the parties and in the case of the rent the basis upon which the lease was allowed to continue by the Crown and in the case of the 15 acre it was upon which that the Crown granted repeated waivers. Even if the Plan less weight on these two important provisions and give primacy to the Plan, specially when the Plan is not even legible. Further, one muse not overlook the fact that the general principle is that text prevails over diagram or plan and not the other way round.

18. Mr. Tang relied heavily upon the appearance of the words "Thrashing Floor Waste" in the Schedule as showing that in any event there was a conflict or ambiguity because the Field Sheet and Field Area Statement show Land A, Land B and Land C as being Thrashing Floor and not Waste which is description of the area of 4.49 acres in the Field Area Statement ant therefore, there must be an error with the entry of 15 acres. With great respect to the submission, I see firstly no reason to say that there was an error with the acreage and secondly there is no reason to confine the possible error to the acreage. It is more likely that the falsity in the description was the unnecessary use of the word Waste. In this context it should be pointed out that a reading of the "Record if otherwise than Cultivated" Column in the Field Area Statement will show that "Fallow" in the Field Area Statement was what was described and recorded in the Schedule as Waste. Lot 404, 406, 410, 411 and 425 in the Field Area Statement under Lot 424. The appearance of Waste under Lot 424 in the Schedule does not persuade me that on a proper construction, the area granted to the Defendants ought to be 4.64 acres.

19. During the one week hearing, I listened to the evidence and the skilful submissions of Mr. Tang and I have observed at close quarters the expression of strong feelings of the Defendants and I could understand the importance attached toe this case by the members of the Tang Clan Much of the evidence presented to me however are really only of marginal interest and value and at the end of the day the weight of the vital pieces of evidence which I had referred to earlier are such that with all the best will in the world, I could no but come to a firm conclusion that the case contended by the Defendants is not viable. When one stands back a little from the forensic legal analysis and the skilful advocacy, it is difficult to divorce oneself from one basic common sense reaction to the present claim. The King's grant of the land (which is to be construed strictly against the citizen grantee) was for a small landholding requiring the payment of a very modest low rent of $.15 which was paid every year. No village or clan could be mistaken that in fact it had been given a very large piece of land. The Defendant's ancestors had a realistic appreciation of what they owned and they acted on that basis, paying the low rent accordingly. I regret that I am unable to give to the Defendants what in law they did not and do not own. In the circumstances, the Counterclaim must be dismissed and I make the declarations sought by the Government. There shall be an order nisi that the Government is to have the costs of the Action and of the Counterclaim.