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

CACV 298/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 298 OF 2007

(ON APPEAL FROM HCA 914 OF 2005)

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J U D G M E N T

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Hon Cheung JA :

The appeal

1. Kan Tak Chung Tso (簡德忠祖) is the subject matter in dispute in this appeal.

2. The plaintiffs who are the managers and members of Kan Kung Cheung Tso (簡恭章祖), brought this action on behalf of themselves and members of Kan Kung Cheung Tso.  They claimed that they are members of Kan Tak Chung Tso and they are entitled to, among other things, an interest in Kan Tak Chung Tso.

3. The defendants who are managers of Kan Tak Chung Tso resisted the claim.

4. Deputy High Court Judge Louis Chan dismissed the plaintiffs’ claim.  He accepted the evidence called by the defendants and rejected the evidence of the plaintiffs.  The plaintiffs now appeal to this Court.

Background

5. The parties are members of the Kan clan who have settled in the New Territories for many years since the Tsing dynasty.  The exact date of settlement is not clear but should be around the early part of the 1600’s.

The 1^st, 2^nd and 3^rd generation

6. This group of the Kan clan regarded Kan Lung Kai （龍溪）as their focal or first generation ancestor （一世祖）.  Kan Yee Sze （以斯）was the son of Lung Kai and was the 2^nd generation ancestor （二世祖）.  Kan Fei Yin （斐然）was the son of Yee Sze and was the 3^rd generation ancestor （三世祖）。

The settlement in Lo Wai

7. According to a genealogy prepared by Kan Hang Tai （恆泰）of this clan in 1921 (‘the Lung Kai genealogy’), the clan originally lived in Fujien （福建漳州府平和縣）.  The second and third generation ancestors i.e. Yee Sze and his son Fei Yin then moved to Wai Chau in Guangdong (廣東惠州府博羅縣金沙洞).  This, however, was a temporary move because they subsequently came to Shek Pik in Lantau Island（大嶼山石壁）which is now part of Hong Kong.  Fei Yin, however, was still not satisfied with the location and eventually left and settled in Shui Jiu Lo Wai, Shap Pat Heung, Yuen Long（元朗十八鄉水蕉老圍）.  The Lung Kai genealogy stated that the clan had settled there for about 300 odd years.  This would bring the time of settlement to about the beginning of the 1600’s.  The Lung Kai genealogy had at one time been lost but was discovered again in 2004.

8. The settlement in Lo Wai was also recorded in a genealogy produced by the plaintiffs.  This genealogy is in respect of the branch of Kung Cheung （恭章）, the sixth son of Tak Chung (‘the Tat Chau （達就）genealogy’).

The 4^th Generation

9. Tak Chung was the first son of Fei Yin.  He was born in 1680 and died in 1728.  He had two brothers, namely, Tak Leung (德良) and Tak Kam （德金）.  Not much was known of Tak Leung.  But Tak Kam and his family moved away from Lo Wai to a new locality and set up a new settlement by the name of Hung Cho Tin Village （紅棗田村）.

The 5^th generation

10. Tak Chung had six sons.  They were

1.  Shing Cheung 成章  (1708 - 1768)

2.  Man Cheung 萬章    (1710 - 1779）

3.  Dien Cheung 殿章   (1713 - 1776)

4.  Hon Cheung 翰章    (1719 - 1772)

5.  Yau Cheung 有章  (Born sometime between 1723 - 1728; died sometime between 1783 - 1795 aged 60)

6.  Kung Cheung 恭章  (Born sometime between 1724 - 1728; year of death unknown)

The 6^th generation

11. It is sufficient for the purpose of this appeal to mention that Shing Cheung had one son.  Man Cheung had four sons.  Dien Cheung had six sons.  Hon Cheung had four sons.  Yau Cheung had six sons and Kung Cheung had six sons.

12. The plaintiffs are the descendants of Kung Cheung.  The defendants are descendants of Shing Cheung, Dien Cheung and Yau Cheung.

Kan Tak Chung Tso

13. Kan Tak Chung Tso was set up for the worship of Tak Chung.  The exact date of its establishment was not known but as a Tso could only be set up after the death of the person named in the Tso, it was most probably set up after the death of Tak Chung, either during the lifetime of his six sons or thereafter.  The Judge found that the Kan Tak Chung Tso was likely to be already in existence when the two sons of Tak Chung branched out as discussed in the following paragraphs.  It is clear that by the time of the establishment by the then British administration in Hong Kong of the Block Crown Lease of the New Territories in 1898, Kan Tak Chung Tso was listed as one of the Crown lessees.

Removal from Lo Wai

14. As mentioned earlier, the families of two of the sons of Tak Chung had moved away from Lo Wai and settled elsewhere.  This was a very important development in the affairs of the Kan clan.

15. The first removal was during the reign of 雍正 (1723 - 1735) by the 4^th son Hon Cheung to Ha Che （下輋） in Pat Heung.  The move was recorded in both the Lung Kai genealogy and Tat Chau genealogy

‘ Lung Kai genealogical :­-

“五世翰章迺德忠之四子... 諱妣于清雍正年間分支遷居寶安八鄉下輋，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)

Tat Chau genealogical :-

“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)’

16. The second removal was by the family of the 6^th son Kung Cheung during the reign of 乾隆 (1736 - 1795).  They moved to Ma On Kong （馬鞍岡）in Pat Heung.  The two genealogies also recorded the move.

‘ Lung Kai genealogical :-

「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)

Tat Chau genealogical :-

「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)’

The plaintiffs’ case

17. The plaintiffs’ case was a simple one.  They relied on the well established principle that a Tso is set up for the purpose of veneration of the common ancestor.  It is an ancient Chinese institution of ancestral land holding whereby income derived from a common ancestor is enjoyed by his male descendants for the time being living for their lifetimes and so from generation to generation indefinitely : Tang Kai-Chung and another v. Tang Chik Shang and others [1970] HKLR 276.  The plaintiffs claimed that since they are descendants of Tak Chung (their forefather Kung Cheung being the 6^th son of Tak Chung) therefore they are entitled to the benefits of the Kan Tak Chung Tso set up for the veneration of Tak Chung.

The defendants’ case

18. The defendants’ case is that there had been “fen (fan)-jia (ka)” （分家） or “fen (fan)-fong” (分房) or “fen (fan)-gei (chi)” （分支） among the six sons of Tak Chung when Hon Cheung and Kung Cheung moved away from the ancestral settlement and lived elsewhere. After their removal they did not participate in, or contribute towards the costs and expenses required for, the management of the affairs and assets of the Kan Tak Chung Tso and they had not claimed any interests in its assets.

19. The defendants further claimed that since then the membership of the Kan Tak Chung Tso belongs to the male descendants of the remaining three fongs namely Shing Cheung, Dien Cheung and Yau Cheung.  Man Cheung had no surviving male descendants and his fong was extinct.

20. The defendants relied on the custom and practice applicable to the Kan Tak Chung Tso that after a fong had branched out and moved away it is no longer entitled to share in the estate of the original ancestor.

Distinction between family property and tso property

21. The plaintiffs accepted that there can be a division of family property by way of fen jia 分家 or fen fong (分房).  However, they contended that there was a distinction between this type of division on the one hand and division of property held under a Tso which was set up for the veneration of an ancestor the income arising from which would be used for the benefit of all male descendants from that ancestor on the other hand.  They contended, as they have maintained in this appeal, that there was no evidence of a division of the Kan Tak Chung Tso, that the defendants had never contended when dispute arose between the parties that there had been a division of the Kan Tak Chung Tso and that the Judge was wrong when he found that Kung Cheung and Hon Cheung had taken a share of the Kan Tak Chung Tso when they branched out.  Mr. Hung, counsel for the plaintiffs, however, properly accepted that whether there was a division of the Kan Tak Chung Tso property was an issue before the Judge.  See the view of the Courts on the requirement of framing of issue : Poon Hau Kei v. Hsin Chong Construction Ltd (2004) 7 HKCFAR 145 (paras 15─21) and Wing Lee Engineering & Technical Services Ltd v. Alliance Building Services Engineering Ltd (CACV 275/2006, Decision 27/4/2007) (paras 23─28).

Approach to finding of fact

22. When a Court makes a finding of fact or drawing an inference from facts, it does not depend solely on direct evidence.  Very often such evidence is lacking.  The Court looks to the overall circumstances of the case.  The conduct of the parties in relation to each other is a relevant consideration.  If the parties had conducted their affairs in a particular manner for a substantial period of time, the Court may ask whether this is because they know that their relationship is governed by a certain mode based on agreement or understanding?  Or is it because of other reasons such as misapprehension of some fundamental facts, inertia or lack of financial means to adopt a different approach?  The Court also looks to contemporaneous records such as written agreements or correspondence of the parties.  In the context of an indigenous clan in the New Territories, the Court also expects its history to be passed down from generation to generation by way of oral transmission or recorded in documents such as a genealogy.  From these various facets the Court makes the finding and draws the inference as to what probably had taken place.

Non participation by Kung Cheung and Hon Cheung fongs

23. In order to consider whether the Judge was correct when he decided that the plaintiffs who belonged to the Kung Cheung fong was no longer entitled to the Kan Tak Chung Tso, I would approach the matter in the way I have stated.  First it is necessary to regard the historical background concerning the conduct of the parties towards the Kan Tak Chung Tso.

24. First of all, members of the two fongs of Kung Cheung and Hon Cheung had never been managers of the Kan Tak Chung Tso since the commencement of the Block Crown Lease.  From the commencement of the Block Crown Lease to 1949, the manager was Kan Un Loi 簡元來of Yau Cheung fong.  Between 1949 to 1978, the manager was Kan Kwai 簡葵 of Yau Cheung fong.  From 1978 onwards the three managers were Kan Kwai 簡葵， Kan Yook Tim (簡煜添) of Shing Cheung Fong and Kan Kun Sang（簡根生）of Dien Cheung fong.

25. Second, Kung Cheung fong had not participated in the annual ancestral worship of Tak Chung Tso from 1959 to 1979.

26. The members of Kung Cheung fong only asserted their interest in Tak Chung Tso after the death of Hang Tai who prepared the Lung Kai genealogy.  This is what the Judge found :

‘ 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.’ 

27. Even if one only counts the relevant period from the time of the establishment of the Block Crown Lease, the Kung Cheung fong had for a substantial period of time not asserted any interest in Kan Tak Chung Tso both in terms of management and beneficial interest.  This is a significant factor and it cannot be explained simply by, for example, war, economical necessity or lack of communication.  After all managers of a Tso are often appointed from different fongs of a family and annual ancestral worship has long been a recognized custom amongst the indigenous inhabitants of the New Territories. 

28. The Judge did not find that the non-participation of the Kung Cheung fong in the affairs of the Tso could be explained by arguments like the larger fongs were oppressing the minor fongs.  Kung Cheung had six sons and Hon Cheung had four sons.  They were not minor fongs.

29. One then turns to the history of this clan to see if there can be any possible explanation for this inactivity.

Fen-jia and removal from settlement

30. The history shows that Kung Cheung fong and Hon Cheung fong had moved away from the ancestral settlement in Lo Wai.  This must be a significant event for two branches of the family to move away from where their ancestors had chosen to lay down their roots and the importance of which was recognized in the two genealogies.

31. The removal may well have been due to discord within the family or by reason of need.  One should not surmise the reason but what is clear is that it cannot be seriously challenged that there was ‘fen-jia’ or division of family assets at the time of the removal.  These two events were recorded in the Lung Kai genealogy.  The removal was a permanent one as was recognized even in the Tat Chau genealogy. 

32. If the permanent removal entailed a division of the family assets why was it not possible that it would also involve the division of property held for ancestral worship under the Kan Tak Chung Tso in the sense that the beneficiaries took their shares from it?  As can be seen from the decided cases a Tso can be divided by the unanimous consent of all its members or by its managers : Kan Fat-tat also known as Kan Fat v. Kan Yin Tat also known as Kan Tat [1987] HKLR 516 and Re Lau Wai Chau [2000] 1 HKLRD 924.  Indeed the plaintiffs’ expert on Chinese law and custom, Dr. Baker in his written opinion recognized that it was highly improbable that those moving away from the clan village would be prepared to do so empty-handed.  Up to the 5^th and 6^th generations, the membership of Kan Tak Chung Tso was not large at all and it would not be difficult to reach a consensus on the division.  One may ask rhetorically that if branching out permanently involved division of the family property and if the division of ancestral property was not such an exceptional event the occurrence of which could be ruled out, why was it necessary to specifically record the division of the ancestor worship property in a genealogy beyond stating that there had been‘分支遷居’ (fen chi, moving out) or‘分房遷居’(fen fong, moving out)?

Statements in the Lung Kai genealogy

33. Indeed the Lung Kai genealogy did mention that the two fongs were no longer entitled to 嘗業 (ancestral worship property).  This term had long been recognized as referring to Tso property or ancestral worship property.

34. This was recorded in two passages in the Lung Kai genealogy.  The first appearance was after reference to the 1st, 2nd and 3rd ancestors.  It stated that 

「上述三祖前遺嘗業經既洗消、餘下積有嘗業與紅棗田、下輋、馬鞍崗三處無涉。」

35. The translation is that the ancestral worship property of the three ancestors had been liquidated, the remaining ancestral worship property was not of the concern of the three localities in Hung Cho Tin, Ha Che and Ma On Kong.

36. More importantly it also appeared at the part dealing with Tak Chung.  After referring to the personal details of Tak Chung including his six sons, his birth and death, his wife, her birth and death and their burial place, it stated that

「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。」

37. It stated that first, each of the Tak Chung and Tak Kam ancestral worship property had been divided and hence each of them cannot interfere with the other; second the two ‘fen fongs’ 分房 that had moved to Ha Che and Ma On Kong had their names removed and they also cannot interfere with the ancestral worship property.

Importance of a clan genealogy

38. The importance of a clan genealogy as a record of a clan’s history was recognized by the two experts in this case and also by the following passage from 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.  …’

Reliance on the genealogy

39. The Judge relied on the Lung Kai genealogy when he found there was a division of the ancestral worship property.  Though Professor Baker said that there was insufficient evidence to show a division of Kan Tak Chung Tso, I agree with the Judge 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 worship property of Kan Tak Chung Tso.  The reason was most probably because they had already taken their shares upon their respective removals and therefore was no longer entitled to the same.  Professor Baker said that there was no division of Kan Tak Chung Tso.  This statement was correct in the sense that the Tso continued to exist as an entity and there was no complete division of all its assets.  But it does not mean that the two fongs who had branched out could not have taken their shares from that Tso.  The continued existence of the Tso is not inconsistent with the fact that from the time of the separation the Kan Tak Chung Tso only exists for the benefit of the three other fongs. 

40. The Lung Kai genealogy is a comprehensive record of all the branches of the Kan clan starting from the first ancestor Lung Kai.  It included those that had branched out up to the 11^th or 12^th generation.  The Lung Kai genealogy must be the best evidence available concerning the history of this clan. 

41. In the absence of other material evidence the statement in the genealogy must be a clear indication that the two branched out fongs were no longer entitled to the Tso.  The phrase ‘removal of name’ （名既除）in the context must be referring to the removal of the names of the two fongs from the ancestral worship property held by Kan Tak Chung Tso.  This carries an implication that there had been division of the ancestral worship property.  The reliance by the Judge on the Lung Kai genealogy was correct.

42. It is true that there was no similar statement in the Tat Chau genealogy but since it was a record of only a sub branch of Kung Cheung, one would not expect it to be as comprehensive as the other record.

Custom since 1921

43. At the very least, the Lung Kai genealogy recorded a custom of this clan that if the names of the two branched out families had been removed, they would no longer be entitled to the ancestral worship property.  This custom was in place since 1921 when the genealogy was completed by Hang Tai.  I just cannot see how the validity of this custom can seriously be challenged now.

The Omnibus Genealogy

44. The Judge found that the Lung Kai genealogy was also used by the organization which prepared the 粵東簡氏大同譜 (Omnibus Genealogy for the Kan clan in Eastern Guangdong) (‘the Omnibus Genealogy’).  It was published in 1928.  The evidence showed that Hang Tai had also relied on materials from those involved with the preparation of the Omnibus genealogy.  At the beginning of the Omnibus genealogy a series of 14 questions and answers were listed.  The 10^th question and answer were in respect of the sharing of ancestral worship 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)”」

45. It is true that the Omnibus genealogy covers the various Kan clans in East Guangdong and is not a record of the Kan Lung Kai clan, however, the significance of the 10^th question and answer is that if the statement in the Lung Kai genealogy (i.e. the removal of names of the two branched out fongs disentitled them from the ancestral worship property) was to be regarded as a custom of that particular clan, then it was not merely a custom peculiar to it but was also recognized as such by the other Kan clans in East Guangdong.  In other words it was not an obscure custom the validity of which may not easily be established.

Case turns on evidence

46. This is not a case which requires detailed analysis of the well established legal principles concerning a Tso.  Ultimately the decision depends on whether there was sufficient evidence to support the defendants’ contention that the plaintiffs’ interest in Kan Tak Chung Tso had ceased since the fen jia of Kung Cheung Fong and its removal from the original village settlement.  In my view in the present case, having considered all the circumstances, there was indeed evidence for the Judge to come to his finding.

Conclusion

47. Accordingly the plaintiffs’ appeal is dismissed with a provisional costs order in favour of the defendants.

Costs

48. Mr. Keith Yeung, counsel for the defendants has indicated that he intends to ask for the defendants’ costs to be paid out of the fund of the Kan Kung Cheung Tso.  I will direct that the application will be considered on paper first.  The defendants are required to lodge the written application within 10 days of the handing down of the judgment and the plaintiffs will respond within 10 days thereafter.  The defendants will reply within 7 days thereafter.

Hon Yuen JA :

49. I agree with Cheung JA’s judgment and have nothing to add.

Hon Poon J :

50. I have had the benefit of reading the draft judgment of Cheung JA and respectfully agree with it.