TANG SIU FOR v. TAO CHI SHING AND OTHERS

HCA 2336/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2336 OF 2004

______________________

______________________

______________________

J U D G M E N T

______________________

1.  This is a claim by the plaintiff against the managers of a tong for payment of money.  The tong is called To Fuk Tak Kung (“陶福德公”或“宮”) or Fuk Tak Kung (“福德公”或“宮”) (“the Tong”).  It is a tong whose managers are registered under section 15 of the New Territories Ordinance.  The parties agree that the Tong is also called Tai Chung or the Community (大眾).

2.  The parties herein and all other members of the Tong are villagers of Nai Wai (泥圍), a village situated in Tuen Mun and bounded by four stonewalls.  Their dispute is on the criteria of membership of the Tong. 

3.  The Plaintiff claims that he is a member of the Tong and the Defendants have wrongly withheld certain distributions of money of the Tong from him.  The Defendants and the majority of the members deny the Plaintiff’s claim of membership.

FUK TAK KUNG (福德公) OR TOE TEI KUNG (土地公)

4.  Fuk Tak Kung is the name of a Taoist god.  Another common name for it is Toe Tei Kung, the earth god (meaning the earth god in charge of farms and vegetation: 土地神 earth god-see The New Lin Yutang Chinese-English Dictionary and meaning the local god of the land; village god-A Chinese-English Dictionary (Revised Edition) by Foreign Language Teaching and Research Press published in 1995).  DW2, To Ying Tat, has also pointed out in paragraph 22 of his witness statement that the villagers of Nai Wai regarded Toe Tei Kung as one of their gods who protects their houses and the whole village.  The villagers of Nai Wai also place his statue or his spirit tablet at home or right outside their houses for worshipping purpose.

5.  Toe Tei Kung is worshipped everywhere in China.  Most Chinese people who revere Taoism and Buddhism have a little shrine or spirit tablet at home to worship him.  There are also little temples or shrines erected on the roadside everywhere in the country for his worship.  One of the first structures to be built in a construction site is a shrine for him.

6.  He occupies a relatively low position in the hierarchy of gods.  His jurisdiction is of a local nature.  It covers a specific area or village.  He is the guardian god of his own area or village.  There are therefore different Toe Tei Kungs for different villages or areas.  In a big city like Hong Kong, there should be many Toe Tei Kungs though there is never any demarcation of jurisdiction for each of them.  In a small village like Nai Wai, the common belief is that there is only one Toe Tei Kung for it.

7.  The last word in the Chinese names of Fuk Tak Kung (福德公) and Toe Tei Kung (土地公) means a venerable old man.  The last word in the Chinese name of Fuk Tak Kung (福德宮) means a temple or a shrine or a palace.  These two words “公” and “宮” are used interchangeably for the name of this god.  They sound the same in Putunghua, the punti dialect and Cantonese.

8.  In this case, Fuk Tak Kung is also used as the name of a tong governed by section 15 of the New Territories Ordinance.  For the name To Fuk Tak Kung, the surname To (陶) has been added to the beginning possibly to signify a relationship between this Fuk Tak Kung and the clan surnamed To.  It is common ground that there are other tongs in the villages of the New Territories that are also governed by section 15 and are also called Fuk Tak Kung.

Nature of the Dispute

9.  The Plaintiff says that whenever a newborn male indigenous villager of Nai Wai is at least one month old and has, through the arrangement of his father, gone through the Lantern Lighting Ceremony (點燈), he will become a member of the Tong.  This ceremony takes place between the 10^th and the 16^th days of the 1^st lunar month every year.  But membership of the Tong does not entitle him to any benefit.  He will have to wait until his marriage whereupon he will be accorded with the status of a household (門口) of the Tong.  He will then be entitled to share the benefits of the Tong as may be distributed from time to time.  The benefits are distributed on household basis. 

10.  The plaintiff further says that the indigenous villagers of Nai Wai are surnamed To, Tang and Yuen and their males are members of the Tong.  They would, by getting married, be given the household status of the Tong.  (There is no indigenous villager in Nai Wai other than those who are surnamed To, Tang and Yuen.)

11.  The Defendants only argue one matter.  They say that only those indigenous villagers of Nai Wai who are surnamed To are members and entitled to acquire the household status of the Tong.  The villagers of the surnames Tang and Yuen cannot be members or acquire the household status of the Tong, they can only acquire the household status of Nai Wai village.  They therefore have no right to share the benefits of the Tong.

12.  On the Plaintiff’s count, there are 131 households of the Tong.  The newest household is that of the grandson of DW2 To Ying Tat.  He got married on Monday, 4^th December 2006 and thereby acquired the household status.  Included in the 131 households are four households surnamed Yuen and two households surnamed Tang. 

13.  The Defendants of course only recognize 125 households for the Tong as they exclude the six non-To households.  They only include these six households for counting the households of Nai Wai village, not of the Tong.

14.  Though there are just one Plaintiff and three Defendants, this action in fact involve almost all 131 households (including the six alleged households not of the surname To).  The majority of the Tos are on the side of the Defendants.  The Tangs, Yuens and a significant minority of the Tos are on the Plaintiff’s side.

Brief History of Nai Wai

15.  The brief history of the Tos in Nai Wai is inscribed on a stone tablet that has been inset into the wall next to the entrance to the village.  This shows that the Tos have settled in the Tuen Mun area in or before the 14^th century.  One of their well-known ancestors, Mr To Ka Yi (陶嘉儀) in fact passed away in the 5^th year of the reign of Emperor Jing (景帝) of the Ming Dynasty (1454 A.D.) 

16.  It seems that all the Tos who have settled in Tuen Mun are his descendants and members of To Ka Yi Tso (陶嘉儀祖).  This is an ancestral worshipping tso of the Tos.

17.  When the Tos settled in Tuen Mun, they together with another clan surnamed Law established the Tuen Mun Grand Village (屯門大村).  This village lasted until sometime in the reign of Emperor Qianglong (乾隆) of the Qing Dynasty when the Laws moved away to Shataukok and the outlying islands to establish their new villages.

18.  The Tos also moved out of this village at about the same time and established five new villages in the Tuen Mun Area.  That marked the end of the Tuen Mun Grand Village.  The five villages set up by the Tos were Nai Wai (泥圍), Tsing Chuen Wai (青磚圍), Tuen Tsz Wai (屯子圍), Lam Tei Tsuen (藍地村) and Sun Tsuen (新村).  Since the reign of Emperor Qianglong spanned 60 years from 1735 AD to 1795 AD, Nai Wai should have a history of between 210 and 270 years.

Land Holding in and around Nai Wai

19.  There were more than 100 house lots within the four walls of Nai Wai in DD 130.  The schedule to the Block Government Lease shows that four of them belonged to the Tangs, three of them belonged to the Yuens, one belonged to the Tong and the rest belonged to the Tos.  Of the four houses that belonged to the Tangs, two belonged to the Plaintiff’s great granduncle Tang Siu Tim and two belonged to his grandfather Tang Tsoi Hing.

20.  The Tong had 15 and four agricultural lots registered under its respective names of To Fuk Tak Kung and Fuk Tak Kung and the lots were all outside the walls of Nai Wai. 

21.  It purchased four more agricultural lots on 20 March 1936 and three more agricultural lots on 27 October 1948 in the name of Fuk Tak Kung.  It then had 11 agricultural lots in the name of Fuk Tak Kung.  On 6 July 1933, it sold six agricultural lots that were under the name of To Fuk Tak Kung.  It then had 9 lots remaining under this name.  On 10 January 1957, eight agricultural lots under the name of Fuk Tak Kung were listed under the name of To Fuk Tak Kung in a memorial of appointment of manager.  It seemed that from then on, the Tong had only three lots under the name of Fuk Tak Kung and 17 lots under the name of To Fuk Tak Kung.

22.  The Plaintiff also produced a memorial of succession to property dated 23 February 1915 and registered in the Tuen Mun Land Registry by memorial No. 29320.  It shows that the Plaintiff’s father and uncle had on that day succeeded to the two house lots and 13 agricultural lots all in Nai Wai from his grandfather Tang Tsoi Hing.

23.  These documents show that the Tangs and Yuens had been in Nai Wai at the latest at the turn of the 20^th century.  There is no other document that can show their earlier presence. 

24.  As a matter of tradition, the Fuk Tak Kung or Toe Tei Kung should have been revered in Nai Wai since the village was built.  The documents however only show that the Tangs have been in Nai Wai for four generations (counting down to the Plaintiff).  The Tos do not think that the Tangs had been in Nai Wai earlier than that.  The Tong in the name of To Fuk Tak Kung and Fuk Tak Kung already had many lots registered under it at the turn of the 20^th century and its then manager was To Hing Tsun.  The majority of the Tos therefore do not think that the Tangs have ever been or been eligible to become members of the Tong.  They regarded the Yuens as in a similar situation. 

25.  There are families of other surnames who have moved into Nai Wai in the last 10 years.  The evidence suggests that they are all tenants.  There is no dispute between the parties in this action that these people are not members or households of the Tong.

Membership of To Fuk Tak Kung and Fuk Tak KUng as Reported to the District Office

26.  Staring from about 1973, the District Office required the managers of tsos and tongs which are governed by section 15 of the New Territories Ordinance to state in writing the identity of the members of theirs tsos and tongs whenever they apply for appointment of new managers to replace retired or deceased managers.

27.  I list hereunder a table of applications submitted to the District Office by the managers of To Fuk Tak Kung and Fuk Tak Kung and the contents of the annexed membership lists:

Date of Document	Name of Tong	Nature of Document	Number of Members and their Surname and Other Descriptions of Membership	Managers Who Signed the List of Members
5/11/1973	To Fuk Tak Kung	Application to appoint To Yuk Fook and To Yau Shun as managers to replace To Hop Nang, deceased.	34 members all surnamed To.	To Kut Cheung, To Yuk Fook and To Yau Shun
13/3/1974	Fuk Tak Kung	Application to appoint To For Cheung as manager to replace To Kut Cheung, deceased.	14 members all surnamed To.	To Yuk Fook, To Yau Shun and To For Cheung
26/3/1974	To Fuk Tak Kung	Appointment to appoint To Yuk Fook, To For Cheung and To Yau Shun as managers.	14 members all surnamed To.	To Yuk Fook, To Yau Shun and To For Cheung
25/7/1988	To Fuk Tak Kung	Application to appoint To Tim Hing as manager to replace To For Cheung, deceased.	37 members all surnamed To.  It is further stated that all villagers of Nai Wai have shares in the properties of Fuk Tak Kung.	To Yuk Fook, To Yau Shun and To Tim Hing
19/8/1991	To Fuk Tak Kung/Fuk Tak Kung	Application to appoint To Chi Shing as manager to replace retiring manager To Yuk Fook.	All villagers of Nai Wai at about 200 odd males.	To Yuk Fook, To Yau Shun, To Tim Hing and To Chi Shing
15/2/1995	To Fuk Tak Kung	Application to appoint To Shui Tai as manager to replace retiring manager To Yau Shun.	20 members all surnamed To and all descendants of the Tos in Nai Wai.	To Yau Shun, To Tim Hing, To Chi Shing and To Shui Tai
15/2/1995	Fuk Tak Kung	Application to appoint To Shui Tai as manager to replace retiring manager To Yau Shun.	The properties of Fuk Tak Kung are shared by all villagers of Nai Wai including the surnames of To, Tang and Yuen.	To Yau Shun, To Tim Hing, To Chi Shing and To Shui Tai

28.  Apart from the above membership lists, no other list has been produced in evidence.  For the references to the villagers or male villagers of Nai Wai, I understand them to mean the male descendants of the indigenous villagers of Nai Wai as the parties agree that the recently moved in tenants are non-indigenous villagers and are never included in any affair of the Tong.  Furthermore, there is no dispute that membership of the Tong does not extend to females.  This must have been the understanding of managers who signed these membership lists.  For the same reason, I regard the reference to the descendants of the Tos to mean the male descendants only.  The parties also agree that when the membership lists contain individual names, these lists are incomplete as they do not contain all the names of the Tos who were alive at the relevant times.

29.  The above table shows that To Fuk Tak Kung and Fuk Tak Kung share the same managers from time to time.

30.  It appears from the table that when To Yuk Fuk was a manager, all the managers regarded To Fuk Tak Kung and Fuk Tak Kung as having the same members which included the Tangs and the Yuens.  That was the case for the membership lists dated 25 July 1988 and 19 August 1991.  However, after his retirement, the remaining managers To Yau Shun, To Tim Hing and To Chi Shing and the new manager To Shui Tai regarded To Fuk Tak Kung and Fuk Tak Kung as different tongs and having different members.  They regarded To Fuk Tak Kung as a tong only for the Tos whilst Fuk Tak Kung as a different tong for all the males of all three surnames.  That can be seen from the membership lists of To Fuk Tak Kung and Fuk Tak King both dated 15 December 1995.

31.  Despite the different views of different managers as demonstrated in the membership lists, the parties now agree that To Fuk Tak Kung and Fuk Tak Kung are merely different names of the Tong.  It is thus a case of all or nothing for the Tangs and Yuens.

The Pleadings

The Statement of the Claim

32.  The Plaintiff pleaded in his Statement of Claim that he is an indigenous villager of Nai Wai and he and his ancestors have lived in Nai Wai for over 100 years.  He pleaded that the Tong was set up in Nai Wai to worship Toe Tei Kung and to mediate in the disputes of the villagers and landed matters.  He further pleaded that the Tong belonged to the villagers of Nai Wai surnamed To, Tang and Yuen.  It started off as an institution for worship of Toe Tei Kung.  Later on, it developed into a multi-purpose body which acquired properties for the community of Nai Wai, maintained public constructions and facilities and ran a school.  To sum up, its activities were for the common good of all the villagers in Nai Wai. 

33.  Since most villagers in Nai Wai were surnamed To, it was also called To Fuk Tak Kung.  However, throughout the years, whenever grains had to be collected for engaging evening patrol guards (更練穀) or money had to be raised for establishing a school, the obligation was shared by all the households surnamed To, Tang and Yuen in Nai Wai.  Similarly, whenever the Tong distributed pork, money in lieu of pork or compensation money from the Government for resumption of land, each of the households surnamed Tang, To or Yuen was given a share.

34.  The Plaintiff is one of the two Tang households.  He has all along enjoyed the benefits of and discharged his duties to the Tong.  He has also received moneys distributed by the Tong.  However, from the end of 2003, the three managers of Tong who are the three defendants suddenly stopped paying him his share of money from the Tong.  They claimed that he was not a member of the Tong and had no right to share its benefits.  He therefore sued the three managers for payment of his share of the Tong’s money.  He also has a claim for a declaration that he is a member of the Tong and is entitled to all the benefits from the Tong.  This claim for a declaration was however abandoned in the course of final submissions when I queried the propriety of such a claim, as the Plaintiff is not suing the Tong.

The Defence

35.  The Defendants pleaded that the Tong was set up several hundred years ago.  It is an ancestral worshiping Tong and belongs to the Tos only.  That is why the Tong is called To Fuk Tak Kung. 

36.  On the collection of grains for engaging evening patrol guards, they pleaded that only those who were engaged in agricultural activities had to contribute the grains.  Those who were not so engaged did not have to contribute.  Hence, the obligation was not shared by all the households in Nai Wai.  Furthermore, even if the Plaintiff or his ancestors had shared this patrol grain obligation, it did not mean that the Plaintiff is or his ancestors were members of the Tong. 

37.  Regarding the collection of money to establish a school, it was a matter for the Tos, they had not asked the Tangs and Yuens to contribute.  They also denied that the Tong had distributed pork or money in lieu of pork to the Tangs and Yuens. 

38.  They further pleaded that in the past, the villagers of Nai Wai would at end of the lunar year contribute some money for the purpose of organizing a ceremony of thanksgiving to the gods (酬神).  After the thanksgiving ceremony, those villagers who had contributed money for the occasion would take his share of pork for food.  Therefore, even if the Plaintiff or his ancestor had contributed money for the thanksgiving ceremony and had been given a share of pork, that still did not mean that he is or his ancestors were members of the Tong.

39.  Regarding the distribution of compensation money for land resumption, the Defendants pleaded that the payments to the Plaintiff were made by mistake.  They admitted that since the end of 2003, they had stopped paying any more of the Tong’s money to the Plaintiff.  They further pleaded that the decision to deny the Plaintiff as a member of the Tong was made by the majority of the members and they only implemented this decision of the Tong in their position as managers.  They deny that they had in their personal capacities declared that the Plaintiff was not a member of the Tong.  In refusing to pay the Plaintiff the Tong’s money, they pleaded that they only represented the members of the Tong.

The Reply

40.  The Plaintiff maintained that the Tong belonged to each and every of the indigenous villagers of Nai Wai.  He further pleaded that the Tos had their ancestral worshipping tongs and it was confusing for the Defendants to say that the Tong is their ancestral worshipping tong.

41.  On the addition of the surname To to the Tong’s name as Fuk Tak Kung, he pleaded that it was because the majority of members were of the surname To and it was for the purpose of distinguishing the Tong from other tongs in the New Territories which are also called Fuk Tak Kung.

42.  On the patrol grains, he agreed that only those engaged in agricultural activities had to contribute such grains for engaging the evening patrol, but all grains were given to the Tong.

43.  Regarding the school in Nai Wai, he pleaded that it was set up by the joint efforts of all villagers of Nai Wai over 70 years ago and it was for all children of Nai Wai to study.

44.  Regarding the distribution of pork or money in lieu of pork at the end of lunar year, he pleaded that in the old days when the finance of the Tong was tight; all villagers of Nai Wai had to contribute some money for the thanksgiving ceremony.  After the ceremony, each of the villagers would take home a share of pork for food.  However, in the last 10 odd years, the Tong had ample cash.  It was not necessary for the villagers to contribute any money for the thanksgiving ceremony.  At the end of the lunar year, each household regardless of the surname would also be given $100 as money in lieu of pork.

The Revised Case of the Defendants

45.  It was the Defendant’s pleaded case that the Tong was an ancestral worshipping tong of the Tos.  This was repeated in counsel’s written opening.  However, after explanation from the court that the Tos could not have Toe Tei Kung as one of their ancestors and thus the Tong could not have been their ancestral worshiping tong, they then through counsel presented a revised case that the Tong is a family tong and not a religious tong.  It is also not an ancestral worshipping tong.  However, it has financed and subsidized the religious activities of the villagers in Nai Wai.  (The Tos in fact have many other ancestral worshipping tsos and tongs each of which is dedicated to venerate a particular focal ancestor of theirs.)

The Evidence

46.  The Plaintiff has called five witnesses including himself.  Three of them are surnamed To and the last one surnamed Yuen.  The Defendants have also called five witnesses and they are all surnamed To.  They included the 1^st and 2^nd Defendants.  All witnesses have adopted their witness statements as part of their evidence in chief.

47.  Both sides have however decided not to call any expert evidence on Chinese Customary Law.

The Plaintiff’s Evidence

PW2 To Sau Lam

48.  It may be more convenient to start with the evidence of PW2 To Sau Lam as he is the most senior of the witnesses.  He was born on 10 July 1922 and is now 84 years old.  He also occupies a very senior position amongst the Tos.  He had been the village representative of Nai Wai during the Japanese Occupation and his tenure lasted for 6 to 7 years.  His son is the incumbent village representative.  He knew the Plaintiff’s great granduncle and said that the Plaintiff’s family have been in Nai Wai for over 100 years and are indigenous villagers of Nai Wai. 

49.  To Sau Lam has made a statutory declaration on 18 June 2004 which was used by the Plaintiff’s solicitors in a demand letter dated 10 August 2004.  That was before the commencement of this action.  He said in the declaration that he had been told by his father that the Tangs and Yuens had already been in Nai Wai in the days of his grandfather, but he could not tell when they had initially settled in Nai Wai.  He also said that there were many Fuk Tak Kungs in the New Territories villages.  They were for worshipping Toe Tei Kung (the earth god) and to mediate in the disputes and landed matters of the villagers.  Nai Wai also has a Fuk Tak Kung (the Tong) which was established long ago.  It belongs to all the villagers of Nai Wai regardless of their surnames.  The purpose of establishing the Tong was to worship Toe Tei Kung (the earth god), to purchase properties for the community of Nai Wai and to maintain public constructions and facilities.  Since the majority of the villagers in Nai Wai were of the surname To, this surname was added to Fuk Tak Kung, a name of the Tong, to distinguish it from the Fuk Tak Kungs in other villages. 

50.  Back in about 1955  (he later corrected it to 1933), all villagers in Nai Wai regardless of their surnames had to contribute patrol grains (更練穀) to the Tong.  The rate was 1 to 2 bushels (1至2斗) of grains for each plot of land that could be used to farm a picul (一石) (equal to 133 pounds or 60 kilogrammes) of seeds.  That was the income of the Tong.  It was for engaging evening patrol guards and other communal expenditure.  Apart from providing the grains, those surnamed To, Tang and Yuen also had to act as evening patrol guards.  The income from such service was also given to the Tong.  There were also occasional collections of money from the whole of Nai Wai to provide facilities for the communal use of the Nai Wai.  Such income and expenditure were all entered in the account of the Tong.

51.  In 1932 when he was 10 years old, each of the households in Nai Wai including the Tangs and Yuens had to contribute $2 for the building of the Community House (眾人屋).  Of the funds collected, $25 were used to purchase in the name of the Tong house lot no.115 within Nai Wai.  All households in Nai Wai then provided the labour for transporting the building materials and for building the Community House on that lot.  The Community House as built was then used as a school for the children in Nai Wai until about 1953.  It was named the Hall of Five Willows (五柳堂) to venerate the famous pastoral poet To Yuen Ming(陶淵明).

52.  In 1953, Nai Wai together with neighbouring two villages Sun Fung Wai (順風圍) and Chung Uk Tsuen (鍾屋村) applied to the Government for funding to build the Hing Tak Public School (興德學校) for the children of these villages.  After Hing Tak Public School was built, the school at the Community House was closed.  The Community House was then used for gathering by all the villagers of Nai Wai.  It had also been let to others for running a kindergarten about 10 years ago.  It was later rebuilt and let to others for rental income to the Tong.

53.  In about 1948, the then manager of the Tong, To Hop Nang used the surplus of the patrol grains to purchase four agricultural lots for the Tong.  These were regarded as properties of Nai Wai. 

54.  To Sau Lam’s witness statement followed the Statement of Claim and his statutory declaration closely.  He made some elaborations in his oral evidence.

55.  He repeated in oral evidence that the primary purpose of the Tong was to worship Toe Tei Kung and it was owned by the villagers in Nai Wai of all three surnames.  He also confirmed that the Tangs had been in Nai Wai since the time of his grandfather which was about 150 years ago.

56.  He referred to the tradition of lantern lighting ceremony for the newborn male babies.  This ceremony has been be carried out for all male babies of Nai Wai who are surnamed To, Tang and Yuen who is at least one month old.  The lanterns would be hung from the 10^th to 16^th days of the 1^st lunar month.  They would be hung at the Hall of Gods (神廳) inside Nai Wai, at the temple or shrine of Fuk Tak Kung, which is next to the entrance to Nai Wai and at four stone sacrificial altars (石壇) which situate outside Nai Wai.  (The number of stone altars has been reduced to two nowadays because of public constructions.)  For the lantern at the Hall of Gods, each baby would be allocated one lamp with a lampshade inside.  A male baby who has gone through this ceremony and upon getting married would become a household of the Tong and would be entitled to share the Tong’s benefit.

57.  At the end of this ceremony, those households whose new babies have taken part in the ceremony would contribute a few catties of cooked pork and each household in Nai Wai regardless of their surname would be given a few taels of the pork.  Later on, the duty to provide the cooked pork was assumed by the Tong.  The few taels of pork are regarded as auspicious and would be placed on the family ancestral worshipping altar to bless the household with more male babies in the following year.  The pork would not be given to those of other surnames who have moved into Nai Wai as tenants in recent years.  He also confirmed that he has received such pork from the Plaintiff and his cousin upon their male babies lighting the lantern.  The families with newborn male babies would have to pay a small amount of money towards defraying part of the expenses for the ceremony and the rest would be subsidized by the Tong.  Male babies not of the surnames To, Tang or Yuen cannot take part in this ceremony in Nai Wai.  He also confirmed that he had at different times seen the Plaintiff himself, the Plaintiff’s son and nephew taking part in this ceremony.

58.  For the male babies of the Tos in Nai Wai and in the other four To villages in Tuen Mun (Tsing Chuen Wai, Tuen Tsz Wai, Lam Tei Tsuen and Sun Tsuen), they also have to light the lanterns at the To’s ancestral temple situated next to Tuen Tsz Wai, Tsing Wan Kun (青雲觀-a temple of the Tos), Tin Hau Temple (天后廟)and the Big Temple (大廟).  The Tangs and Yuens cannot light lanterns at those four places as they are not the descendants of the Tos and cannot enjoy the benefits of the ancestral worshipping tsos and tongs of the Tos.

59.  Regarding the collection of grains for engaging evening patrol guards, prior to 1933 the grains were not given to the Tong.  They were given to an organisation called the Hall of Loyalty and Justice (忠義堂).  It was set up by 10 villages in Tuen Mun including Nai Wai.  The people in these villages were of many different surnames.  Nai Wai owned 20% of the Hall. 

60.  Prior to 1933, the Hall was responsible to collect grains and to engage evening patrol guards for these 10 villages.  The surplus grains were kept by the Hall.  They were for use in a large-scale Taoist/Buddhist sacrificial ritual (打醮).  This event was held once every 10 years.  It was to appease the gods, excise the demons, rescue the ghosts of the dead from pain and misery and help them reach the shore of salvation.  After the ritual, there would be performance of opera in a large temporary theatre built of bamboo.  (Incidentally, this ritual had just been held by some villages in Tuen Mun at the end of last year and Nai Wai was also a party to it.)

61.  However, Nai Wai withdrew from the Hall in 1933 and then organised its own patrol guards through the Tong.  The patrol grains for this purpose were then collected by the Tong.  The rate of collection was at two bushels of grain per plot of land that could be used to farm one picul of seeds.  There were two collections per year as there were two harvests of rice grains per year.  Those who were not engaged in agricultural activities were not required to contribute.  Every year the Tong would receive more than 10 piculs of grain, but only a small portion of that was paid to the patrol guards.  The rest would be kept by the Tong.  Though the Tong would also use these grains to compensate those whose grains had been stolen, such event was very rare and he had not heard about it at all.

62.  In the 1930s, his father was in charge of the account of the Tong which was open for inspection by everybody on the 16^th day of the 1^st lunar month.

63.  Regarding the construction of the Community House, he recalled that there were at that time 37 households of which two were the Tangs and two were the Yuens.  Each household including the Tangs and Yuens had to pay $2 for this purpose.  After the land was bought, each household had also provided manpower to transport the building materials and to construct the building.

64.  He also referred to the construction of the Rural Committee Building.  Apart from a subsidy of $10,000 from the Government, all the money for constructing this building came from the proceeds of sale of a piece of Tong land.  The committee for the construction of this building included one of the Yuens whose photograph has been set in a memorial plate inset on a wall on the 1/F of the building.  This Rural Committee Building was constructed for all villagers in Nai Wai. 

65.  He also elaborated on the distribution of pork at the year-end.  In the old days, the Tong at the end of the lunar year would buy a pig and slaughter it for use at the thanksgiving ceremony.  After the ceremony, the carcass would be chopped up and the meat divided for all the households of the three surnames in Nai Wai.  Each household would contribute a very small amount of money of about $1 for the staging of the ceremony and the purchase of the pig.  The Tong would make up the shortfall.  However, in recent years (since about 1979 to 1980-per PW1) when the Tong has become more well-off, it simply gives each household $100 in lieu of the pork.  This again is confined to the Tos, Tangs and Yuens.  (PW1, the Plaintiff also said that in the days when there was still distribution of pork, the households would take turn to assume the duty of arranging the thanksgiving ceremony and the distribution of pork.  There would be three households assuming such duty in each year and they would have the benefit of dividing the entrails among themselves.  These households would also be responsible for arranging the prayer for blessing ritual (作福) at the beginning of the lunar year, the lighting of the lantern ritual in the 1^st lunar month and the distribution of the sugar of peace and health in the 2nd lunar month.)

66.  To Sau Lam also referred to the occupation of the four watch towers (圍斗或炮樓) at the four corners of Nai Wai.  He said from early 20^th century to 1980, three of the four watch towers were occupied and managed by the Tos and the last one was occupied and managed by the Yuens.  Since the Tangs were residing in the middle of Nai Wai, they did not manage those towers.  The towers were later demolished and each rebuilt into a three storey building with funds of the Tong.  The demolition and rebuilding of the towers were done one by one.  The new buildings are now let out for rental income to the Tong.

67.  He also referred to an incident relating to a fishpond lying outside the wall of Nai Wai.  The pond was used to demarcate the boundary of Nai Wai.  Part of this pond had been filled up by the dumping activities of a neighbouring village.  The original stone boundary of the pond was covered up and lost and the area of the pond reduced.  In order to regain the lost portion of the pond, the elders of the village held a meeting and decided to dig up the soil and debris to recover the lost boundary.  All households of Nai Wai were required to send a representative to take part in this event on the appointed day.  The Tangs and Yuens had also taken part in it.  After digging for over an hour, the original boundary was rediscovered and the lost of portion of the pond regained. 

68.  There was some arguments between the parties about the way this event was organised.  The Plaintiff’s witnesses said that a letter had been issued in the name of the Tong to all households requiring them to send representatives to take part in event with a warning that any defaulting household would lose the share of benefit in the Tong.  The defence witnesses denied that there was such letter.  I do not think this an important matter.  Any difference between the parties may very likely be due to fading of memory because the event happened about two decades ago.  It was likely that some effort had been made to notify all households of Nai Wai including those who had moved out of Nai Wai but were residing in nearby villages.  There were quite a number of such households and they were and are still treated as households of Nai Wai.  It was also likely that some form of threat of punishment against defaulting households had been uttered so as to ensure a large turnout of manpower on the appointed day.  In any case, there is no evidence that any defaulter had been actually punished. 

69.  Apart from recounting the activities of the Tong, most of which were religious, To Sau Lam also referred to different modes of distribution of benefits in different ancestral worshipping tongs.  To Ka Yi Tso is the most famous and largest ancestral worshipping tso of the Tos.  Its mode of distribution of benefit is per capita of the descendants of Mr To Ka Yi with the heads of family or fong getting an extra share.  For some other ancestral worshipping tsos of the Tos, the mode of distribution is per stirpes.  For the Tong, he said the reason for the distribution to be per household is because the assumption of duties, responsibilities and the contribution of money were on household basis.

70.  He also said that the amount to be distributed by the Tong was first calculated by the person in charge of the account.  This person would then discuss with the managers and elders on the amount to be distributed.  If the amount should be relatively small (say less than $10,000), there would be no formal meeting of members to decide the distribution.  The distribution would take place once the managers and elders are in agreement.

71.  The evidence of PW2 was clear and straight forward.  For a person of his age, he has demonstrated an exceptionally good memory of things that happened in the past.  He was able to recount the names of the heads of households in each of the houses in Nai Wai in the 1930s.  He also appeared to have no axe to grind in giving evidence for the Plaintiff.  He appeared to have a strong desire to ventilate what he believed to be the truth.  He has since his twenties been involved in the communal affairs of Nai Wai and is concerned about the well being of his fellow villagers.  He is an upright person.

PW1 – The Plaintiff

72.  His witness statement also followed his pleadings closely.  Most of what he said has been covered by the evidence of To Sau Lam which was more comprehensive.  Regarding the thanksgiving at the end of the lunar year, he said he had in one year acted as one of the duty three households in making the arrangements for the village.  He also referred to two activities which To Sau Lam had not mentioned but were undisputed between the parties.

73.  One activity was the distribution of the sugar of peace and health (平安糖).  On an auspicious day in the 2^nd lunar month, the Tong would engage a Taoist priest to pray for blessing for Nai Wai.  The priest would chant the names of all the households.  After the prayer, two pieces of blessed sugar would be given to each household.  The pieces of sugar were wrapped in red papers.

74.  This ritual has been simplified now and no priest is engaged, but the Tong still distributes the blessed sugars wrapped in red paper.  They would be placed at the shrine of Fuk Tak Kung for the Nai Wai villagers to collect (see witness statement of DW2 To Ying Tat as well).

75.  The other activity is the clay pot feast which took place on the 16^th day of the 1^st lunar month (正月十六食盤菜).  On this day, the heads of the households would bring their bowls and chopsticks and gather together at the Community House for a feast of delicacies served in a clay pot.  This activity again was not open to any person other than the Tos, Tangs and Yuens of Nai Wai. 

76.  What the Plaintiff said in relation to the activities carried out in the name of and subsidized by the Tong were not really in dispute.  The dispute lies in whether the Plaintiff and his ancestors have taken part in these activities as members/households of the Tong or merely as households of Nai Wai.

PW3 – To Wing Fat

77.  He is a cousin of PW2 To Sau Lam.  He used to live next door to a Yuen household.  He is very friendly with the Yuens and used to collect the Tong’s payments on their behalf.  His evidence is also similar to that of PW1 and PW2.  He also added some more details. 

78.  He said the Tong pays a yearly sum as fruit expenses (生果金) to all those of the Tos, Tangs and Yuens (including females) who are 60 years old and above.  The parents of PW4 Yuen Ling Yau have received such payments.  The Tong also pays a money gift for funeral (帛金或奠儀) when someone of the households of the Tos, Tangs or Yuens passes away.  In addition, there are activities in Nai Wai that are confined to the Tos, Tangs and Yuens.  Whenever the eldest son of a household gets married, the head of the house would send out household invitations (門頭帖) to all other households inviting them to have a feast of delicacies served in a clay pot.  When a household marries a daughter away, this household would, in addition to hosting the clay pot feast, also give each of the other households two Chinese wedding cakes.  When a male baby is born to a household, all other households would receive two Chinese fried dumplings.  To Wing Fat again did not appear to have any axe to grind in giving evidence for the Plaintiff.  He is also a straightforward witness.

PW4 – Yuen Ling Yau

79.  He has made a short witness statement.  He maintained that he is a member of the Tong and had been enjoying the benefits and discharging the duties as such.  The Tong had been distributing pork or money in lieu to his family for years.  His parents had also received the yearly fruit expenses from the Tong.  These payments only ceased when the Defendants stopped giving them any benefit of the Tong. 

80.  He also said in oral evidence that when he was 10 to 11 years old (about 1970), his mother told him that the Community (大眾) was distributing pork.  He then went and took a share of the pork back home.  He did it in two to three years.  After the Tong had ceased distributing pork, it gave a payment in lieu.  Such payment was included in the Tong’s end of the lunar year payment.  He has two sons and they have taken part in the lantern lighting ceremony.  When one of his elder brothers Yuen Ling Shing died in a traffic accident, the Tong gave his family $5,000 as money gift for the funeral.  His father and two elder brothers had also participated in digging up the debris of the fishpond and to recover the original boundary.  It was his father who first rediscovered the boundary in the course of digging.  He had two uncles who had no son.  Their households lapsed when they passed away. 

81.  He also said that in June 2003, Mr To Yau Shun, the father of DW1 To Shui Tai the 2^nd Defendant, who was then the most senior of all the Tos, was keen that he should not be excluded from the Tong’s distribution of money.  Mr To Yau Shun passed away in April 2004 and he had also gone to the funeral to pay his respect.  This matter was disputed by the 2^nd Defendant who said his father then was in poor health and living with him in Yuen Long.  However, I should not be surprised if Mr To should have appeared on the occasion described by PW4 which happened in June 2003.  Mr To was a senior and respected member of the Tos and a previous manager of the Tong.  On that occasion, the Tong was distributing $15,000 to each household of the Tos, Tangs and Yuens. 

82.  The fact that To Yau Shun was in favour of including the Tangs and Yuens for distributing the Tong’s benefit is corroborated by the evidence of DW1, To Shui Tai and DW4, To Yue Sun, though the reason of To Yau Shun as relayed by them appeared equivocal.

PW5 – To Kam Cheung

83.  He is 74 years old.  He was made the village representative in 1985 and remained in that office for 14 years.  He said all old villages in the New Territories have a Fuk Tak Kung and some villages are composed of different surnames.  He cited the neighbouring village of Shun Fung Wai as an example.

84.  On the appointment of managers for the Tong, he said each of the three managers represented three significant groups of the Tos who live in Nai Wai.  They are the descendants of To Shek Tsuen Tso, To Pong Shing Tso and the Third Fong of To Ka Yi Tso.  Since the Tos are the majority, they would not allow the Tangs to be appointed as managers.

85.  He disagreed that the Tangs and Yuens should be excluded from the Tong as they have all been included when the Tong required contribution of funds in the past and that had been so for over a century.  He thought it was wrong to exclude the Tangs and Yuens from the Tong.  The rest of his evidence is the same as that of PW2 To Sau Lam and PW3 To Wing Fat.  He also has no axe to grind in speaking for the Tangs and Yuens.  As for PW2 and PW3, he demonstrated the same passion for what he believed to be the truth.

THE DEFENDANTS’ EVIDENCE

DW3 To Koon Nam

86.  The evidence of DW3 is most comprehensive.  He has made two lengthy witness statements.  He admitted at the beginning of his witness statement that up to the middle of the 1990s, he had no clear idea as to the affairs of the tsos and tongs of the Tos in Nai Wai.  He did not then know if the Tangs and Yuens had any property rights in the Tong.  He was also not bothered by the Tong’s payment of money to the Tangs and Yuens in the early 1990s as the annual sums involved were only $3,000 to $4,000.  He relayed an alleged hearsay by To Kam Cheung (which To Kam Cheung had denied) and another hearsay by a nephew of To Kam Cheung to the effect that the Tangs and Yuens had no share in the Tong.  But the hearsay statements did not contain any supporting reason.

87.  In 2002, there was a large sum of compensation for land resumption for distribution.  The argument of whether the Tangs and Yuens were members of the Tong again came to the forefront.  He then decided to investigate the matter.  He studied the Block Government Lease and discovered some lots that had been leased by the government to the Tong with particulars of the Tong’s manager, but there was nothing to show if the Tangs and Yuens had any interest.

88.  On 16 July 2003, he together with the 3^rd Defendant To Tim Hing and DW4 To Yue Sun went to the District Office and obtained copies of three applications for appointment of managers and their annexed lists of members dated 5 November 1973, 13 March 1974 and 26 March 1974.  As pointed out above, these lists of members only contained the males of surnamed To.  He also obtained the two applications for To Fuk Tak Kung and Fuk Tak Kung both dated 15 February 1995 with lists of members attached.  The list of members for To Fuk Tak Kung only contained males of surnamed To whilst the list of Fuk Tak Kung included the Tangs and the Yuens.  He regarded the list annexed to the Fuk Tak Kung application as erroneous as there was no authority for the list to include the Tangs and Yuens.  He took the view that only the lists made in 1973 and 1974 are correct and thus only the Tos in Nai Wai are members of the Tong.  He however had not obtained copies of the applications dated 25 July 1988 and 19 August 1991.  The lists of members annexed to these two applications referred to all the villagers in Nai Wai.  

89.  He made a distinction between the households of the Tong and the households of Nai Wai.  He said the households of Nai Wai (not of the Tong) including the Tangs and Yuens had to take turn to share the work of the traditional rituals like thanksgiving at the year end, the prayer for blessing at the beginning of the lunar year and the feast on the clay pot on the 16^th day of the 1^st lunar month.  He said there were originally only the Tos in Nai Wai.  Hence all the work of the religious rituals were done by the Tos.  After the Tangs and Yuens had moved in, they were allowed to take part in these rituals as they also worshipped Toe Tei Kung, but they had no interest in the Tong.  They are thus only households of Nai Wai but not households of the Tong.  They cannot share any rights and benefits of the Tong.  He also referred to those people who recently came to live in Nai Wai as tenants.  He said that these tenants were neither households of Nai Wai nor households of the Tong.  For the Plaintiff and those on his side, they agree that these newcomers are not households of the Tong.  But they do not accept that the households of Nai Wai are separate and distinct from the households of the Tong.  They treat both households as the same.  Hence the newcomers are not households of any kind.

90.  To Koon Nam did not know when the Tong was established or when it had acquired some land, but he thought that the Tong must have been established by the Tos before the Tangs and Yuens had come to Nai Wai as the Tos had been in Nai Wai for much longer than the Tangs and Yuens.

91.  Regarding the statutory declaration by To Sau Lam as referred to above, he disagreed that the Tangs and Yuens are indigenous villagers of Nai Wan.  The commonly understood definition of an indigenous villager (原居村民) or indigenous inhabitant (原居民) in the New Territories is a person who was in 1898 a resident of an established village (原有鄉村) or indigenous village (原居鄉村) or a person descended from his male line (See section 2 of the Government Rent (Assessment and Collection) Ordinance, Cap. 515 and section 2 of the Village Representative Election Ordinance, Cap. 576).  There is no dispute that the ancestors of the Tangs and Yuens were in Nai Wai more than 100 years ago and had already acquired a number of house lots and agricultural lots as specified in the Block Government Lease issued in 1905.  It is more likely than not that they were indigenous villagers or inhabitants. 

92.  To Koon Nam however coined his own definition of indigenous inhabitant.  He referred to indigenous inhabitant as an inhabitant originally residing in a specific area.  I do not quite understand what he meant.  He seemed to be arguing that only those who resided in Nai Wai at the beginning and their descendants are its indigenous inhabitants and the Tangs and Yuens, who only came later, are not.  He argued that since Nai Wai had been established for over 300 years and the Tangs and Yuens had only been in Nai Wai for 100 odd years, they therefore could not be regarded as indigenous villagers.  I do not think such argument is valid because the definition adopted by To Koon Nam is not in line with the commonly accepted one.

93.  The next point he dealt with was To Sau Lam’s estimate that the Tong had been established for no less than 150 years.  He took To Sau Lam’s statement to mean that the Tong was established 150 years ago by the Tos together with the Tangs and the Yuens.  This is not what To Sau Lam has said.  To Sau Lam merely estimated that the Tong had been established for at least 150 years, he did not place any upper limit for it.  To Sau Lam also said in the next breath that the Tong belonged to all villagers of Nai Wai including the Tos, Tangs and Yuens.  To Koon Nam’s argument with To Sau Lam on the length of the Tong’s existence is just a shadow boxing.

94.  To Koon Nam then discussed how the Tangs and Yuens had moved into Nai Wai and their social status.  He himself had no knowledge of such matter.  He only relied on the hearsay evidence of others.  However, as will be seen below, how the Tangs and Yuens had initially come to Nai Wai and their then social status have nothing to do with my reasoning for my judgment.  I also think that his estimate of time when the Plaintiff’s grandfather had settled in Nai Wai is likely to be inaccurate bearing in mind that the grandfather and the grandfather’s uncle had already reached majority in 1905 and were named as lessees in the Block Government Lease.

95.  To Koon Nam also disagreed with To Sau Lam that the Tong was owned by all the villagers in Nai Wai including the Tangs and Yuens.  He referred to the lack of evidence that the ancestors of the Tangs and Yuens had together established Nai Wai and purchased land to establish the Tong.

96.  Regarding the Plaintiff’s claim that the Tong is owned by the Tos, Tangs and Yuens together, he challenged the Plaintiff to produce proof to show the shares or portions of the lots of the Tong that are owned by them.  He emphasised this point in his supplemental witness statement by drawing analogy with other ancestral worshipping tsos and tongs. 

97.  I find it difficult to understand this point.  The Plaintiff’s case is that he is one of the many households of the Tong and his interest in the Tong is the same as that of any other household of the surname To or Tang or Yuen.  He is not saying that he is holding any or any share of property through the Tong or the Tong is holding any lot or part thereof as his trustee.  He is also not saying that he or the Tangs are co-owners of the properties held in the name of the Tong.  I do not see how any argument on the ownership of any share of any lot can arise from the nature of the Plaintiff’s claim.  This argument can only be based on a misunderstanding of the Plaintiff’s claim.  Any analogy with other tsos or tongs is also inappropriate as different tso or tong may have been formed for different purpose and/or for different historical background.  It is also inappropriate to compare ancestral worshipping tso with the Tong or to treat the Tong as such.  Though the Tong and its activities cannot be dissociated with religious worship, it is not for ancestral worship of the Tos.

98.  To Koon Nam also referred to the manager of the Tong as registered in the Block Government Lease who was surnamed To and there was no manager of the surname Tang or Yuen.  He also referred to the transfer of eight lots which were registered in the name of Fuk Tak Kung to the name of To Fuk Tak Kung via a document dated 10 January 1957 which appointed his father as the manager of the Tong.

99.  Regarding the contribution of grains for engaging evening security patrol, which is a strong ground relied on by the Plaintiff and his witnesses, To Koon Nam said that he was certain that those who had fields to cultivate and hence the obligation to contribute the grains would not have contributed more than necessary for engaging the patrol guards.  He did not say why he was so certain, but he seemed to have admitted that prior to receiving To Sau Lam’s statutory declaration, he did not even know that there was a system for collecting grains to engage patrol guards.

100.  He also disagreed with To Sau Lam on a number of other things like the villagers performing voluntary patrol service with the income credited to the Tong, the villagers contributing money to provide for common facilities and each of the household in Nai Wai contributing $2 to acquire a house lot at $25 and to build the Community House thereon.  He also argued that the funds for acquiring the house lot for the Community House on 29 April 1932 and the funds for building this house thereon did not come from the household contributions, but were from the sale of six lots of the Tong’s for $900 on 6 July 1933 (which was a year and two months after the purchase of the house lot and which was the same year when the Tong had to organise its own evening patrol after Nai Wai had withdrawn from the Hall of Royalty and Justice). 

101.  He argued on the one hand that the $2 were of a great value in 1932 and it was unlikely that each household would have been willing to contribute this sum.  On the other hand, he suggested that the Tong had to raise $900 by selling six lots 14 months later for buying the house lot and to build the Community House.  If $2 were of a great value, the value of $900 would have been tremendous.  In all likelihood, the Community House was only a simple building that the villagers themselves could have constructed.  I cannot imagine that the labour and material for constructing this building should be as much as $875 or thereabouts when the house lot only worth $25.  Furthermore, if the Tong had to sell six lots in mid-1933 to raise $900 for this project and there is no evidence that it had any substantial income in those days, I cannot understand how the Tong would have been able to purchase four agricultural lots at $700 on 20 March 1936 (See Memorial No. 95329).

102.  He also disagreed that the purchase of the three lots by the Tong on 27 August 1948 was by using the surplus of patrol grains.  He said the purchase price came from the Tong’s own resources.  However, his arguments are all based on some vague hearsay or double hearsay and his own arguments.

103.  He presented the thesis in his supplemental witness statement on the genesis of the Tong.  He theorised that the Tong all along had sufficient income for all the religious rituals and activities before and after the Tangs and Yuens had come to Nai Wai.  There was therefore never any need for the Tangs and Yuens to contribute anything to the Tong.  The Tong in fact subsidized the Tangs and Yuens by allowing them to take part in these activities.  However, this remained his thesis based on his conjecture.

104.  His oral evidence however contradicted his assertion that the Tong was always affluent and rich in cash.  He referred to the practice of the Tong in the old days to engage a Taoist priest to say prayers and pray for blessing for each and every household of Nai Wai by chanting the household names.  However, the fees of the priest increased in line with inflation but the rental income of the Tong could not catch up.  There came a time in the 1960s when the rental income was not enough to pay the priest.  The then manager of the Tong, To Hop Nang then decided not to engage the priest for the prayers and blessing.  The practice of buying a pig with household contributions and the Tong’s subsidy for the ritual and the subsequent distribution of pork to each household also stopped at the same time.  (According to DW1, To Shui Tai, the distribution of pork was replaced by the Tong giving each household a lai-see or lucky money.)  This evidence shows that the Tong was not always cash rich and it could have financial difficulty or inconvenience in staging all the traditional religious activities.

105.  To Koon Nam in his oral evidence further emphasised a few points to support his argument to exclude the Tangs and Yuens from the Tong.  He referred to the absence of anyone of the surname Tang or Yuen from the members’ lists written by his father on 5 November 1973 and written by PW5 To Kam Cheung on 13 and 26 March 1974.  He said the properties under the name of the Tong belonged to the To’s ancestors who used these lots to establish the Tong.  He also relied on the fact that the manager of the Tong as stated in the Block Government Lease was To Hing Tsun and not a person of the surname Tang or Yuen.

106.  One of the points that have been made by the defence witnesses is that the Tangs and Yuens had not taken any part in the affairs of the Tong or attended any meeting of the Tong.  However, To Koon Name also admitted in his evidence in chief that prior to 1990, he had not attended any meeting of the Tong.  After 1990, he had only attended some meetings in relation to an issue of whether some proceeds of land resumption should be used to build for more houses for the Tong or should instead be distributed to the households.  The other affair that he had participated in is the subject matter of this litigation.

DW1 To Shui Tai, the 2^nd Defendant

107.  He is one of the three incumbent managers of the Tong.  His father To Yau Shun was a former manager and at one time the most senior and respected of the Tos.  To Shui Tai’s evidence in cross-examination shows that To Yau Shun was in favour of including the Tangs and Yuens for distribution of the Tong’s money though the reason as relayed by him appeared to be equivocal.  DW4 To Yue Sun gave the same evidence.  To Shui Tai’s stance is however opposite to that of his father.  He also said in his witness statement that his father had once told him that To Fuk Tak Kung belonged to all the Tos in Nai Wai but Fuk Tak Kung belonged to the Tos as well as the Tangs and Yuens of Nai Wai.  This tallied with the approach adopted for the two members’ lists complied on 15 February 1995 which bore the signatures of To Yau Shun and the three defendants herein. 

108.  To Shui Tai succeeded to his father’s managerial post in 1995.  He had signed cheques for the Tong to make payments to the Tos, Tangs and Yuens.  He only stopped paying the Tangs and Yuens at the end of 2003.  He said he did not know why the Tangs and Yuens were not members of the Tong, he therefore continued the previous practice (of which his father had partaken) of paying the Tangs and Yuens.

109.  He stopped paying them upon being given the members’ lists made in 1973 and 1974 by To Koon Nam, To Yue Sun and To Tim Hing, the 3^rd Defendant (who did not give evidence).  These lists did not contain any Tang or Yuen.  He also emphasised that the Tangs and Yuens had not taken any part in the meetings or affairs of the Tong.  He cited the example of a deliberation by the Tong on whether to advance a loan of $400,000 to To Ka Yi Tso for use as legal fees in HCMP No. 562 of 1992 and HCMP No. 2084 of 1994.  He also dealt with some other events which took place after this dispute has arisen.  I do not think those matters are relevant for the resolution of this dispute.

110.  To Shui Tai, To Koon Nam and To Yue Sun all referred to an incident on 26 September 2004 in which they alleged that PW5 To Kam Cheung had said that the Tangs and Yuens were not members of To Fuk Tak Kung but were members of Fuk Tak Kung.  Even if To Kam Cheung had indeed said so, I do not think he had any basis for saying it.  Though there is no evidence to explain why there should be two names for the Tong and each name has land registered under it, the evidence is that both To Fuk Tak Kung and Fuk Tak Kung refer to the same entity which is also called the Community.  There is also only one set of account kept for all the income and expenditure under all these names.  Both sides also take To Fuk Tak Kung and Fuk Tak Kung and the Community as names for the same entity. 

111.  If To Kam Cheung should have made the alleged statement, I think he was merely trying to resolve the matter by suggesting what he thought to be a middle of the road solution.  It might have been for the same reason that To Yau Shun had compiled the members’ lists on 15 February 1995 allowing the Tangs and Yuens to be members of Fuk Tak Kung but not of To Fuk Tak Kung.  It is To Shui Tai’s evidence that this dispute had already arisen in about 1993 and before To Yau Shun had compiled those lists.  However, as Fuk Tak Kung, To Fuk Tak Kung and the Community all refer to the same entity and both sides agree that this is the case, whatever To Yau Shun might have intended and whether To Kam Cheung had made the alleged statement on 26 Sptember 2004 are of no relevance.

112.  In his oral evidence, To Shui Tai also agreed that the members of a tong can have different surnames and, depending on the rules of the particular village, it is not necessary to have a manager for each of the surnames.

DW2 To Ying Tat

113.  He is now 73 years old.  His witness statement was written by his nephew for him and he adopted it as his evidence.  His evidence is more or less the same as that of the other defence witnesses.  Regarding the Community House, he said he heard from his mother that it was built with the proceeds of sale of the Tong’s land.  The same applied to the construction of the Rural Community Building in 1975.  He denied that these two buildings were built with money collected from the Nai Wail villagers.

114.  I have already commented on the funding for the building of the Community House in the context of the evidence of To Koon Nam.  I also consider the hearsay evidence of To Ying Tak on this point as vague.  His evidence on other matters contains much more details.  For the Rural Community Building, there is no dispute that the funds for its construction came from the Tong.  The Plaintiff’s case on this building is that the committee charged with the building task comprised one of the Yuens and this showed that the Yuens were also members of the Tong.

115.  DW2 confirmed that money had been collected from Nai Wai villagers for the year-end thanksgiving, the distribution of pork and the clay pot feast on the 16^th day of the 1^st lunar month.  However, the engaging of Taoist priest for the thanksgiving, the distribution of pork thereafter and the clay pot feast had all been abolished for decades.  For the other events, no contribution was required from the villagers. 

116.  He also referred to various sources of income of the Tong.  One of which was payment for the right to gather cow dung in and around Nai Wai.  This right was open to tender every year.  The income in exchange for this right was credited to the Tong, but this tender arrangement had also been abolished for over 50 years.

117.  On the mode of distribution of benefit, To Ying Tat’s evidence show that the tsos of the Tos adopted either the per capita mode or the per stirpes mode.  Only the Tong adopts the per household mode.

DW4 To Yue sun

118.  His witness statement is relatively short and repeats the points made by the other defence witnesses.  He also referred to certain statement made by To Kam Cheung that the Tangs and Yuens should be members of Fuk Tak Kung but not of To Fuk Tak Kung.  I think he was referring to the incident which allegedly happened on 26 September 2004.  I have already commented on that in the context of To Shui Tai’s evidence.

DW 5 To Chi Shing, the 1^st Defendant. 

119.  His witness statement is the shortest one.  He merely repeats in gist the points made by the other defence witnesses.  He is in fact a reluctant witness for the defence.  He does not like this dispute and litigation.  He loves peace and harmony in Nai Wai.  He is a good man.  He is ready to offer his interest in the Tong to the Tangs and Yuens to settle the dispute.  However, his goodwill cannot settle the dispute.  He has written a number of passionate letters to his fellow managers and fellow members of the Tos trying to pacify the dispute, but to no avail.

120.  The first of these letters as produced was written to DW4 To Yue Sun on 26 June 2003.  It was written before the commencement of this action.  The writ of summons was only issued on 9 October 2004.  It is worthwhile to set out here the free English translation and the original version of this letter:

“	Elder brother Yue Sun,
	Regarding the recent issue of distribution of money by Fuk Tak Kung, you reported to many managers that it should not be necessary to distribute money to those surnamed Yuen and Tang of this village.  I am the manager of this village and have difficulty in deciding it.  (We) should summon everybody to a meeting with (sic) the majority agreeing with the minority.
	Yue Sun, speaking for myself, (I) know that they of the two surnames have had shares in our village for several decades.  In those days, the two surnames had great achievements for this village.  They love this village.  Earlier on, the land of Wing Fat Warehouse was encroached upon by others, (if) they should have refused to help, how can there be over one million dollars of rental income now.  At that time, the venerable senior people had said that they had helped and thus had shares.  Your action is also appropriate.  But are (you) paying respect to the promise of (our) ancestors?  Have (you) thought about the times when (everybody) shared both prosperity and adversity (and they) cherished and cared for us?  Sometimes (as between) the law and human feelings, human feelings are also important.  To dispute over it when the time comes will result in what?  The majority should not wrangle with the minority.  (I) wish you would consider the word “sentiment”, consider (our) predecessors and ancestors, their antecedents and consequences.  It is a good thing for (our) ancestors to give money to others.  (There is) no need to place the law and the multitude of people in the forefront.  (Please) listen to me (and) do not make things difficult for me.  I have not received advantage.  I (say this) on my conscience.  Money cannot buy my conscience.
	To Shing, Manager of To Fuk Tak Kung”
“	裕新家兄：	二OO三年六月廿六日
	關於近日來福德公分錢一事你向多位司理人報告對本村姓袁及姓鄧兩姓該不用分錢給佢，我當本村司理人，難以决定，應召集大家開會多數讚成小數。
	裕新：我本人來說所知他們兩姓已在本村數十年都有份子。當時兩姓對本村功勞相當大，愛護本村，早時永發倉地給人霸佔，他們不肯幫手，到現時点會有百幾萬租金收入，當時老人家說過佢地幫手就有份子。你的行動也適合，但是否尊重祖先承落，有否想下同甘共苦之時愛護我地，有時法例與人情情也大，到時爭執有如何？不用人多爭人小。希望你想個情字，想下前人祖先祖先因祖先果，祖先給錢人好事，不用將法例人多擺在前，聽下我講無謂令我難做，我冇收到利益，我憑良心，良心，用金錢買不到我良心。
	陶福德公司理人陶勝”

ANALYSIS AND CONCLUSION

How was the Tong established?

121.  The Tong is named after Toe Tei Kung the earth god.  The Defendants have rightly revised their case by arguing that the Tong is their family tong and not one of their ancestral worshipping tsos.  The Tong is definitely different from To Ka Yi Tso and the many ancestral worshipping tsos of the Tos as mentioned in the evidence.

122.  An ancestral worshipping tso is normally set up after the death of a person by his sons for his veneration.  His sons set up the tso in discharge of their filial duty in accordance with the Confucian tradition.  The properties of the deceased’s family would be placed under the tso so that they would be preserved intact.  The income from the tso properties would be used for the sacrificial rites for the deceased, for keeping the ancestral temple, if there is one, for education and for distribution among all the male descendants of the deceased (see Tang Kai Chung Anor v Tang Chik Shang & Ors [1970] HKLR 276 at 279, 305-307 and 314).

123.  The Tong is different.  It is not for venerating any ancestor of the Tos.  Even on the Defendant’s case, not all the members of To Ka Yi Tso are members of the Tong but only those who live in Nai Wai are members.  Those members of To Ka Yi Tso who live in the other villages set up by the Tos in Tuen Mun are not members of the Tong.  However, the Tos who live in Nai Wai belong to different fongs of To Ka Yi Tso.  Different members of the same fong may live in different villages.  In fact, only two households of the first Fong live in Nai Wai.  The assets of the Tong are thus not for the benefit of all the male descendants of any particular ancestor.  The three managers are appointed from the third Fong of To Ka Yi Tso, To Shek Tsuen Tso and To Pong Shing Tso.  They have significant numbers of households in Nai Wai.

124.  There is no dispute that the shrine or temple for Fuk Tak Kung or Toe Tei Kung in Nai Wai should have been set up at the time when Nai Wai was built as it was necessary to have his protection in the course of constructing the walled village or, at the latest, when the village was inhabited.  The shrine or temple of Fuk Tak Kung in Nai Wai should thus have a history of between 210 to 270 years.  This shrine however is not for ancestral worship.  The Tos have their ancestral temple next to Tuen Tsz Wai. 

125.  There is however no evidence on when the Tong as an entity with assets and in the name of Fuk Tak Kung was set up.  It was unlikely to have been set up with the properties of any individual as the properties would benefit not only his descendants but also the other Tos in Nai Wai (assuming that the Tangs and Yuens had not yet appeared). 

126.  I also consider the possibility that certain ancestral worshipping tso of the Tos might have contributed properties to set up the Tong.  However, in that event, the properties from that particular tso would benefit only those members of this tso who reside in Nai Wai and also those who are not members of this tso but who also live in Nai Wai.  The members of this tso who do not live in Nai Wai would not be benefited.  That would be contrary to the purpose of this tso and the interest of its members who do not live in Nai Wai.  I do not think this probable.  I therefore do not consider that the properties of the Tong could have been contributed by any tso or tsos of the Tos.

127.  On this point, I have also considered the situation of Wing Lung Wai Community (永隆圍大眾) in HCA 761 of 1996 (paras. 2 and 3).  Its membership is also based on households (門頭戶口).  Though the Tong is also called the Community (大眾), it is very much different from Wing Lung Wai Community.  There is in this case no evidence of how and by whom of the Tos was Nai Wai formed. 

128.  Some of the houses in Nai Wai belonged to certain ancestral worshipping tso of the Tos and other houses belonged to individuals.  Some of the tsos which owned houses in Nai Wai probably have a longer history than Nai Wai itself.  It is not known if these tsos, their members or their focal ancestors had taken part in setting up Nai Wai or the houses were only acquired by them after Nai Wai had been established.  In fact some of the houses owned by the Tangs were adjacent to a house owned by a tso of long standing, but it has not been seriously argued by the Plaintiff that the Tangs had played a part in setting up Nai Wai.  It was more likely than not that the Tangs only acquired their houses after Nai Wai had been built. 

129.  Another distinction between the Tong and Wing Lung Wai Community is the lack of any religious flavour in the Wing Lung Wai Community.

130.  I think it may be more useful to consider the nature and activities of the Tong in order to fathom out the probable cause and means of its formation.  Though some of the defence witnesses tried to argue that the Tong has nothing to do with the worship of Fuk Tak Kung, I do not think I can subscribe to such view.  If the Tong is a mere family tong and has nothing to do with religious worship, I cannot imagine why it should be called Fuk Tak Kung.  This is particularly so when the important activities in the past that were associated with the Tong were of a religious nature.  They were the year end thanksgiving ritual, the distribution of pork thereafter, the new year prayer for blessing, the lighting of the lantern for the new born babies, the distribution of cooked pork by the families of the new babies and the distribution of sugar of peace and health. 

131.  Nai Wai used to be an agricultural community where worshipping rites occupied an important part of the lives of peasants.  They were part of their social lives too.  These activities were organised in the name of Fuk Tak Kung.  Thus where ancestral worshipping tsos were set up to preserve family properties and to venerate ancestors, the Tong should have started off as a name for organizing other religious activities for the village as a whole.  In order to bring about these activities, it would have been necessary to collect financial contributions from the households in the village.  Since Nai Wai’s history extends for over 200 years, it was possible that in the course of time, surplus funds had been accumulated and were used to purchase properties for the Tong.  The income from such properties were then used to subsidize the religious activities.

132.  I appreciate that some aspects of this explanation are not supported by direct evidence.  There is no evidence as to collection of funds and the amounts collected in the past, how much had been accumulated at what time and how were the properties purchased.  However, in the light of what is known, this explanation appears to me to be the most probable one.

133.  The Tong was also given the name To Fuk Tak Kung possibly because the Tangs and Yuens had not yet come to Nai Wai when the Tong was established and properties already acquired in its name. 

134.  Though some defence witnesses have asserted that the properties of the Tong were left to them by their ancestors, there is no evidence to support such assertion.  I have already considered the possibilities of properties having been given to the Tong by individuals or by ancestral worshipping tsos and have concluded against them.  If any individual should have desired to leave any property to his descendants, the simple solution was to set up an ancestral worshipping tso, not a tong which was for organising religious and other activities for the whole village.  I therefore cannot accept those assertions.  Unlike the properties of ancestral worshipping tsos, which are preserved for the benefit of the descendants of particular persons, the Tong’s properties were acquired to generate income to subsidise activities organised in the name of the Tong.  Even for the properties that were acquired by the Tong before the Tangs and Yuens had come, they were acquired for the benefit of the whole Nai Wai village and not for any particular fong or tso of the Tos.  One can argue that these properties were purchased with money contributed by the Tos, but they did not contribute the money for acquiring property to hand down to their descendants.  The Tong is not of an ancestral nature or for succession purpose.

135.  It is probably because of the nature of the Tong, which is to do good to the village as a whole, that it is also known as the Community.  Probably for the same reason that when Nai Wai withdrew from the Hall of Royalty and Justice in 1933, the role of organising the security patrol was given to the Tong rather than to any ancestral worshipping tso of the Tos.  Though only those engaged in farming had to provide the patrol grains and the quantity of grains was proportional to the area of cultivation, the collection of grains and engagement of patrol was still a community matter for Nai Wai rather than a matter purely for the Tos or any particular fong or ancestral worshipping tso of the Tos.  The security patrol was to prevent theft and had a positive effect on the maintenance of law and order in and around Nai Wai.

Inclusion of the Tangs and Yuens as members of the Tong

136.  Turning to the Plaintiff and the other Tangs and the Yuens in Nai Wai, it was probable that their ancestors had only come to Nai Wai sometime in the 19^th century at which time Nai Wai was fully established and the Tong already in place.  However, it is clear that they and their ancestors had been accepted as members of the Tong for decades if not a century or over.  There was nothing wrong in admitting them as members because the Tong was set up to organize religious and communal activities for Nai Wai and not to venerate any ancestor of the Tos. 

137.  Their being members is confirmed by the letter written by DW5 (To Chi Shing, the 1^st Defendant) to DW4 on 26 June 2003 as quoted above.  This is also evidenced by the fact that the Tangs and Yuens had been included in all the religious and other activities organised in the name of the Tong as enumerated above.  They have also taken part in the rotation of households to undertake the duties to bring about the activities.  They have all made payments for such activities as the Tos had done, albeit the payments, except the patrol grains, might not have been enough for the activities and the Tong had to provide subsidies.  They had also been summoned by the Tong to take part to restore the boundary and area of the fishpond.  One of the Yuens had also taken part in building the Rural Committee Building with the Tongs’ funding.  Their seniors had been paid the fruit expenses every year until 2003.  When there was the unfortunate event of the death of a member of a Yuen household, the Tong had given that household a funeral gift of money.

138.  The Tangs and Yuens were treated in everyway as members of the Tong.  I can see no distinction between them and the Tos.  I also note that none of those new comers who have moved into Nai Wai as tenants in the last 10 years as tenants have been accorded similar treatment or have been included in the activities of the Tong or the communal activities of Nai Wai.

139.  When the Tangs and Yuens were invited or allowed to take part in these communal activities, Nai Wai was still an agricultural community.  There is no evidence that at that time they had been told that they were only allowed to partake in the activities, but not as members of the Tong.  At that time, I do not think anyone would have anticipated that the Tong would have so much cash and would make such generous cash distributions.  In those days, the New Territories were still not developed and there was no satellite city.  Price of agricultural land in those days was very much lower.

140.  It has also been suggested that there are two types of households namely that of the Tong and that of Nai Wai and the Tangs and Yuens only belong to the Nai Wai households.  Again, one cannot see any difference between the two types of households as suggested except that the households of the Tong would together own the Tong.  This alleged distinction is again made for the purpose of excluding the Tangs and Yuens from the Tong.  It also sounds unreal.  There is also no evidential basis for it.  I find that the Tangs and Yuens have been accepted as households of the Tong in every aspect as the Tos for many decades probably extending before 1933.  I also find that there is just one type of households in Nai Wai.  Those who have moved into Nai Wai recently are not included in these households.

141.  All in all, I find that the Plaintiff has proved his case.  I would go further to say that even if the properties of the Tong had come from some ancestors of the Tos or some of their ancestral worshipping tsos, my decision would still be the same.  The Tangs and Yuens had been admitted as members of the Tong for decades and they have all played their part and made their contributions, monetary or otherwise, as any other member had done.  The Tos cannot exclude them from the Tong now regardless of the source of the Tong’s properties.

Further points raised by the parties

142.  In addition to the analysis and comments above, there are a few other points that I would also address. 

143.  Some defence witnesses have asserted that the membership list of Fuk Tak Kung of 15 February 1995, which stated included the Tangs and Yuens as members, was wrongly compiled.  One further suggested that the inclusion of the Tangs and Yuens was for want of authority.  The defence written submissions even suggested that To Yau Shun, the father of DW1 To Shui Tai, had subscribed his signature to this list hastily and casually.  However, they did not explain how those who had compiled and endorsed this list had fallen into error by including the Tangs and Yuens without authority.  There is no evidence for the suggestion that To Yau Shun had subscribed to this list hastily and casually.  To say so is, to put it mildly, disrespectful to a kind and compassionate gentleman who is no longer with us.  This list was compiled by those who were more senior and who at the time had the duty to manage the affairs of the Tong.  I do not see why these witnesses should know better than their seniors who were then managing the Tong’s affairs.  I also refer to the lists dated 25 July 1988 and 19 August 1991, which had been endorsed by To Yau Shun and others, they also impliedly included the Tangs and Yuens as members.  They were compiled at times when this dispute had not yet arisen. 

144.  The defence witnesses also argued that all managers of the Tong were and are surnamed To but the Tangs and Yuens had not been appointed as managers.  The simple answer to this is that the Tangs and Yuens have always been minorities and it is not surprising that none of them has been appointed as a manager.  In fact even the members of the 1^st Fong of To Ka Yi Tso has not been appointed as they also constitute a minority.

145.  Another argument is that the Tangs and Yuens had never attended any meeting of the Tongs.  They had not voiced their views even when the Tong deliberated on whether to advance $400,000 to To Ka Yi Tso for use in litigation.  However, even DW3, To Koon Nam had admitted that he had seldom attended to the affairs of the Tong.  Prior to this dispute, he had only attended a few meetings to consider whether some compensation money should be distributed or should be used to build more houses to generate income for the Tong.  He had not involved himself with any other affairs of the Tong.  It also appears that most decisions of the Tong were made by a few elders and the managers rather than in meetings of members. 

146.  Furthermore, the Tangs and Yuens are minorities and their views, if different from that of the Tos, would not be carried.  One example would be the deliberation of whether to advance $400,000 to To Ka Yi Tso for litigation purposes.  This only concerned the Tos. 

147.  It was also the Tos who had founded the Tong and the Tangs and Yuens were allowed to join by the Tos.  This would also make the Tangs and Yuens adopt a more submissive approach in relation to the Tong’s affairs.

148.  Regarding the cause for the Tong to be known as To Fuk Tak Kung as well as other names, I have already said that the obvious reason being that it was initially set up by the Tos.  However, that would not change the nature of Fuk Tak Kung and it remains a Tong for the whole of Nai Wai rather than an ancestral worshipping tso of the Tos.

149.  It has also been suggested that the event of digging for the original boundary of the fishpond had nothing to do with membership of the Tong.  I think such argument has ignored the fact that the income generated by the letting of the area where the fishpond used to be is now credited to the Tong.  The fishpond was obviously regarded as the property of the community of Nai Wai and hence the property of the Tong.  It was an event organized in the Tong’s name for the Tong’s benefit.  Regardless of whether any member had been penalized for not taking part in it, I do not think the Tong would have called upon non-members to assist in the digging activity.

150.  The written submissions also argued that the Tangs and Yuens had never claimed membership until this dispute had arisen.  The simple answer is that prior to this dispute having arisen sometime in 1993, they had all along been treated as members and there was no cause for any claim by them.   

151.  One witness has also said that in about 1993 when the Plaintiff was given a share of the compensation money, he expressed surprise.  If there should indeed be such an event, it would still be understandable.  That was the first time when there were arguments on whether the Tangs and Yuens should be allowed to share the substantial compensation money.  Knowing that the Tangs and Yuens were minorities, he could well have expected that the Tos might deprive him of his share.  Thus the payment to him of his share was contrary to his contemplation and hence his surprise. 

152.  Finally, there is an argument that relates to the existing Yuens.  They are the children and grandchildren of one Yuen Kam.  Yuen Kam is the adopted son of one Yuen Yik Fat.  The Defendants attack the lawfulness and propriety of this adoption.  This is in fact not an issue that can affect the Plaintiff and it does not really require my decision in this case.  However, I would opine that the lawfulness or propriety of an adoption is a matter of the Yuen family or at the most a matter of the Yuen clan.  It may also be relevant in the dealings of the adopted son with the Government.  But if the Yuens should accept this adoption as valid, it does not appear to be a matter of concern to the Tos even though the validity of the adoption may affect the membership of the Tong.  The membership of the Tong is a very tangential issue to the validity of the adoption.

153.  I would also dispose of an argument by the Plaintiff which again concern the Yuens and not the Plaintiff himself.  The Plaintiff’s witnesses have said that one of the watchtowers had been acquired by the Yuens by adverse possession.  The 1^st point against this argument is that the tower stands on government land and there is no concrete evidence to support an exclusive occupation by the Yuens for 60 years.  Secondly, I do not think there was any intention of exclusive occupation by the Yuens of the watchtower which was sitting next to their house or by the Tos vis-à-vis the other three watchtowers.  This tower had been abandoned because their usage was outdated.  They were merely used by those who lived near to them for storage purpose.  I do not believe the occupiers had any intention to exclude others from access to or using them.  (See the Court of Final Appeal’s judgment in Wong Tak Yue v Kung Kwok Wai David & Anr [1998] 1 HKLRD 241 at 249J to 250B.)

Consideration of evidence

154.  Regarding PW2 To Sau Lam, he is the most senior of all the witnesses in this case.  He was the village representative of Nai Wai during the Japanese Occupation.  He has been for many years personally involved in the communal affairs of Nai Wai.  There is no doubt that he has the interest of the Tos and of Nai Wai in his heart.  He is 84 years old and, for a person at this age, his memory of things happened in the past is extremely good.  I find him is a sincere and trustworthy witness and his evidence is true.  I accept what he said.

155.  PW5, To Kam Cheung, is also a communal spirited person of Nai Wai.  He has been the village representative for 14 years and has been involved in the communal affairs before and after being the representative.  He also has the interest of the Tos and Nai Wai in his heart.  He is very forthright in his evidence.  I also accept his evidence. 

156.  For the other three witnesses of the Plaintiff, there evidence is in line with that of To Sau Lam and To Kam Cheung.  They are also forthright witnesses.  I also accept their evidence.

157.  Regarding the defence witnesses, I have already commented on various parts of their evidence above.  They are eager to preserve the Tong for the Tos because of their belief that all the Tong’s properties were purchased with the Tos’ money and should be preserved only for the Tos.  Unfortunately, they have mixed up the Tong with their ancestral worshipping tsos.  Many of what they said are assertions for advancing the defence case and are based on this misunderstanding.  Their motive to preserve the Tong for the Tos is the cause of their wrongful refusal to acknowledge the Tangs and Yuens as members of the Tong despite they have treated them as such for decades.  In addition to my comments above, I also reject their evidence insofar as they are different from the evidence of the Plaintiff’s witnesses. 

158.  I also do not accept the defence evidence that the Tong has all along been rich in cash.  The Tong no doubt had properties under its name and it enjoyed income therefrom.  However, such income was not very generous and the Tong for a long time could not have underwritten all the expenses of the activities organized in its name.  Some monetary contributions were required from the villagers.  The Tong only subsidized part of the expenses.  In fact, according to the evidence of some defence witnesses, the practice of engaging a Taoist priest to say prayers at the end of the lunar year was abolished in the 1960s because income from the properties could not catch up with the increase in the fees for the priest.  This again showed that the Tong was not rich in cash in the past.  The practice of distributing raw pork at the end of the lunar year was also abolished at the same time and replaced by a monetary payment.  There is no evidence of how much was distributed to the villagers back in the 1960s.  It appeared that such payment in lieu of pork has continued to today.  The amounts were later in creased as the Tong had more and more rental income to distribute.  However, I do not think the amounts paid from time to time were substantial as they did not arouse any objection from the Tos.  Furthermore, in 1977 when Nai Wai was building is Rural Committee Building, the Tong had to sell a piece of land in order to fund the building costs.  This again showed that the Tong was not cash rich at that time.

Cause of this dispute

159.  Those were the days when the villagers in Nai Wai lived in harmony despite their different surnames.  The parties in this case grew up in Nai Wai in harmony and as good friends.  They had no conflict of interest.

160.  The first time when there was conflict amongst them was in about 1993 when the Tong received a substantial compensation for land resumption.  It was decided in a meeting that the money should be distributed to the households of the Tong.  Each household was given more than $10,000.  There was then an argument of whether the Tangs and Yuens should also be given a share of the compensation money.  There was no decision against them on that occasion, but the argument continued from then on.  The Tong also continued to make payments to everybody at the end of every lunar year.  The amount paid to each household every year did not appear to be very large as there was no more compensation for resumption until 2002.  The record shows that the amount paid each year since 1997 to 2002 ranged between $3,000 to $6,000.  It was in 2003 when trouble erupted again which led to this litigation. 

161.  In June 2003, each household was paid $15,000 and the money again came from land resumption in the previous year.  This time, many of the Tos objected to payments being made to the Tangs and Yuens, but the Tangs and Yuens were still paid as a result of the pressure of some senior Tos.  After this incident, some of the Tos including To Koon Nam and To Yue Sun went to the District Office to look at the documents of the Tong.  They were able to obtain copies of some of the documents and memorials but not all.  From a study of the documents they obtained, they concluded that the Tangs and Yuens were not members of the Tong. 

162.  Meetings were then held and the Tangs and Yuens attended some of them.  There did not appear to be any resolution and the atmosphere in some of the meetings was not harmonious.  In any event, the managers of the Tong stopped paying the Tangs and Yuens any more money from the end of 2003.  This litigation then started in October 2004.  If there were no land resumption, there would not have been the substantial sums for distribution.  The harmonious relationship would have continued.  Money is the root of all evil?!

Judgment

163.  Since I have found that the Plaintiff has proved his case, I therefore order the Defendants to pay the Plaintiff all outstanding payments due from the Tong since 2003.

COST ORDER NISI

The plaintiff’s costs

164.  Since the Plaintiff has succeeded in his claim, I therefore make an order nisi that the Defendants do pay the Plaintiff his costs of this action. 

The defendants’ costs

165.  When the Defendants manage the affairs and properties of the Tong, their position is akin to that of trustees.  I therefore consider their position under O. 62 r. 6(2).  They have not applied for any Beddoe Order before embarking on the defence of this action.  Now that they have lost the action, they would not be allowed to charge the Tong for the costs unless there are very exceptional circumstances. 

166.  If I should conclude that had they applied to me, I would have made a Beddoe Order allowing them to defend the action with costs to come out of the Tong, then I can allow them to charge the Tong for these costs now.  (See In re Beddoe [1893] 1 Ch. 547 at 558 and 562 and Ip Cheung Kwok v Ip Siu Bun, CACV 79 of 1988 at p.6 to p.9.)

167.  I think there are special circumstances in this case.  This dispute has been in existence since about 1993.  It has a very unsettling effect on the relationship of the Nai Wai villagers.  After the payment of $15,000 to each household in June 2003, this dispute had developed to a scale that cried out for resolution.  The majority of the Tos were against any further payment to the Tangs and Yuens.  The managers could not have ignored their sentiment and the pressure therefrom.  They were placed in an unenviable position.  Regardless of their own thinking, it would have been very difficult for them to continue to pay the Tangs and Yuens.  I note from the letters written by the 1^st Defendant to his fellow Tos that the 1^st and 3^rd Defendants were in fact in favour of paying them, but the reality prevented them from doing so.  At least for the 1^st and 3^rd Defendants, the decision not to pay was not a voluntary one.  However, there was also a significant majority of the Tos who thought that the Tangs and Yuens are members of the Tong and should be paid.  The best way out was for the matter to be adjudicated in this court. 

168.  I am of the view that if the Defendants should have, before embarking on the defence of this action, applied to me for a Beddoe Order, I would have granted it and allowed them to have costs from the Tong to fund their defence.  The judicial resolution of this dispute will benefit the whole village.  I therefore allow the Defendants to recover the costs from the Tong.

Postscript:   Now that the position of the Tangs and Yuens in the Tong is clear, I sincerely hope the different factions of the villagers in Nai Wai can mend their relationship and restore the harmony to this village.  This dispute should be buried and forgotten.  The Chinese New Year is approaching.  It is the custom to paste antithetical couplet scrolls on both sides of the doorway for its celebration.  May I suggest the following antithetical couplet for the residents of Nai Wai to ponder and chew over:

苟非孝悌友恭更有何事可樂

惟此謙和雍睦自然到處皆春