TIN HAU WUI also known as TANG TIN HAU WUI with TANG FUK LEUNG as the Manager v. TING WAI MING AND ANOTHER

DCMP 356/2013

[2019] HKDC 216

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 356 OF 2013

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DECISION

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Introduction

1.  In these proceedings, the plaintiff is now claiming against the 1^st defendant and the 2^nd defendant for recovery of possession of Lot No 1357 in DD 106 (“the Land”).  The plaintiff is the registered owner of the Land.  The plaintiff seeks an order requiring the defendants to deliver vacant possession of the Land to the plaintiff, an injunction, damages for trespass including mesne profits.

2.  The 1^st defendant claims that he has been in adverse possession of the Land since 1 January 1992.  By the commencement of these proceedings[1], he has acquired a possessory title to the Land.  The 1^st defendant counterclaims for the said possessory title.

3.  The trial has been scheduled to commence on 20 March 2019, with 7 days reserved.  There was a pre-trial review on 12 December 2018 (“the PTR”).  In the PTR, the parties agreed that the following question (“the Question”) be determined under Order 14A of the Rules of the District Court:-

“Whether the plaintiff was and is a Chinese customary trust (hereditary in nature) within the meaning of s.15 of the New Territories Ordinance (“NTO”)”

4.  The Question is the issue before me in this hearing.  For the reasons set out below, the answer to the Question may have a significant impact on the outcome of these proceedings.  For the purpose of this hearing, the parties agree that all the witness statements and all the documents in the PTR bundles are being treated as admissible evidence.

5.  Having read the evidence as to service produced by the plaintiff, I am satisfied that notice of this hearing has been given to the 2^nd defendant.  So the ruling of this court on the Question would bind all the parties in these proceedings.

The plaintiff’s case

6.  The plaintiff suggests that the answer to the Question is clearly “Yes”.

7.  The plaintiff claims that there are 10 male members of the plaintiff (“the 10 New Members”) who were born on the following birthdates:-

(1)  13 June 1992

(2)  4 July 1993

(3)  12 October 1992

(4)  24 June 1994

(5)  13 October 1996

(6)  18 December 1999

(7)  17 November 2003

(8)  30 July 2004

(9)  18 August 2005

(10)  12 May 2006

8.  The plaintiff’s case is that the principle in Leung Kuen Fai v Tang Kwong Yu (or U) Tong[2] applies to a Chinese customary trust (hereditary in nature) within the meaning of s 15 of the NTO.  As a result of the births of the 10 New Members, the 1^st defendant’s claim of adverse claim in any event cannot succeed and must fail.  Accordingly, the plaintiff is entitled to have judgment against the 1^st defendant without a trial.

9.  The plaintiff also says that since the 2^nd defendant has never attended any hearing in these proceedings and has never put forward anything to contest the plaintiff’s claim, the plaintiff should be entitled to have judgment against the 2^nd defendant without a trial.

The 1^st defendant’s case

10.  The 1^st defendant claims that the answer to the Question is “No”, or alternatively, there is insufficient evidence proving that the plaintiff is a Chinese customary trust (hereditary in nature).

11.  The 1^st defendant suggests that the controversies in these proceedings should be resolved in the trial.

The principle in Leung Kuen Fai

12.  The essence of the principle in Leung Kuen Fai has been succinctly summarized by Lam VP in Tsang Kwong Kuen v Hau Wai Keung Gaius[3], in which the learned judge said:-

“5. We shall first deal with the Leung Kuen Fai aspect as it is a short point and there is no dispute that the appeal must fail if [counsel] cannot overcome it. The essence of the relevant principle is that due to the peculiar characteristic of a Tso or Tong (preserved by Chinese customary law and s 13 of the New Territories Ordinance Cap 97) with new equitable interest stemming from each new member being admitted upon birth by reason of his hereditary link with the focal ancestor, a person who is in adverse possession cannot extinguish the title of the Tso or Tong under the Limitation Ordinance unless he can establish the requisite limitation period against all the living members of the Tso or Tong.” (Emphasis added)

13.  There is no dispute that the principle in Leung Kuen Fai covers all Chinese customary hereditary trusts.  Mr Siu accepts that the plaintiff is not an ancestral tso.  Mr Siu submits that the plaintiff is a Chinese religious trust set up for the purpose of worshipping the traditional Chinese goddess Tin Hau.  It is a Chinese customary trust hereditary in nature, and is within the scope of the principle in Leung Kuen Fai.

14.  In my view, the essential feature of a trust covered by the principle in Leung Kuen Fai is that each new member is admitted to the trust upon birth by reason of his hereditary link with the focal ancestor.  A trust with this essential feature is a Chinese customary hereditary trust.  A Chinese customary hereditary trust can be set up for the purpose of worshipping the focal ancestor.  However, a Chinese customary hereditary trust can also be set up for other purposes, for example, worshipping a traditional Chinese goddess. Provided that each new member of the trust is admitted to the trust upon birth by reason of his hereditary link with the focal ancestor, it is a Chinese customary hereditary trust within the scope of the principle in Leung Kuen Fai.

Evidence showing that the plaintiff is a Chinese customary trust (hereditary in nature)

15.  Ms Au argues that there is no or no sufficient evidence proving that the plaintiff is a Chinese customary hereditary trust.  Mr Siu submits that there is ample evidence showing this.  I agree with Mr Siu.

16.  The plaintiff has produced the following evidence:-

(1)  the witness statement of鄧福亮;

(2)  the witness statement of鄧世澤;

(3)  the witness statement of鄧世裕;

(4)  the witness statement of鄧國邦;

(5)  Block Crown Lease concerning the Land;

(6)  letter issued by the Yuen Long District Office dated 19 May 2016 (“the District Office’s Letter”), in which the Yuen Long District Office states that according to their record, the plaintiff is a recognized Tso/Tong under s  15 of the NTO;

(7)  letter issued by the Kam Tin Rural Committee dated 3 August 2016 (“the Rural Committee’s Letter”), in which the Kam Tin Rural Committee states that the plaintiff is the only Tin Hau Wui in Kat Hing Wai in Kam Tin, Yuen Long, and the plaintiff is a tong recognized under s 15 of the NTO ; and

(8)  the birth certificates of the 10 New Members.

17.  The evidence produced shows the following:-

(1)  The plaintiff was established in the Qing Dynasty and before 1905.  It was a religious tong set up for the purpose of worshipping Tin Hau.  The schedule to the Block Crown Lease shows that the plaintiff was registered as the owner of various pieces of land, including the Land, with Tang Yun Yan (司理鄧元恩) as its manager. It is the very first title document at the colonial age regarding the land in the New Territories.  Mr Siu submits and I agree that in the context of the plaintiff’s nature, the Block Crown Lease should also be read together with the District Office’s Letter and the Rural Committee’s Letter.  But for the hereditary nature of the plaintiff, the plaintiff could not have survived from a time before 1905 up to the present.

(2)  At the beginning, the plaintiff was established by 4 males within the Tang’s clan, ie 鄧緝明, 鄧禎祥, 鄧品重 and 鄧植棠.  Their male descendants, ie the male descendants of these 4 fongs, automatically became members of the plaintiff hereditarily without the need to make any application for membership or approval by anyone.

(3)  Tang Wai Hing was appointed as manager of the plaintiff on about 28 September 1962 by the Yuen Long District Land Officer, in place of Tang Yun Yan, deceased.

(4)  Tang Fuk Leung was appointed as manager of the plaintiff on about 7 February 1996 by the Yuen Long District Land Officer, in place of Tang Wai Hing, deceased.

(5)  The male descendants of the aforesaid 4 fongs became members of the plaintiff at the time of their births. The members of the plaintiff are the surviving male descendants of those 4 fongs of the plaintiff.

(6)  Members of the plaintiff know each others as family members.  Most of them live inside the Kat Hing Wai Walled Village, Kam Ting, New Territories. They would meet each other at Lunar New Year, Tin Hau Festival, Ching Ming Festival and Chung Yeung Festival.

(7)  Only the members of the plaintiff (not anyone else) would share among themselves the offerings after they have worshipped Tin Hau at Tin Hau Festival on the 23^rd day of the third lunar month.

(8)  In about 1995, the Government resumed portion of Lot 943 in DD 103 which was owned by the plaintiff.  A compensation of HK$2,485,080 was made by the Government to the plaintiff.  Tang Fuk Leung as manager of the plaintiff collected the compensation money and distributed it to the members of the plaintiff in the said 4 fongs. Only the surviving members of the plaintiff were entitled to share the compensation money.

(9)  Mr Siu submits that in about 1905, Tang Fuk Leung was not even born. But for the hereditary nature of the plaintiff, Tang Fuk Leung could not have become a member of the plaintiff and then being appointed as manager of the plaintiff with approval by the District Land Officer.  Further, but for the hereditary nature of the plaintiff, the Government would not have released the compensation money of HK$2,485,080 to Tang Fuk Leung for his distribution to the surviving members of the plaintiff.  I agree.

(10)  Apart from the members of the plaintiff, no male members of other clans of Tangs have ever claimed any entitlement to the compensation money or other benefits enjoyed by the plaintiff.

18.  Mr Siu submits that the approval and appointment of Tang Fuk Leung as manager of the plaintiff on about 7 February 1996 by the Yuen Long District Land Officer under s 15 of the NTO is evidence showing that the plaintiff is a Chinese customary hereditary trust.  Unless that approval is set aside, the 1^st defendant is not entitled to challenge the status of the plaintiff.  Mr Siu relies upon Tang Man Kit and Foo Tak Ching (suing as Managers of Wah Yan Mo Fan Heung (華人模範鄉)) v Hip Hing Timber Company Limited[4], in which Cheung JA said:-

“36. The hearing before Yuen J started in June 2000 but had to be adjourned due to the non-availability of a witness who had fallen sick. While the status of the Heung and the capacity of the plaintiffs might be a live issue when the hearing first commenced, by the time it was resumed in August 2000, the District Office had clearly recognised the Heung to be a T’ong under section 15 of the NTO. The section provides that –

‘Whenever any land is held from the Government under lease or other grant, agreement or licence in the name of a clan, family or t'ong, such clan, family or t'ong shall appoint a manager to represent it. Every such appointment shall be reported at the appropriate New Territories District Office of the Home Affairs Department, and the Secretary for Home Affairs on receiving such proof as he may require of such appointment shall, if he approves thereof, register the name of the said manager who shall, after giving such notices as may be prescribed, have full power to dispose of or in any way deal with the said land as if he were sole owner thereof, subject to the consent of the Secretary for Home Affairs, and shall be personally liable for the payment of all rents and charges and for the observance of all covenants and conditions in respect of the said land….’

37. The power to approve and register managers was vested by the NTO on the Land Officer, who was also the District Officer until 1982. The NTO was amended in 1993 to vest such power on the Director of Home Affairs who was subsequently re-named the Secretary for Home Affairs.

38. If the Heung is such a T’ong, then it must possess such a status, at least, from 30 December 1929 when it began to hold land as a result of the transfer from Mr. Wong Yuet Chiu and Mr. Lui acting in their personal capacity and as trustees for Chap Shing to themselves acting as trustees for the Heung.

39. Further if Mr. Chan and Mr. Tang were recognised as managers of the Heung from 1989 to 1999, then clearly they had the capacity to commence the action in 1990. The District Officer’s approval of the manager can take effect retrospectively from the time the managers were appointed by the members: Light Ocean Investments Ltd v Enway Development Ltd [1994] 3 HKC 31, per Litton JA.

40. The approval by the District Officer was given pursuant to a statutory provision. It was given not as a matter of formality but upon consideration of the law and facts. The fact that the District Officer had in earlier years, namely in 1972, took a different approach as to the status of the Heung becomes irrelevant once the approval was given in August 2000.

41. This decision must affect both the Heung, its managers and members on the one hand and also the Heung and the public on the other hand. The recognition of the status of the Heung as a section 15 T’ong must be in the nature of a recognition ‘in rem’.

42. In my view, until such time as the approval by the District Officer is set aside, it is not open to anyone, including the defendant in this case, to litigate on this issue again and challenge the status of the Heung and the plaintiffs.”

Followed by DHCJ Marlene Ng (as she then was) in Tang Kun Nin, Tony, Manager of Hung Shing Temple v Cheng Wai Fong and 2 Others[5].

19.  The aforesaid Court of Appeal’s decision is binding upon me.  Mr Siu’s point is unanswerable and I accept his submissions.

20.  There is no evidence from the 1^st defendant showing that the plaintiff is not a Chinese customary hereditary trust.

21.  Ms Au submits that there is no or no sufficient evidence showing that the plaintiff is a Chinese customary hereditary trust.  Ms Au argues that:-

(1)  There is no contemporaneous document proving the nature of the plaintiff, for example, a genealogy, a name list of the names of all members and records showing the distributions to each of the members, and a registration of newborn members.

(2)  The evidence on how and for what purpose the plaintiff was established is from Tang Fuk Leung, and Tang Fuk Leung’s evidence is only hearsay evidence.

(3)  That the approval and appointment given by the District Land Officer is not conclusive evidence on whether the plaintiff is a Chinese customary hereditary trust within the scope of s 15 of the NTO. 

22.  I am unable to accept these submissions.

(1)  Ms Au relies upon Kan Yam Yau v Kan Yook Tim[6], in which Cheung JA said:-

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

(2)  As said by the Court of Appeal in Kan Yam Yau, the history of an indigenous clan in the New Territories can be recorded in documents, but it can also be passed down from generation to generation by way of oral transmission.

(3)  In his witness statement, Tang Fuk Leung has set out the history and the purpose of the plaintiff, which was learnt by him from his grandfather, father and uncles.  Tang Fuk Leung has also said that there is no need to have a genealogy or a register of members, as the members of the plaintiff know each other very well.  In my view, Tang Fuk Leung’s evidence makes good sense and I have no reason to doubt his evidence.  See Tsang Kwong Kuen[7], [12].

(4)  While the history of an indigenous clan is passed down from generation to generation by way of oral transmission, when a member gives evidence on the history of the clan, naturally the evidence would be hearsay evidence.  Hearsay evidence is admissible evidence.  Unless there is anything casting doubt on the truthfulness or correctness of the hearsay evidence, the court may accept and act on the hearsay evidence.  Although Tsang Fuk Leung’s evidence on the history and the purpose of the plaintiff is hearsay evidence, there is nothing casting any doubt on this evidence.  I accept Tsang Fuk Leung’s evidence.  

(5)  In the light of the Court of Appeal’s decision in Tang Man Kit and Foo Tak Ching, it is not open to Ms Au to challenge the status of the plaintiff while the approval and appointment of Tang Fuk Leung as manager of the plaintiff given by the District Land Officer under s 15 of the NTO is in place. 

23.  In my judgment, the answer to the Question is clearly “Yes”.

The birthdates of the 10 New Members

24.  The birthdates of the 10 New Members are supported by the birth certificates of the 10 New Members.  There is no evidence from the 1^st defendant showing that any of these birthdates is incorrect or untrue.  I find that the 10 New Members were born on those birthdates respectively.

The plaintiff’s case against the 1^st defendant

25.  At the beginning of this hearing, Ms Au provides a new authority to the court and to Mr Siu, which is Man King Chuen v Hong Lok Yuen International School Association Ltd[8]. Ms Au submits that in the light of Man King Chuen, the principle in Leung Kuen Fai may not be a correct legal proposition.  With respect, I do not think Ms Au can derive any assistance from Man King Chuen.  In Man King Chuen, there is no comment on whether Leung Kuen Fai was correctly decided or not.  In Man King Chuen, the court simply allowed the 2^nd defendant therein to put in expert evidence on Chinese customary law, which would be relied upon by the 2^nd defendant to challenge the correctness of Leung Kuen Fai[9].  In this case, the 1^st defendant has never tried to seek leave to adduce any expert evidence to challenge the correctness of Leung Kuen Fai.  In the premises, there is no room for the 1^st defendant to argue that the principle in Leung Kuen Fai is not correct.

26.  In my view, even assuming that the 1^st defendant began to be in adverse possession of the Land since 1 January 1992, by reason of the births of the 10 New Members from 1992 to 2006, the 1^st defendant still cannot extinguish the title of the plaintiff to the Land at the time of the commencement of these proceedings.  The adverse possession claim made by the 1^st defendant must fail.

27.  As a result, the 1^st defendant in fact has no defence to the plaintiff’s claim.  At the same time, the 1^st defendant’s counterclaim must be dismissed.

28.  In the PTR, the parties have agreed that the mesne profits to be paid by the 1^st defendant to the plaintiff for the wrongful occupation of the Land should be HK$100 per year.  The plaintiff claims mesne profits of HK$600 for the 6 years before the commencement of these proceedings on 1 February 2013, and also for mesne profits after the commencement of these proceedings up to the present, which are the mesne profits for another 6 years.  The total of the mesne profits claimed by the plaintiff is HK$1,200.  I would allow this claim.

29.  I would enter judgment against the 1^st defendant and make the following order:-

(1)  the 1^st defendant do deliver vacant possession of the Land to the plaintiff within 56 days;

(2)  the 1^st defendant do demolish all the structures built by him or built under his order or permission on the Land or any portion thereof at his own costs and expenses within 56 days, failing which the plaintiff be at liberty to demolish all the said structures and the plaintiff’s costs of demolition shall be borne and indemnified by the 1^st defendant;

(3)  the 1^st defendant be restrained from entering into the Land whether by himself, his agents, servants, family members, directly or indirectly after the expiration of 56 days from the date of this decision;

(4)  the 1^st defendant do pay the plaintiff mesne profits of HK$1,200;

(5)  the 1^st defendant’s counterclaim be dismissed; and

(6)  there be liberty to apply for the purpose of carrying out this order.

The plaintiff’s case against the 2^nd defendant

30.  The 2^nd defendant has never put forward anything resisting the plaintiff’s claim.  I would enter judgment against the 2^nd defendant and order that the 2^nd defendant do deliver vacant possession of the Land to the plaintiff within 28 days.

Disposition

31.  I rule that the answer to the Question is “Yes”.

32.  I give judgment to the plaintiff and make the order set out in paragraphs 29 and 30 above.

33.  I have heard submissions on costs.  Costs should follow the event.  The complexity of these proceedings stems from the adverse possession claim raised by the 1^st defendant and nearly all the time in these proceedings is spent on this matter.  The 1^st defendant has failed on the adverse possession claim.  In these circumstances, it would be just and fair to order that 99% of the costs of these proceedings (including all costs reserved, if any) be paid by the 1^st defendant to the plaintiff, with a certificate for counsel.  The remaining 1% be paid by the 2^nd defendant to the plaintiff.  All costs are to be taxed if not agreed.  The 1^st defendant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

34.  I further direct that the trial dates from 20 March 2019 to 28 March 2019 be vacated.

35.  I thank counsel for the assistance rendered to the court.