WEALTH HILL INTERNATIONAL INVESTMENT LTD AND OTHERS v. WONG KWAN SIU

HCA828/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 828 OF 2008

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J U G E M E N T 

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1. This is the trial of two actions, namely, HCA 828 and 829 of 2008. They involve disputes over the title to 4 pieces of land situated in a remote area near Pat Heung, Yuen Long called Kap Lung Village (“KLV”). There are 2 parties on the plaintiff side, Wealth Hill Intl Investment Ltd (“WH”) and the managers of “Tsang Wan Shing Tong” (“TWST”). On the defendant side, there are Ms Wong Kwan Siu (“Wong”) and her mother, Madam Ng Kwai Hing (“Ng”).

2. TWST is a Tong which comes within the definition of s.15 of the New Territories Ordinance, Cap 97 (“Ordinance”) and is so registered under the Ordinance.

The disputed land

3. The 4 pieces of land in dispute are largely situated in Section A of Lot 1612 in Demarcation District 114 at Kap Lung (“1612 SA”).  1612 SA, with various pockets as exceptions, is registered under the ownership of TWST.  For identification purpose, the disputed land can be seen in exhibits P1 and D1. 

4. At the rear of KLV (western part of 1612 SA), there is a house, which is referred to as House 12.  The land on which House 12 is standing together with the area surrounding it (for convenience, they will be referred to collectively as “House 12”) constitute part of the disputed land.  There is a complication about this piece of land in that part of it is registered under the ownership of WH, namely, Kap Lung Lot 9 (“1^st Land”).  The 1^st Land is coloured yellow in P1.  The remainder of this piece of land, being part of 1612 SA, is registered under the name of the TWST (“2^nd Land”) and is coloured blue on P1.

5. P1 provides a rough and ready sketch of the land in question.  For an accurate sketch of the land on which House 12 is standing, one should refer to Attachment H of the joint expert report of Mr Wooten (“Report”).  The boundary of the land in question is coloured orange and has an area of 238.9 sq m. 

6. There is a row of houses, 11 in total, inside 1612 SA (“Houses”) and they have been referred to as the old village.  The third piece of disputed land is referred to as Kap Lung Lot 6 Section B (“3^rd Land”).  House 6 of the Houses (“House 6”) stands on the 3^rd Land and it is coloured green on P1.  It has an area of about 37 sq m.

7. The fourth piece of disputed land is the area at the north east corner of 1612 SA.  It has been identified in exhibit D1 with the boundary marked in yellow (“4^th Land”).  I should explain that the boundary appears to cut across some of the structures standing on the 4^th Land because those structures are straddling partly upon government land and there is no claim of adverse possession against the government in these proceedings.  Hence, it is accepted by Mr Chan, who appeared for the defendants, that this court is only concerned with the 4^th Land as marked on D1.  It is suggested in the Report that the 4^th Land has an area of 1,896 sq m.  However, it is not entirely clear what exactly is the boundary referred to in the Report and I treat that measurement as a guide only. 

8. The 1^st Land and 3^rd Land are registered under the ownership of WH, and the remainder of the disputed land is registered under the ownership of TWST. 

9. According to the land search record, the 1st and 3^rd Land belonged to “Tsang Kam Fat Tso” back in 1967.  In 1980, they were, together with other pieces of land, assigned to Tsang Yuet Hin and Tsang Kwai Hing (holding as tenants in common) as gifts.  In 2006, they were sold to Tsang Hin Keung (“THK”) (one of the witnesses in this case) for HK$1 million.  In the next year, the land was sold to WH, which has been described by THK as his company, for the same amount of money.

10. The 1^st and 2^nd Land are the subject matters of the plaintiffs’ claims in HCA 828/08 against Wong.  The 3^rd Land is the subject matter of Wong’s counterclaim against WH in the same action.  In HCA 829/08, there is a contest between TWST and Ng on the ownership of the 4^th Land.

11. The above is not in dispute.  The factual disputes in these actions concern primarily (a) the claims by Wong and Ng that they have been in adverse possession of the disputed land for over 20 years, thereby having gained a squatter’s title to the same prior to the commencement of these actions in 2008 and (b) the continuity of membership of TWST.

12. Before I deal with the occupation of the disputed land, I shall set the scene with a brief history of KLV and the TWST, which is uncontroversial save indicated otherwise. 

KLV and the TWST

13. KLV was founded about 250 years ago by people surnamed Tsang.  The Tsang clan came from the Mainland and settled at a place called Tsuen Lung at Tsuen Wan near Tai Mo Shan.  A branch of the Tsang clan later left Tsuen Lung and moved to Kap Lung and KLV was founded.  Amongst the pioneers who settled at Kap Lung was a man by the name of Tsang Wan Shing (“TWS”). 

14. KLV was (and is) situated at the foot of Tai Mo Shan and within the Tai Lam Country Park.  The soil there was rich and the supply of water was abundant.  The Tsangs began to cultivate and live on the land until the 1950s when the water supply was diverted to fill the Tai Lam Chung Reservoir which was built to meet the demand of the exploding population of Hong Kong.  Gradually, the Tsangs moved out of KLV, many of them moved overseas.  In the 1970s (if not earlier), there was no more people named Tsang living at KLV.  Apart from the shortage of water, the remote location of KLV was a reason for the Tsangs to leave.  Many of them moved to another village called Shui Tsan Tin which was 1 hour’s walk from KLV. 

15. As the Tsangs were leaving, some of them sold their properties at KLV and other people began to move into KLV. 

16. TWST was set up for the descendants of TWS to pay respect to him.  The membership of TWST is restricted to the direct male descendants of TWS. 

17. It is convenient to mention here another Tong by the name of “Tsang Ng Kwai Tong” (“NKT”).  The relevance of NKT will become clear below.  It appears to be another Tong set up to commemorate another person of the Tsang clan.  There is no evidence that it has any connection with KLV.  However, the evidence about NKT is very sketchy.  It is separate from TWST.  There are 4 managers of NKT and those people are also the managers of the TWST.  It has been suggested that the TWST and NWT have the same members and they hold the properties belonging to both Tongs (these 2 points are controversial). 

The issues

18. It should be made clear at the outset that the plaintiffs (for convenience, I refer to the parties collectively save where it is important to distinguish them) do not dispute the defendants’ evidence of occupation in respect of the 3^rd and 4^th Land.  There is a dispute concerning when House 12 was built. 

19. The primary case of the plaintiffs is that there is an agreement (“Agreement”) governing the occupation of House 12 (1^st and 2^nd Land) by Wong and that Ng had been paying rent for the occupation of the 4^th Land until 2003.  For those reasons, there can be no adverse possession of the land in question.

20. As a fall back, the plaintiffs say that, as a matter of law, the continuity of the membership of TWST would defeat any adverse possession claim.  This argument does not apply to the 1^st and 3^rd Land because they never belonged to TWST. 

21. In respect of the 3^rd Land, the only argument advanced concerns the mental element of adverse possession – the intention to possess. 

22. Three witnesses were called by the plaintiffs – Mr Chow Chi Keung (“Chow”), THK and Mr Tsang Kwok Hung (“TKH”).  Four witnesses were called by the defendants – Mr Lam Yui Tin (“Lam”), Wong, her sister Ms Wong Kwan Yau (“WKY”) and Ng.

Occupation of the disputed land

23. I should start with the evidence concerning the move to KLV by Wong’s family.  In 1970, Wong’s maternal grandfather started living in House 8 of KLV, which was amongst the Houses.  There is no dispute that House 8 belonged to one of the Tsangs (the family of Tsang Ming) and that rent had been paid for occupying it.  That property was sold in December 2009 to WH, who is the current owner. 

4^th Land

24. In 1972, Ng also moved to KLV to help her father in rearing pigs there.  According to Wong, before House 12 was built there was a pigsty on that piece of land (“Pigsty”).  In 1972, the pigsty was purchased by Ng from a villager by the name of Yu.  Ng’s evidence is that in the 1970’s all the Tsangs had already left KLV.  There were only a few families living at the Houses.  Most of the houses and the land were unattended.  In about 1973, Ng and her family began to develop the hillside where the 4^th Land now stands.  Two houses were built there (9A and 12A) and a mesh wire fence was erected around the land. 

25. At the end of 1974, Ng moved into House 9A.  Her husband and 4 children joined her in about 1979.  In about 1976, Ng’s parents moved into House 12A.  They passed away in about 1988, and House 12A then became the residence of one of her daughters.

26. Two more houses were built on the 4^th Land (10A and 11A) in about 1982 to accommodate Ng’s grown up children.  A cowshed was also built and the fence was expanded. 

27. Another 2 houses were built in about 1991 (13A and 14A) and the fence was further expanded.

28. Apart from building houses and the cowshed, Ng said that she and her family had also built a road to improve the access to the 4^th Land.  350 metres of road in total had been built. 

29. As indicated above, the occupation by Ng and her family over the 4^th Land is not disputed by TWST.  Ng’s evidence is supported by her two daughters, some documentary evidence and the Report.  I accept such evidence.  Although the evidence lacks precision as to when and exactly which part of the 4^th Land was fenced off, given that Mr Sherry, who appeared for the plaintiffs, did not take any point in that regard, I hold on the balance of probability that the 4^th Land had been occupied by Ng for at least 20 years prior to the commence of HCA 829/08.  I shall deal with the controversial evidence later. 

1^st and 2^nd Land

30. For obvious reason, the 1^st and the 2^nd Land should be dealt with together.  Wong’s evidence is that she went to live at KLV in about 1977 to help her grandfather to rear pigs.  The Pigsty was registered by the Government’s Squatter Control Office (“SCO”) in 1977 as “KLW 13”.  There is a letter from the SCO confirming that.  Wong said that she had built a small house (KWL 14) next to the Pigsty and she would be staying there when piglets were expected.  However, according to a letter from the SCO dated 31 March 2010, in 1977 there were 2 structures on the 1^st Land, being KWL 13 and 14.  One of them was a pigsty and the other a chicken shed.  There was no record of squatter occupation of those structures. 

31. In 1980, alteration work was carried out by Wong’s grandfather at the Pigsty to convert it into living quarters, which became House 12 and the residence of Wong and her family.  The area surrounding House 12 has been fenced off but it is unclear as to when fencing was first erected.  The evidence suggests that the fencing was expanded as time passed. 

32. Wong’s evidence is supported by that of WKY and Lam.  In addition, there is a letter from PCCW showing that telephone service has been provided for House 12 since June 1987.  Further, Wong’s evidence is supported by the Report.  In particular, according to the Report, “the presently sized building appears to have been present since at least 1989”. 

33. The evidence of THK and TKH is that House 12 was only built in about 1997.  Admittedly, neither of them ever lived in KLV.  In light of the Report, I have no difficulty accepting Wong’s evidence.  I hold that the 1st and 2^nd Land had been under her occupation for at least 20 years prior to the commencement of HCA 828/08.

3^rd Land

34. Wong’s evidence is that House 6 has been occupied by her since 1983.  It was originally occupied by one Mr Kwok.  Kwok fell ill and was hospitalised.  Before he went into hospital, he passed the key to his house to Wong for safekeeping.  Kwok passed away in 1981.  After the house was left vacant for some time, Wong began to use it as living quarters for her family and a storage. 

35. After taking over House 6, various innovation and maintenance works had been carried out over it by Wong. 

36. Wong’s evidence is supported by WKY and Lam. Further, there are documents showing that WKY was the holder of an electricity account in respect of House 6 from March 1983 to April 1998.  The evidence is that the account was held on behalf of Wong. 

37. The above is not disputed by the plaintiffs.  In the premises, I accept that House 6 had been under Wong’s occupation for at least 20 years prior to the filing of the Counterclaim in HCA 828/08. 

Alleged tenancy over the 4^th Land

38. I shall begin by referring to the evidence of THK.  He is 56 years old.  He is an indigenous member of KLV, although he has never lived there (he resides in Shui Tsan Tin Village).  He was the village representative of KLV from 1991 to 2003 and from 2007 until now.  However, his knowledge of KLV is sketchy at best.  He claims to be a direct descendent of TWS.  He, together with 3 other people, became the managers of TWST in 2004, taking over from the previous manager Tsang Ming. 

39. THK, via his company, is in the business of providing columbarium.  I take judicial notice of the fact that this is potentially a lucrative business.  With the use of WH, 14 properties have been purchased by THK in KLV since 2007.  THK denied that the properties are to be used for building a columbarium. 

40. There appears to be complete lack of interest in KLV or TWST on the part of THK until recent years.  Most notably, there is an ancestral hall of TWST in KLV.  It has fallen into disrepair since the 1960’s such that it could no longer be used.  No effort was made to repair it despite THK’s position as KLV’s representative and manager of TWST.  Due to the lack of a useable ancestral hall, an important ceremony – lighting the lantern – has not been performed for many years.  Traditionally, this ceremony was required to be performed for recognising new members of TWST. 

41. Further, TWST’s case is that no rent had been paid by Ng since 2003.  Yet, THK has done nothing about the situation despite having become one of the managers of TWST since 2004. 

42. To complete the picture, the high speed railway which will connect Hong Kong with the national high speed rail network in Guangzhou will run underneath KLV.  It is not difficult to see the potential for compensation claim against the government. 

43. These matters clearly show that THK has a financial interest in the outcome of these proceedings which goes beyond the 1^st and 3^rd Land.  Quite apart from his credibility as a witness (see below), I must evaluate THK’s evidence with his financial interest in mind. 

44. TWST’s evidence of the alleged tenancy rests almost solely on (a) a cash book of TWST and NKT (“Cash Book”) in which it had been recorded certain payments of field rent (田租) from April 1987 to June 2003 and (b) a savings passbook of TWST and NKT which contains credit entries that match the payments of field rent as recorded in the Cash Book. None of those documents suggests who paid the rent or for which field it was paid.  Indeed, on the face of the evidence, the field rent could have been paid for a property owned by NKT or another property of TWST (there is evidence suggesting that NKT owned at least a landed property and TWST owned other pieces of land [HCA 829 / Bundle 2 / p 45-46]).  In contrast, there is a reference in the Cash Book of rent paid for a house by a person named Lam. 

45. THK has no personal knowledge about the alleged tenancy.  Whatever he knew came from Tsang Ming from whom he took over as manager of TWST.  Whatever he had learned from Tsang Ming is quite vague.  THK is unable to tell which particular part of 1612 SA was let to Ng or her family.  I am certainly not prepared to accept, without more, such hearsay evidence given its quality and THK’s financial interest in these matters. Further, viewed objectively, I cannot understand why THK did not take any action to chase Ng for the rent after he took over as manager if he had indeed been told that she was occupying her land under a tenancy granted by TWST.  I have not lost sight of the point made by Mr Sherry that there was a change of manager in 2003, although it took effect in 2004.  I can accept the lack of interest or diligence of 1 manager but there were 4. 

46. As will be seen below, I also take the view that THK is a poor witness.

47. However, there is an episode about the payment of HK$3,000 by Wong to TKH on 22 June 2003.  TWST maintains that it was a rental payment made on behalf of Ng under the alleged tenancy.  Wong denied that and said that it was the rent for House 8. 

48. First of all, the payment of HK$3,000 matched the field rent which was paid in 2002 as recorded in the Cash Book.  Further, there was a payment of HK$3,000 into the bank account of TWST and NKT on the next day.  This gives considerable support to TWST’s case by providing the link between the rental payments received over the years to the 4^th Land. 

49. On the other hand, it is not disputed that Wong did pay rent for House 8.  Such rent was originally paid to TKH’s grandmother and later to his father (Tsang Ming).  On the occasion of 22 June 2003, TKH received the money on behalf of his father.  He had no personal knowledge as to what the money was for.  Further, the record made by TKH stated that the money was rental payment for a house (租屋錢) (unfortunately, this point was not put to TKH in cross-examination). 

50. Wong’s evidence in explaining the purpose of the HK$3,000 becomes critical.  Wong did not impress me as a good witness.  I make due allowance for the fact that she was nervous in the witness box, which was not uncommon for ordinary people.  I am particularly troubled by her refusal to answer questions in cross-examination on whether she would have been prepared to pay rent for House 6 if she had been asked to do so.  When she was taxed on the subject matter of the Agreement (see below), her repetitive answers suggested that she was adhering to a script.  Most importantly (for the present purpose), her evidence concerning the occupation of House 8 in 2003 by her grown up sons and why she had to pay the rent for House 8 for her sons is unconvincing. 

51. I am not prepared to accept Wong’s explanation for the payment of the HK$3,000.  In the face of the TWST’s evidence (supported by the payment of the HK$3,000), I do not accept Ng’s denial of ever paying rent for the 4^th Land. 

52. Finally, there is 1 piece of circumstantial evidence in favour of TWST’s case.  The 4^th Land is not far from House 8.  If Tsang Ming was collecting rent for his property, why would he overlook the occupation of the 4^th Land?  It appears that he was living in Shui Tsan Tin Village, which was not far away from 1612 SA.  He was the manager of TWST.  The Cash Book and the bank document suggest that he was discharging his duties to TWST with reasonable diligence. 

53. I must do the best I can notwithstanding the paucity of evidence.  On a balance of probability, I find for TWST in respect of the tenancy which must have existed by reason of the rental payments. Consequently, there can be no adverse possession over the 4^th Land.

The Agreement

54. The plaintiffs’ case is that on 14 March 1998, Tsang Yuet Hin (one of the owners of the 1^st Land at the time – see para 9 above) went with his friend (Chow) to see Wong at the Fairview Park flea market where she had a stall.  Tsang Yuet Hin went to see Wong with the Agreement intending to ask her to sign it so as to acknowledge that the use of the land was subject to the rights of the owners.  The Agreement was in the following terms :

「本人黃群笑於一九九七年八月未得曾桂卿及曾月憲兩位業主許可，在甲龍村九號屋地，自作自為建了壹間臨時屋，將來兩位業主，如果出售或作其他用[途]，我黃群笑無條件交還給兩位業主，也不得向兩位索償，同時在我不用此臨時屋之時，也不得轉讓給其他人，特此聲明。」

55. There is no dispute that Wong signed the Agreement on that occasion.  Her case is that she understood that the land referred to was the land in front of House 9 of the Houses on which she had recently built a kitchen, a toilet and a storage (“Structure”).  Tsang Yuet Hin confirmed her understanding.  Further, she was under pressure to sign the Agreement because Chow who worked for the Squatter Control Unit had threatened to demolish the Structure.  Chow and Tsang Yuet Hin refused to leave her alone and their presence obstructed her business.  It was in those circumstances that she signed the Agreement.

56. Chow’s evidence was confined to denying any impropriety at the meeting.  He did not take part in the discussions and did not even know where Wong was residing at the time.  

57. The reference to (甲龍村九號屋地) is ambiguous.  It can mean, as WH contends, Kap Lung Lot 9 (1^st Land) or the land at House 9, which is Wong’s case.  Notwithstanding the ambiguity, I do not believe that those words referred to the land in front of House 9 on which the Structure was built for the following reasons:

(i)  The land in front of House 9 was (and is) part of 1612 SA and belonged to TWST.  The subject matter of the Agreement was plainly a piece of land belonging to Tsang Yuet Hin and it could only be the 1^st Land;

(ii)  The reference to a temporary house (臨時屋) was not consistent with the Structure;

(iii)   Further, the Agreement referred to a promise not to sell the temporary house.  It is difficult to see that the Structure could be sold. 

58. I have not overlooked the fact that the Agreement referred to the temporary house having been built in 1997 and that according to my finding above House 12 was built long before 1997.  I do not believe that Tsang Yuet Hin had personal knowledge as to when House 12 was built.  In other words, it was a piece of information he learned from someone.  It appears from the evidence that he had emigrated to the UK as long ago as 1980 [828/4/227].

59. As stated above, I am not impressed by the evidence of Wong.  In the premises, the plaintiffs’ case in respect of the Agreement has been made out.  However, this is not the end of the matter.

60. I need to determine if Wong had been in adverse possession of House 12 for 20 years prior to the signing of the Agreement on 14 March 1998 (there is no dispute that the applicable period of adverse possession in this case is 20 years).  If that is the case, contrary to the submission of Mr Sherry, the title of the paper owners would have been extinguished.  Further, the Agreement would not assist the owners whose title had already been extinguished – see s.17 of Limitation Ordinance, Cap 347; Land Law in Hong Kong, 3^rd edn, p 247, 278-9; Saunders v Saunders (1881) 19 Ch D 373.

61. For completeness, I agree with Mr Chan that had the paper owners’ titles been extinguished at the time of the Agreement, then no consideration had been given in return for Wong’s promises under the same.

Adverse possession of House 12

62. There is no dispute on the law of adverse possession.  There is a good summary of the applicable principles in Lau Wing Hong & Ors v Wong Wor Hung & Anr [2006] 4 HKLRD 671 at 684I to 687H.  I would like to refer to the two elements for the legal possession of land at 685I to 686B :

“30. There are now two elements for the legal possession of land: (1) a sufficient degree of physical custody and control (factual possession) and (2) an intention to exercise such custody and control on one’s own behalf and for one’s own benefit (intention to possess). Without the requisite intention, which is usually a matter of inference, in law there can be no possession. That intention will be usually deduced from the physical acts themselves, although there must be the two separate but conjunctive elements to constitute legal possession.

31. The House of Lords held that the necessary intention is only an intention to possess the land; an intention to own the land is not required: Ocean Estates Ltd v Pinder [1969] 2 AC 19 at p.24 (PC); JA Pye (Oxford) Ltd & Another v Graham & Another [2003] 1 AC 419 at p.438 per Lord Browne-Wilkinson, at p.446 per Lord Hope of Craighead, at p.448 per Lord Hutton.

32. Lord Hope emphasised at p.446C:

But it is reasonably clear that the animus which is required is the intent to exercise exclusive control … The important point for present purposes is that it is not necessary to show that there was a deliberate intention to exclude the paper owner or the registered proprietor.”

63. Further, I bear in mind Mr Sherry’s submission that a person who asserts adverse possession assumes a heavy onus of proof: see Powell v McFarlane and Anr (1979) 38 P&CR 452.

64. Following from the findings made above, what needs to be resolved are (a) when possession of the land in question began and (b) whether the requisite intention to possess has been shown.

65. As stated in para 30 above, Wong began to work on the land in question in 1977.  I believe that the “small house” she built was the chicken shed.  I have no difficulty accepting that her occupation of the land started in 1977.

66. The building of a fence on the land is clear evidence that the person in occupation intended to and was exercising a high degree of control over it to the exclusion of others.  Although, as noted in para 31 above, the evidence is unclear on when fencing was first erected, I infer that the requisite intention was present from the beginning given that the pigsty was purchased by Wong’s mother and she built a shed next to it.  Further, amongst the photographs of House 12 which have been adduced in evidence, there is one showing that a dog was kept there.  Obviously, having a dog at the house helped to keep strangers away. 

67. In the premises, I infer that Wong had the requisite intention to possess the land, and the case for adverse possession has been made out.

68. I have not overlooked Mr Sherry’s argument based on Wong’s signing of the Agreement.  It was said that such action negated an intention to possess the land.  However, despite Chow’s evidence, I believe that Wong would not have signed the Agreement in the absence of some degree of pressure (Mr Chan did not suggest that the Agreement was vitiated by reason of any pressure exerted on Wong).  In this regard, I prefer Wong’s evidence over that of Chow.  Her evidence concerning the incident of the 14 March 1998 was firm.  On the other hand, Chow must have been asked to go along for a purpose. His evidence that he took no part in the discussion is somewhat unreal.  Wong appears to be a timid person and it probably would not have taken much to pressurise her into signing the Agreement. 

69. By reason of Wong’s adverse possession over the 1^st and 2^nd Land, WH’s claim in respect of the 1^st Land must fail.  Before I deal with TWST’s alternative case concerning the 2^nd Land, I shall determine the ownership of the 3^rd Land.

3^rd Land

70. As indicated above, the only issue is the intention on the part of Wong to possess House 6.  The answer can only be an affirmative one.  She took possession of the house when the previous occupier had passed away and no one had come forward to claim it.  She had expended money in renovating and maintaining the house.  I have no difficulty drawing the inference that Wong had the intention to possess House 6.

71. In the premises, Wong’s counterclaim in respect of the 3^rd Land has been established. 

Members of TWST

72. It is now well established that in respect of any land belonging to a Tong, the arrival of a new born member can defeat a claim of adverse possession.  The law has been succinctly set out in Tsang Wing Kit Eric v The Occupier(s), unrep., HCA 1154/05 at p 7L to 8E :

“12. If the Defendants are successful in proving adverse possession, the Plaintiff relies on its own peculiar feature as a t’ong and the ancient Chinese institution of ancestral land-holding in the New Territories which is preserved by section 13 of the New Territories Ordinance, Cap 97. In essence, land held by a t’ong or tso is inalienable, indivisible and perpetual for the benefit of existing and future members of the t’ong or tso. Hence, it was held in Leung Kuen Fai and Tang Kwong Yu (or U) T’ong or Tang Kwong Yu Tso [2002] 2 HKLRD that whenever a new member of the t’ong or tso is born, a new equitable interest in the t’ong or tso is created and a new limitation period under sections 7(2) and 22 starts to run. The new limitation period will not expire until six years after the new member ceases to be an infant, i.e. twenty-four years since birth of the youngest new member. Leung Kuen Fai was approved by the Court of Appeal in Wong Shing Chau v To Kwok Keung [2008] 5 HKC 372. Mr Shum has no dispute about these principles. It is also common ground that the burden is on the Plaintiff to prove that new equitable interest was created by birth of such new member(s) and such member(s) is/are still living. If these are proved, the burden will be shifted to the Defendants to prove that the right of that new member(s) to take action has been time-barred. …”

73. TWST’s case is based almost entirely upon the evidence of THK who has produced a family tree (“FT”) compiled by him purporting to show the continuous lineage of TWS.  In particular, according to that document, 3 new members of TWST were born in respectively 1988, 2006 and 2008.  In light of that evidence, Counsel have helpfully agreed that the only issue here is whether it has been proved that the alleged membership of TWST is made up of direct descendants of TWS, and therefore legitimate members of TWST.  There is no dispute that the burden of proof rests with TWST.

74. Let me say at the outset that I am not satisfied on the evidence that any of the alleged members is a direct descendant of TWS. It was put in the course of cross-examination of THK that members of NKT were being passed off as members of TWST.  The evidence shows that there may be substance in the allegation.

75. First and foremost, the paucity of evidence adduced by TWST is very surprising.  It appears from the FT that there are many existing members of TWST and yet none of them, apart from THK, has been called to prove that they are direct descendants of TWS.  In the case of TKH, his witness statement contained no evidence in this regard.  It is very difficult to imagine that with so many members and families, there is no original family record or possession of any sort which can shed some light on the members’ lineage.

76. Secondly, the case of TWST as stated in its answers to interrogatories is quite inconsistent with THK’s evidence.  It was stated that “TSANG WAN SHING NG KWAI TONG (and [TWST] refer to the same tso tong, so that their members are common”.  In fact, TWST and NKT are different Tongs.  I shall come back to the common membership point later.  It was also stated that ceremonies had been held to accept new members.  In fact, there had been no such ceremony since the 1960’s.  Finally, it was stated that there are records of pedigree of the clan of TWS.  According to the evidence of THK, there is none.  There was an original record of pedigree but it was lost before the last world war. 

77. Thirdly, I cannot accept the suggestion by THK that the membership of TWST and NKT are common.  Such proposition conflicts with the evidence that only direct male descendants of TWS can become a member of TWST.  Mr Sherry suggested that Tsang Ng Kwai could be a direct descendant of TWS and hence explains the common membership.  However, as Mr Chan pointed out, that answer cannot apply given the evidence that TWS had 4 sons. 

78. THK is not a good witness at all.  There was an important inconsistency in his evidence about the requirement that members of TWST must be direct descendants of TWS.  At the same time, he said that descendants of TWS’s brother could also become a member of TWST.  I do not believe that he misunderstood the questions.  Those questions were asked no less than 3 times to ensure that there was no misunderstanding.  In the course of answering those questions, THK said twice that descendants of TWS’s brother were allowed to receive or inherit the properties of TWST.  I believe that such answer (a) revealed THK’s interest in the assets of TWST and (b) lends support to the allegation that outsiders are trying to pass off as members of TWST.  Further, after considerable time had been spent on this subject, THK then said that TWS had no brother.  If that is true, it is surprising that THK did not say so at the outset. 

79. I accept Mr Chan’s submission that there is another piece of evidence which lends certain credence to the passing off allegation.  The inscription on the ancestral tomb which has been identified by THK as belonging to his branch suggests that his line of lineage is not the direct descendants of the founder of the clan (開宗) because his great grandfather, Tsang Wai Yuk, was described as a nephew of the founder.  Whilst there is no evidence as to who the founder was, it is surprising that there is no evidence of any tomb of TWS to which THK and his family pay their respect.

80. Another example of THK’s inconsistency in his evidence is that he said in cross-examination that there were several previous generations which were not recorded on the FT.  Later, in re-examination he said that Tsang Wai Yuk, the head of his branch as recorded in the FT, was the son of TWS.  It is plain to me that this witness was prepared to change his evidence as it suited him. 

81. I do not accept that the FT is a reliable record.  In light of the above, I must not accept the evidence without proper scrutiny.  Admittedly, the FT was compiled based on what THK had learned from previous managers of the TWST and it is incomplete.  The evidence suggests that there was no break in the management of TWST since at least the 1960’s.  It is difficult to believe that no record had been kept for the members of TWST if there were such members (there is no evidence whether the managers were or were not members of TWST).  I reject THK’s evidence that the membership was updated in an informal manner when members met during the Spring and Autumn gathering for the worship of ancestors and on those occasions any new born members would be announced.  Given the interest of new members in the assets of the TWST, I cannot see why no record was kept of the same.  I do not believe that THK started to compile the FT in 1993 or 1994 given his lack of interest in TWST and he was not even a manager of TWST at the time.  More likely than not, the document was compiled to meet the need of these proceedings. 

82. Finally, I give no weight to TKH’s claim that he is a direct descendant of TWS.  There is no support for the assertion. Surprisingly, when he was asked about his family tomb which he no doubt visited on many occasions, he said that he took no notice of what had been inscribed on the tomb.

83. In the premises, I find that TWST’s title to the 2^nd Land has been extinguished by the adverse possession of the same by Wong.

Conclusions

84. In respect of HCA 828/08, I dismiss the plaintiffs’ action (as discussed during the final submissions of the plaintiffs, there is no need for any relief in respect of WH’s claim in connection with House 5 of the Houses). 

85. I grant a declaration in respect of the 1^st and 2^nd Land in favour of Wong to the effect that she has since 1977 been in adverse possession of the same as identified in Attachment H to the Report with the boundary marked orange and has obtained a possessory title in and over the same.

86. I grant a further declaration in favour of Wong in respect of House 6 to the effect that she has since 1983 been in adverse possession of Kap Lung Lot 6 Section B and has obtained a possessory title in and over the same. 

87. The costs of the action and the counterclaim shall be borne by the plaintiffs save that, for the reasons stated below, the costs of the trial bundles shall be borne by the plaintiffs’ solicitors personally.  Wong’s own costs be taxed in accordance with legal aid regulations. 

88. In respect of HCA 829/08, I grant an order for possession in favour of TWST in respect of the 4^th Land as identified in exhibit D1 with the boundary marked yellow.  I order that Ng shall demolish and remove all existing structures and personal properties on the 4^th Land within 60 days hereof.

89. I should note that there is some evidence before the court of inappropriate action on the part of the Tsangs in trying to recover possession of the disputed land.  No such action will be tolerated by the court.  I grant liberty to apply in this action.

90. Outstanding rent of HK$15,000 shall be paid by Ng to TWST for the years 2004 to 2008.  Mesne profits at the rate of HK$3,000 per annum shall be paid by Ng to TWST from 2009 until the delivery of vacate possession of the 4^th Land to TWST.

91. Interest shall be paid on the said rent and mesne profits at judgment rates from the date of writ until payment.

92. Ng’s counterclaim is dismissed.

93. The costs of the action and the counterclaim be borne by Ng save that, for the reasons stated below, the costs of the trial bundles shall be borne by the plaintiffs’ solicitors personally.  Ng’s own costs be taxed in accordance with legal aid regulations.

94. Last but not least, I believe that the Yuen Long District Office has an interest in the findings which this court has made in respect of TWST and a copy of this judgement shall be sent to the same.

Trial bundles

95. The trial bundles are in a state of shambles. In each action, there are two sets of bundles because both sides had submitted their bundles.  It is plain that the bundles produced by the plaintiffs were prepared by untrained staff.  No proper effort had been made by the professionals to examine what had been produced.  The papers are disorganised, there are missing pages, missing pagination and obscured pagination. 

96. Whilst I am prepared to accept that the defendants felt that they had to produce their own bundles because of inadequacies in the bundles produced by the plaintiffs and the lack of response from the plaintiffs’ solicitors to their complaints, the missing papers could have been inserted into the bundles produced by the plaintiffs.  The existence of 2 sets of bundles is quite unhelpful and has resulted in much time being wasted in tracking down the relevant papers. 

97. The only way to discourage such poor standard is to order that the costs of the trial bundles be borne by the plaintiffs’ solicitors and I do so.