YUEN YICK HANG ALISTON v. YUEN CHI KWONG AND ANOTHER

HCMP 163/2024

[2026] HKCFI 3930

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 163 OF 2024

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J U D G M E N T

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A. Introduction

1.  Yuen Wun U Tso (袁煥宇祖) (“YWUT”) and Yun Tsun Yau Tso (袁全有祖) (“YTYT”) (collectively the “Two Tsos”) are ancestral tsos constituted under Chinese customary law to venerate the same ancestor, namely Yun Wun U (袁煥宇) who was also known as Yuen Tsun Yau (袁全有). 

2.  These proceedings concern the membership of the Two Tsos. 

3.  By originating summons herein dated 29 January 2024, the Applicant, pursuant to Order 85, rule 2, asks the court to determine the following questions and grant declaratory relief in respect thereof:-

Question 1:

(1)  Whether the family tree annexed to the originating summons (the “Applicant’s Family Tree”)[1] is the correct family tree of YWUT? 

(2)  If no, what should be the correct family tree of YWUT? 

Question 2:

(1)  Whether the 10 living individuals (the “10 Individuals”) identified in the Applicant’s Family Tree are all the present members of YWUT?

(2)  If no, who are the present members of YWUT? 

Question 3:

(1)  Whether the Applicant’s Family Tree is the correct family tree of YTYT? 

(2)  If no, what should be the correct family tree of YTYT? 

Question 4:

(1)  Whether the 10 Individuals identified in the Applicant’s Family Tree are all the present members of YTYT? 

(2)  If no, who are the present members of YTYT? 

Question 5:

Whether the resolution for appointment of the Applicant and the 1^st Respondent as managers of YWUT was validly passed at the members’ meeting on 18 August 2019? 

Question 6:

Whether the resolution for appointment of the Applicant and the 1^st Respondent as managers of YTYT was validly passed at the members’ meeting on 18 August 2019? 

4.  It appears that the interests of the 10 Individuals (who are effectively represented by Applicant and the 1^st Respondent[2]) are, in reality, averse to the interests of the 2^nd Respondent and the 47 persons he represents[3].  However, the present proceedings are not adversarial in nature.  As Chu JA (as Chu VP then was) explained in Re Estate of Chiu Keung [2020] 3 HKLRD 779 at para 60:-

“In the context of an O.85 application, it has to be borne in mind that the court is essentially engaged in determining what ought to be done in the best interests of the trust estate and not in determining the rights of adversarial parties: Marley v Mutual Security Merchant Bank & Trust Ltd at p.201.”

B.  Material Background

5.  Yun Wun U (袁煥宇)[4] belonged to the 15^th generation of the wider Yuan clan (袁氏).  The top ancestor was 袁觀德. 

6.  Around 600 years ago, members of the Yuan clan settled in the area that is now known as Luohu district, Shenzhen.  

7.  Luohu Village (羅湖村) was a principal area where members of the Yuan clan resided. 

8.  Luohu Village is on the northern side of the Shenzhen River.  It is in the Mainland.  However, historically, lands associated with the villagers of Luohu Village (ie the lands of the Yuan clan) lay on both sides of the Shenzhen River (including the northern district of the New Territories). 

9.  The Two Tsos have been holding various lands in the New Territories. 

10.  As accepted by the Applicant, in around 1985, the Village Committee of Luohu Village (深圳市羅湖區羅湖村民委員會) incorporated a Mainland company, namely Shenzhen Luohu Runan Industrial Limited Company (深圳市羅湖汝南實業股份有限公司) (the “Luohu Company”), to control and manage the lands of the Yuan clan in Shenzhen and in Hong Kong (including those of the Two Tsos).  Before the Luohu Company was set up, the entities that exercised the functions of the Luohu Company were (i) 羅湖生產隊 (the “Luohu Production Team”); and (ii) 寶安縣深圳鎮羅湖大隊 (the “Luohu Brigade”)[5].  In other words, these entities were the “predecessors” of the Luohu Company. 

11.  According to Mr Yuan Yan Qiang (袁燕強) (“YYQ”) (who testified on behalf of the 2^nd Respondent), since the 1950s, the Shenzhen Foreign Affairs Office (深圳外事辦) and subsequently the Public Security Bureau of Shenzhen Municipality (深圳公安局) had issued “cross border farming permits” to recognized members of the Luohu Village in Shenzhen, enabling them to travel to Hong Kong to cultivate lands in the New Territories, and the board of directors of the Luohu Company (or its predecessors, ie the Luohu Production Team and the Luohu Brigade) had to certify that the individual was a member of the Yuan clan of Luohu Village.  Their stamps had to be imprinted on the individual’s application form. 

12.  According to Madam Deng Wei Ping (鄧偉平) (“DWP”) (who was married to 袁東風[6] and who has been closely involved in the affairs of the Luohu Company and its predecessors):-

(1)  On 16 November 2012, the Shenzhen Luohu District Collectivized Assets Management Office (深圳羅湖區集體資產管理辦公室) issued a document (no 8 of 2012) recognizing that the lands that were used to belong to the villagers of Luohu Village in both Shenzhen and Hong Kong had become vested in the Luohu Company and its predecessors (the “November 2012 Document”)[7]. 

(2)  On 18 May 1975, the Guangdong Provincial Revolutionary Committee (External Office) issued a document named “廣東省革命委員會外事辦公室關於羅湖生產隊在香港新界兩塊土地的處理意見書”.  It appears that the Mainland Government recognized that the Luohu Company’s predecessor was the lawful owner of the lands in Hong Kong that were used to be owed by the villagers of Luohu Village, and these lands were held on their behalf. 

(3)  Before Mr Yuen Kwok Yan (袁國仁) (“YKY”), who was the Two Tsos’ sole manager, passed away in 1987, he was responsible for paying the crown rents in respect of the lands of the Two Tsos in Hong Kong.  Whilst he obtained cash from the Luohu Village and made payments to the District Office in Hong Kong, he would obtain the payment receipts and return them to Luohu Village for record-keeping. 

(4)  After YKY passed away in 1987, the Luohu Village Committee and then the Luohu Company arranged its staff or representatives to pay the crown rents in respect of the lands of the Two Tsos in Hong Kong.  For several years in the 1990s, DWP herself was tasked with the responsibility of paying the crown rents in respect of the lands of the Two Tsos as well as other Yuan clan lands in Hong Kong.  In the premises, the Luohu Company has been keeping the originals of the crown rent payment receipts from 1977 to 1997. 

(5)  Apart from the originals of the crown rent payment receipts, the Luohu Company are also in possession of the originals of the following documents: (i) 2 certificates issued by the District Office New Territories dated 7 December 1950 showing that YTYT was the owner of various lands; and (ii) a tenancy agreement dated 30 December 1956 signed by YKY as the manager of YTYT. 

(6)  Furthermore, after YKY’s demise in 1987, the rental matters of the lands owned by the Two Tsos had been handled by the Luohu Village Committee and then the Luohu Company.  In this connection, there are contemporaneous rental agreements showing that 袁煥權 acting on behalf of the Luohu Company rented out a piece of land (ie remaining portion of section B in Lot 551 in DD 89) owned by YTYT to a third party during the period from 1997 to 2006. 

(7)  In the premises, DWP contended that there must be (put neutrally) some “connections” between the villagers of Luohu Village (as represented by the Luohu Company and its predecessors (ie the Luohu Production Team and the Luohu Brigade)) and the lands relating to the Yuan clan in Hong Kong (including those held under the Two Tsos). 

13.  The last manager of the Two Tsos was YKY.  He was registered under the relevant provision of the New Territories Ordinance back in 1954[8].  He had remained the sole manager until his death in 1987.  There is no evidence showing that YKY’s appointment and registration as the sole manager of the Two Tsos had been challenged[9].

14.  Since the death of YKY, no one has been appointed as manager of the Two Tsos. 

15.  In the circumstances, the Applicant and the 1^st Respondent, who claim to be members of the Two Tsos, have been exploring means to appoint managers for the Two Tsos. 

16.  The attempts have been unsuccessful.  The District Office (North) (“DO(N)”) did not accept the membership lists that were submitted.  Whilst DO(N) pointed out that there were inconsistencies with the genealogies of other tsos received in the past, DO(N) also cited the objections raised by persons whose identities were not disclosed[10].  In this connection, the 2^nd Respondent accepted that some of the 47 individuals whom he represents in these proceedings were the objectors and that the Village Committee of Luohu Village did raise an objection back in 2017. 

17.  Against the aforesaid background, the Applicant commenced these proceedings. 

18.  In these proceedings, the Applicant asserts that:-

(1)  The 10 Individuals are the only living members of the Two Tsos. 

(2)  The Applicant’s Family Tree is the only correct family tree that set out the lineage of Yun Wun U (袁煥宇) (and hence the members of the Two Tsos). 

(3)  At the purported members’ meeting of the Two Tsos on 18 August 2019, the 10 Individuals (as well as 袁志明 and 袁旭漢, who were still alive at the time) resolved that the Applicant and the 1^st Respondent be appointed as managers of the Two Tsos. 

(4)  Neither the 2^nd Respondent nor the 47 persons he represents are the descendants of Yun Wun U (袁煥宇) and members of the Two Tsos. 

(5)  All descendants of Yun Wun U (袁煥宇) and/or members of the Two Tsos reside in Hong Kong.  Whilst the descendants of the Yuan clan once resided in Luohu Village, members of the Two Tsos moved to Hong Kong in the 1960s and 1970s to escape political turmoil. 

19.  The Applicant’s case is premised on the genealogies (the “YKH Genealogies”) prepared by Mr Yuan King Hay (袁景熹) (“YKH”)[11].

20.  YKH has been the chairman of a committee named理順委員會 (the “Genealogies Committee”), which was set up by the Lowu Yuan Clan Association (羅湖袁氏羅湖縣市宗親會宗親會) (the “Lowu Yuan Clan Association”). 

21.  According to the Applicant, the Genealogies Committee was set up by the Lowu Yuan Clan Association back in February 2019 for undertaking the task of compiling the genealogy of 袁觀德祖.  It was believed that once the genealogy of 袁觀德祖 was verified, the genealogies of other bloodlines from 袁觀德 downwards (including the bloodlines of Yun Wun U (袁煥宇)) would be verified as well in the same exercise. 

22.  In his opening submissions, Mr Valentine Yim[12] (for the Applicant) emphasized that despite limited tangible evidence, the exercise undertaken by the Genealogies Committee and/or YKH was largely a reliable attempt to identify the bloodlines of Yun Wun U (袁煥宇).  Whilst YKH and/or members of the Genealogies Committee had interviewed and visited families of different branches, they had also studied and analyzed:-

(1)  the genealogy of the wider Yuan clan based on a historical document named “寶安袁氏族譜卷上” (hereinafter “卷上”)

(2)  records of other historical events;

(3)  epitaphs and records of ancestors;

(4)  tomb inscriptions;

(5)  crown rent receipts;

(6)  affirmations made by elders and descendants of 袁觀德祖;

(7)  ancestral worship records;

(8)  public campaign to search for descendants;

(9)  membership records of the Lowu Yuan Clan Association; and

(10)  oral histories told by the elders and descendants of 袁觀德祖. 

23.  Meanwhile, Mr Valentine Yim criticized the 2^nd Respondent for:

(1)  not adducing any genealogy showing that he and the 47 persons he represents are the descendants of Yun Wun U (袁煥宇);

(2)  not putting forward a list of members of the Two Tsos;

(3)  not adducing evidence to show that he and the 47 persons he represents had worshipped Yun Wun U (袁煥宇) at his tomb;

(4)  not seeking to convene members’ meeting of the Two Tsos; and

(5)  not seeking to appoint manager(s) for the Two Tsos. 

24.  In response, Mr Stewart Wong SC[13] (for the 2^nd Respondent) emphasized that:-

(1)  As the 2^nd Respondent does not seek any relief in these proceedings at all, the burden lies on the Applicant to show that the YKH Genealogies and the Applicant’s Family Tree (the contents of which are based on the YKH Genealogies) accurately and completely state the lineage of Yun Wun U (袁煥宇). 

(2)  However, although the 2^nd Respondent and the 47 persons he represents assert that they are the descendants of Yun Wun U (袁煥宇) and hence members of the Two Tsos, they do not claim to have an exhaustive list of the Two Tsos’ members and/or a complete genealogy in respect of the lineage of Yun Wun U (袁煥宇). 

25.  Unsurprisingly, Mr Wong took issue as to the way in which the YKH Genealogies were prepared and the underlying methodologies.  The lines of attack pursued by Mr Wong at the trial would be elaborated in details in section C3 below. 

26.  Meanwhile, in his opening submissions, Mr Wong highlighted the following aspects of the 2^nd Respondent’s case (which is based on the Hong Kong Government’s recognition of the role of the Village Committee of Luhou Village, the Luohu Company and its predecessors):-

(1)  As mentioned above, back in 1985, the Luohu Company was set up by the Village Committee of Luohu Village to manage the lands of the Yuan clan, and these included the lands of the Two Tsos in Hong Kong.  In this connection, it is not in dispute that the predecessors of the Luohu Company were (i) the Luohu Production Team; and (ii) Luohu Brigade[14].

(2)  There are contemporaneous documents showing that the Village Committee of Luohu Village, the Luohu Company as well as the Luohu Production Team and the Luohu Brigade were closely involved in managing the affairs relating to the lands of the Two Tsos in Hong Kong, and they were even treated by the Hong Kong Government as the de facto owners of these lands:-

(a)  In 1976, the Hong Kong Government exchanged some lands for lands owned by the Two Tsos (ie section B of lot 216 and section B of lot 238).  Instead of liaising with YKY (who was the sole manager of the Two Tsos), the Hong Kong Government liaised with the Luohu Production Team, and it transpired that the lands provided by the Government for exchange were held on trust for the Luohu Production Team. 

(b)  In 1979, the Hong Kong Government resumed a piece of land owned by the Two Tsos (ie section B of lot 551), and the compensation sum was paid to the leader (namely 袁炳耀) of the Luohu Brigade, not YKY (who was the sole manager of the Two Tsos). 

(c)  The Two Tsos own the remaining portion of section B of lot 551 in their names.  However, from 1988/1989 onwards, the property tax returns and demands have been issued and addressed to the Village Committee of Luohu Village. 

(d)  The originals of the crown rent receipts issued by the Government from 1970s to 1990s in respect of various lands owned by the Two Tsos are in the possession of the Luohu Company. 

(3)  In the premises, it appears that the Village Committee of Luohu Village and the predecessors of the Luohu Company (namely the Luohu Production Team and the Luohu Brigade) did exercise de facto ownership over the lands of the Two Tsos, and such de facto ownership was even recognized by the Hong Kong Government. 

(4)  Mr Wong then asked this rhetorical question: why and how did the Village Committee of Luohu Village and the predecessors of the Luohu Company (namely the Luohu Production Team and the Luohu Brigade) exercise the Two Tsos’ rights and ownership over the aforesaid lands (which were registered in the name of the Two Tsos)? 

(5)  Mr Wong submitted that the answer was that the persons connected with the Village Committee of Luohu Village, the Luohu Company, the Luohu Production Team and the Luohu Brigade[15] were members of the Two Tsos; otherwise, the involvement of the aforesaid entities and the recognition by the Hong Kong Government would be inexplicable. 

(6)  Accordingly, the works undertaken by YKH and/or the members of the Genealogies Committee were not reliable.  They did not carry out research in respect of the matters canvassed hereinabove; nor did they visit and/or interview any person who is related to the Village Committee of Luohu Village, the Luohu Company, the Luohu Production Team, and the Luohu Brigade. 

C.  Deliberation

C1.  This Court’s Approach

27.  Mr Valentine Yim referred me to a line of cases where court discussed the approach to analyzing information in genealogies, including Kan Yan Yau & Anor v Kan Yook Tim & Anor (CACV, 18 June 2008) at para 18 (per Cheung JA); Yap Sui Kong v Yip Fong Tim (HCA 1409/2013, 31 July 2017) at paras 21 to 22 (per Chung J)[16]; Nam Ching Wun v Tsuen Un Pawn Shop & Ors (HCA 2151/2018, 22 November 2016) at para 142; Tsang Kwong Kuen v Hau Wai Keung Gaius [2014] 4 HKLRD 622 at para 12 (per Lam VP, as Lam PJ then was); Chan Chi Shing v Chan Koon Wah (HCAL 132/2010, 27 April 2011) at para 55 (per Au J, as Au JA then was). 

28.  In Kan Yan Yau v Kan Yook Tim (supra) at para 38, Cheung JA stated:-

“The importance of a clan genealogy as a record of a clan’s history was recognized by the two experts in this case and also by the following passage from in Lineage Organisation in Southeastern China by Maurice Freeman (a monograph of London School of Economics of the University of London) at page 70:

‘The written genealogy was clearly an important instrument in the apparatus of the lineage.  It defined its membership.  It was revised, or at least it was supposed to be revised about every one or two generations when, by an elaborate and expensive procedure, the accumulated marriages, births, and deaths were added to the information already recorded.  I assume that on the whole a genealogy which purported to set out the founding ancestor of a lineage and all his descendants in the male line was likely to be a fairly reliable statement of historical events.  All or practically all the data it recorded were probably accurate, although it may well have omitted information which a complete register would have included.  It may be that some of the facts recorded were fanciful; the high status given to the founder of the lineage in Phoenix Village may well be suspect, for example, while it is possible that a lineage rising in status and beginning for the first time to keep a genealogy might record its earlier history in an ideal fashion; but by and large people who appeared in the genealogy were probably given in the kinship and status positions they occupied in life.  Those who outraged the morals of the community (by committing incest, for example) were likely to be left out of the genealogy or struck off if already recorded, while children given out of the lineage in adoption might not appear.  …’”

29.  However, I observe that the YKH Genealogies (upon which the Applicant heavily relies) is not a historical document that was updated from time to time.  Instead, the same was compiled recently in 2019 to reconstruct the bloodlines and lineage of 袁觀德 (ie the top ancestor of the wider Yuan clan) based on evidence and material that were still available. 

30.  Bearing this in mind, it appears to me that the following propositions derived from the authorities mentioned in paragraph 27 above (which Mr Stewart Wong SC accepted) are particularly pertinent in the present context:-

(1)  The court will place weight on (i) the evidence on the method for creating or compiling the genealogies; (ii) the materials based on which the genealogies were compiled; and (iii) the explanation in respect of the inconsistencies. 

(2)  The court will have to be realistic.  Depending on the circumstances, the absence of primary records is not necessarily fatal.  The court does not expect a customary hereditary institution (like a Tso) to keep perfect records as if it were a company which is expected to keep perfect records of its register of members/directors. 

31.  I have no doubt that the aforesaid propositions make ample sense.  As pointed out by Mr Stewart Wong SC, the core issue for the court to consider is whether YKH Genealogies (upon which the Applicant’s case is premised) is correct.  Obviously, the Applicant cannot rely on the contents of the YKH Genealogies to prove that the same are correct.  This would be circular. 

32.  In the premises, it would be necessary for the court to examine, inter alios, (i) the methodologies adopted by YKH and/or the Genealogies Committee in compiling the YKH Genealogies; (ii) the evidence that YKH and/or the Genealogies Committee took into account; (iii) the evidence that YKH and/or the Genealogies Committee refused to take into account; and (iv) all relevant circumstantial evidence. 

C2.  The 10 Individuals

33.  For the purposes of answering the questions raised by the Applicant in these proceedings, it is unnecessary for this court to make findings on every aspect of the YKH Genealogies.  As mentioned, the YKH Genealogies touch upon the bloodlines of the wider Yuan clan. 

34.  The focus is on whether the YKH Genealogies are correct in suggesting that only the 10 Individuals identified in the Applicant’s Family Tree are the living members of the Two Tsos.  In this connection, as argued by Mr Wong, there are deficiency and uncertainty in respect of bloodlines between Yuen Wun U (袁煥宇) and his ancestors that went back to one of the intermediate ancestors, ie 思靜.  However, this issue has no direct bearing on the bloodlines between Yuen Wun U (袁煥宇) and the persons who are said to be his descendants.  In order to answer the questions raised in the originating summons, it is unnecessary for me to conduct an additional “upward tracing” exercise in respect of the bloodlines above Yuen Wun U (袁煥宇).

35.  For the reasons elaborated hereinbelow, I am of the view that the descendants of Yuen Wun U (袁煥宇) are not confined to the 10 Individuals.  On the other hand, on the evidence available to this court, I accept the Applicant’s case that the 10 Individuals are the descendants of Yuen Wun U (袁煥宇).

36.  In this connection, the Applicant relies on the following evidence:-

(1)  the epitaph on the ancestral grave of Yuen Wun U Tso (袁煥宇);

(2)  the information written on the ancestral tablet (神主牌);

(3)  the statutory declarations made by 袁培 and 張漢松;

(4)  the documents submitted for application for probate in respect of the estate of 袁全興; and

(5)  the birth certificates of some of the 10 Individuals. 

37.  My analysis of the evidence is as follows:[17]-

(1)  The epitaph on the ancestral grave of Yuen Wun U (袁煥宇)[18] (which was reconstructed back in 1933) shows that the following persons were the descendants of Yuen Wun U (袁煥宇): 光忠, 巨壁, 全興, 勝護, 𦒉南, 英松, and 英廣.  There is no reason to suppose that the names of persons who were not descendants would appear on the grave of Yuen Wun U (袁煥宇).  I am satisfied that the bloodline between Yuen Wun U (袁煥宇) and the aforesaid persons are established.  

(2)  The epitaph on the ancestral grave does not show the descendants of 全興.  However, in their application for probate in respect of the estate of 全興, the Applicant, 偉豪, and 國強 were able to produce the crown rent receipts[19] dated 17 October 1958, 1960 and 14 January 1980 in respect of the lands that were owned by 全興.  On the evidence available to the court, there is no reason to suppose that some strangers who had nothing to do with the family of 全興would (i) out of the blue pay the crown rents in respect of the lands registered in the name of 全興 and/or (i) obtain and keep the payment records (ie the crown rent receipts).  I am of the view that what most likely happened was that (i) the descendants of 全興 paid the crown rents in respect of the lands registered in the name of 全興 and (ii) as such, they kept the crown rent receipts.  In the circumstances, there are valid reasons to believe that Applicant, 偉豪, and 國強 are linked to 全興.  In my view, what happened was that the aforesaid crown rent receipts were passed on to the Applicant, 偉豪, and 國強 via their ancestors, ie 根穩, 九妹, and/or 志明, who were customarily involved in dealing with the lands registered in the name of全興.  Otherwise, they would not have obtained and kept the originals of the crown rent receipts.  I am satisfied that the bloodline between Yuen Wun U (袁煥宇) and the Applicant, 偉豪, and 國強[20] as well as 麒傑, 麒竣, and 翊軒 (who are indisputably the sons of 國強[21]) are established. 

(3)  The epitaph on the ancestral grave does not show the descendants of 英松.  However, there are birth certificates showing that 旭漢, 嘉康, and 嘉暉 are the descendants of 英松.  These birth certificates are incontrovertible.  I am satisfied that the bloodline between Yuen Wun U (袁煥宇) and 旭漢, 嘉康, and 嘉暉 are established. 

(4)  The epitaph on the ancestral grave does not show the descendants of 英廣.  The only evidence that the Applicant relies on in establishing the bloodline between 英廣 and the 1^st Respondent and 澍銘is the statutory declarations made by 袁培 and 張漢松.  Whilst 袁培 is a member of the wider Yuan clan, 張漢松 has been living 沙嶺羅湖村, and he was a representative of 打鼓嶺羅湖村 from April 2011 to March 2019.  Since 袁培 and 張漢松 did not testify in court, I have some skepticism of their statutory declaration as the court was unable to ascertain the bases of their assertions.  As will be further hereinbelow, I am of the view that 袁培 and 張漢松 were plainly not in a position to set out the members of the Two Tsos on an exhaustive basis.  Nevertheless, it appears to me that 袁培 and 張漢松 are persons who have some knowledge of the matters relating to the members of the wider Yuan clan by reason of their background, and it is believable that they are privy to the oral history told by the elders of the Yuan clan.  In this connection, it was YKH’s evidence that袁培 knew 九妹 very well, and they had a close relationship.  I have no reason to doubt YKH’s evidence in this regard.  In the circumstances, I am, but not without hesitation, inclined to accept 袁培 and 張漢松’s assertions that 英廣 was the father of the 1^st Respondent.  Accordingly, the bloodline from英廣 to the 1^st Respondent is established on balance of the evidence. 

(5)  For completeness, I do not place weight on the information written on the ancestral tablet (神主牌).  As pointed by Mr Stewart Wong SC, the ancestral tablet (神主牌) relied on by the Applicant shows the name of his father, namely 志明, who only passed away in 2021 after the YKH Genealogies were compiled.  There is no question that the ancestral tablet (神主牌) was only a recent creation. 

38.  In the premises, on the evidence and materials available to the court, I am of the view that it is more likely than not that the 10 Individuals are descendants of Yuen Wun U (袁煥宇) and hence members of the Two Tsos. 

C3.  The Persons Associated with the Luohu Village, the Luohu Company, and the Louhu Company’s Predecessors

39.  The next question to consider is whether the Applicant’s Family Tree and the YKH Genealogies are correct in suggesting that the 10 Individuals are the only living descendants of Yuen Wun U (袁煥宇) and hence the only living members of the Two Tsos. 

C3(a) Exercise of de facto Ownership over the Ancestral Lands of the Two Tsos

40.  As mentioned, the forefront of the 2^nd Respondent’s case is that there are living members of the Two Tsos who have been residing in Luohu Village.  This is the reason why the entities that are associated with Luohu Village in the Mainland have been exercising de facto ownership and control over the lands of the Two Tsos in Hong Kong.  In the premises, the Applicant’s Family Tree and the YKH Genealogies, which ignore the persons associated with Luohu Village, are incorrect and incomplete. 

41.  Having considered the available contemporaneous documents, the objective circumstances, the inherent probabilities, the apparent logic of events, the evidence of the witnesses, and counsel’s submissions, I find that:-

(1)  As of 1949, some members of the Yuan clan (including members of the Two Tsos) were residing in the Luohu Village[22].  They had been customarily carrying on agricultural activities on, inter alios, the lands associated with the Yuan clan (including the lands of the Two Tsos) in Hong Kong. 

(2)  At the time, the Mainland Government did not recognize that the villagers or residents of the Luohu Village could individually and/or privately own the interests of the lands associated with the Yuan clan (including the lands of the Two Tsos) in Hong Kong.  From the perspective of the Mainland Government, these lands were treated as “collectivized” assets belonging to the villagers of Luohu Village.  As such, these villagers could only collectively exercise ownership under the leadership of Luohu Village.

(3)  In the circumstances, the Village Committee of Luohu Village, on behalf of the residents or villagers of the Luohu Village, exercised collective ownership over the lands of the Two Tsos in Hong Kong.  To this end, the Village Committee of Luohu Village nominated YKY (as well as his predecessor, namely, 袁穆祥) to act as managers of the Two Tsos.  They were at all material times accountable to the Village Committee of Luohu Village. 

42.  The aforesaid findings are amply supported by the contemporaneous documents before the court. 

43.  As stated in the November 2012 Document issued by the Shenzhen Luohu District Collectivized Assets Management Office (深圳羅湖區集體資產管理辦公室)[23] on 16 November 2012:-

(1)  Historically, for a period exceeding 600 years, members of the Yuan clan had settled in Luohu Village, and they had been carrying on agricultural activities on lands on the northern side (ie the Mainland) as well as the southern side (ie Hong Kong) of the Shenzhen River. 

(2)  After the People’s Republic of China was established, the lands of the Luohu Village in Hong Kong were seen as “collectivized” land assets under the policy of “bringing agricultural lands to communes (帶田入舍)”.  With permission granted by the British Government in Hong Kong, the villagers of Luohu Village carried out agricultural activities on these lands in Hong Kong, but some of these lands were rented out.  The income was collectivized, and tax was paid to the Hong Kong Inland Revenue Department. 

(3)  The predecessor of Luohu Company was the Luohu Production Team.  It was set up in 1963, and the captain or leader was 袁炳耀.  In 1977, the Luohu Production was replaced by the Luohu Brigade, and 袁炳耀 was still the captain or leader. 

(4)  Although different names were used, the reality was that from 1955 onwards, the “collectivized entities” established by Luohu Village (ie the Luohu Company’s predecessors) owned the collectivized assets, including the lands in Hong Kong[24].

44.  The November 2012 Document corroborates and supports DWP’s evidence:-

(1)  When DWP gave oral evidence[25], she explained the concept of “bringing agricultural lands to communes (帶田入舍)”.

(2)  In the 1950s (when private ownership of production assets was abolished or not recognized in the Mainland), villagers would have to surrender their assets that constituted means of economic production to their communes.  For instance, if a villager had a cow (which could be used for farming activities), the cow would have to be surrendered to his commune.  As regards farmlands that were privately owned (such as the farmlands owned by the Two Tsos), villagers would have to surrender the documents relating thereto to the commune, such that the commune would handle and manage the affairs thereof. 

(3)  In light of the November 2012 Document and DWP’s evidence (which I accept and which was convincing), I do understand why and how the Luohu Production Team and the Luohu Brigade managed to exercise de facto control and ownership over the lands of the Two Tsos in Hong Kong.  It is obvious that some villagers in Luohu Village who were privy to the affairs of these lands submitted the relevant documents (such as crown rent receipt) to the Luohu Production Team, and as such it began to manage and handle the affairs of these lands.  There were sound reasons to believe that these villagers were the descendants of Yuen Wun U (袁煥宇).  Otherwise, they would not have been privy to the matters of the lands of the Two Tsos in Hong Kong. 

(4)  However, Mr Valentine Yim suggested that the manager of the Two Tsos (ie YKY) was the one who submitted the relevant documents to the Luohu Production Team.  I cannot see how this suggestion would avail the Applicant’s case, and it appears to be a red-herring.  In this connection, I accept the submissions of Mr Stewart Wong SC that even if YKY was the one who handed in the relevant documents, it does not show that there were no living members of the Two Tsos in Luohu Village as of 1950s.  As Mr Wong pointed out, YKY was appointed by the Village Committee of Luohu Village to act as the manager of the Two Tsos, and the reason why the Village Committee of Luohu Village appointed someone to act as a manager of the Two Tsos was that it considered itself to be owner of the lands of the Two Tsos.  As to the reason why Village Committee of Luohu Village would consider itself to be the owner of the Two Tsos, this could only be because there were members of the Two Tsos living in Luohu Village at the time.  

(5)  In any event, having heard DWP’s evidence and explanations, I am of the view that it was more likely that the relevant documents were submitted by the descendants of Yuen Wun U (袁煥宇).  After all, there is no evidence showing that before the 1950s, the persons who were using and benefiting from the lands of the Two Tsos were not the descendants of Yuen Wun U (袁煥宇).  There were sound reasons to believe that those who were privy to the lands of the Two Tsos at the time were the descendants of Yuen Wun U (袁煥宇).  Thus, when the policy in respect of “bringing agricultural lands to communes (帶田入舍)” was implemented, they surrendered the rights to manage the affairs of these lands to the Luohu Production Team. 

45.  I have no reason to doubt the authenticity of the November 2012 Document, which bears the official chop of the Shenzhen Luohu District Collectivized Assets Management Office (深圳羅湖區集體資產管理辦公室).  Indeed, the contents of the November 2012 Document are consistent with the contents of the materials adduced by the Applicant. 

46.  The Applicant has adduced a statutory declaration dated 30 July 2019 made by袁深權[26].  He is the son of 袁穆祥, who was the predecessor of YKY.  According to the statutory declaration made by 袁深權:-

“根據父親解釋，因1949年內地進行共產制度，與香港資本制度不同，所以羅湖村村委指派袁穆祥出任超凡祖及其餘三個袁全有祖袁煥宇祖袁禮君祖司理……其後，我父親在1951年逃港後，並無返回內地……村委在1954年指派我超凡祖其中一個叔伯袁國仁更換袁穆祥出任超凡祖及其餘三個祖堂司理。”  (emphasis added)

47.  As evidenced by a judgment of Mr DC Bray (Assistant Land Officer) dated 21 October 1954, there is no question that YKY was appointed by the Land District Office in Hong Kong pursuant to the relevant provision of the New Territories Ordinance that was applicable at the time[27].

48.  However, in light of the aforesaid evidence (which I accept), it is clear that YKY as well as his predecessor, namely 袁穆祥, were nominated by the Village Committee of Luohu Village to take up the position as the Two Tsos’ manager.  As such, there was every reason to believe that YKY and 袁穆祥 were accountable to the Village Committee of Luohu Village as well as the entities that it set up to manage the affairs of the lands across the border (ie the Luohu Production Team and the Luohu Brigade).  When the Applicant was cross-examined by Mr Wong, he accepted that this was indeed the case.  This was a fair concession. 

49.  The fact that the Village Committee of Luohu Village, the Luohu Production Team and the Luohu Brigade exercised de facto control and ownership over the lands of the Two Tsos in Hong Kong is also evidenced by other documentary evidence that is hardly controvertible. 

50.  On 8 June 1976, the Assistant Land District Officer of the New Territories issued and signed a document (the “1976 Lands Exchange Document”)[28] to put on record that for the purpose of constructing railways, the Hong Kong Government exchanged various private lands for the lands owned by the Luohu Production Team (including 2 pieces of lands owned by the Two Tsos, ie section B of lot 216 and section B of lot 238).  The 1976 Land Exchange Document was also signed by Mr Yuen Kam Tat, who was the representative of the Luohu Production Team.  In the 1976 Land Exchange Document, it was expressly stated that Yuen Kam Tat acquired the exchanged private lands on behalf of the Luohu Production Team. 

51.  The Applicant disputed the authenticity of 1976 Land Exchange Document.  For the following reasons, it appears to me that the challenge was ill-founded:-

(1)  First of all, I fully accept DWP’s evidence that the 1976 Land Exchange Document was retrieved from the records of the Luohu Company.  Whilst there is plainly no basis to suggest that the 1976 Land Exchange Document was forged, the Applicant did not go so far as to suggest that this was the case.  In my view, the only possibility was that Mr Yuen Kam Tat, who represented the Luohu Production Team in liaising with the Hong Kong Government, obtained the original of the 1976 Land Exchange Document from the Assistant Land Officer of the New Territories, and he then provided the same to the Luohu Production Team for the purposes of record-keeping.  This was why the Luohu Company (being the successor of Luohu Production Team) has been keeping the original of this document. 

(2)  Second, the Applicant contended that the Hong Kong Government would not have entered into any dealings with the Luohu Production Team.  He relied on a document of the Government[29] showing that the “cross border policy” in the 1960s was such that a commune could not hold lands in Hong Kong unless it was incorporated under the Companies Ordinance.  However, as pointed out by Mr Stewart Wong SC, Mr Yuen Kam Tat (who acquired the exchanged lands for the Luohu Production Team) made a declaration of trust dated 8 June 1976 in favour of the Luohu Production Team, and such a declaration of trust was registered with the Land Registry[30].  Had the cross-border policy relied on by the Applicant still been applicable in the 1970s, the said declaration of trust would not have been registrable with the Land Registry at all.  When the Applicant was cross-examined by Mr Wong on this, he fairly conceded that the logical inference to draw is that as of the time when the land exchange in question took place in 1976, the cross-border policy mentioned in the Government’s internal document that he relied on was no longer applicable. 

52.  Furthermore, as evidenced by a receipt dated 13 March 1979 (the “1979 Land Resumption Receipt”) that was signed by an executive officer of the District Office of Tai Po and 袁炳耀 of the Luohu Brigade[31], 袁炳耀, as agent of the Luohu Brigade, received a compensation sum of HK$210,665 in respect of the Government’s resumption of various lands, including a piece of land owned by the Two Tsos (ie section B of lot 551). 

53.  The Applicant did not have an answer to the transaction evidenced by the 1979 Land Resumption Receipt.  However, he pointed out that there is a confidential document from the Government showing that back in 1952, a manager of another Tso received a payment in respect of the resumption of various lands and that the Hong Kong Government adopted a cautious approach in dealing with the brigades in the Mainland[32].  With no disrespect, these matters are neither here nor there. 

54.  Importantly, as evidenced by a letter dated 4 October 2001 issued on behalf of the Director of the Lands Department (the “2001 Lands Department Letter”)[33], the policy adopted by the Government at the material times was as follows:-

(1)  All along, many lands in the New Territories were owned by residents or villagers who resided on the Mainland. 

(2)  In the past, the Government in the Mainland did not recognize private ownership of lands, and as such these lands were (deemed to be) owned by the brigades or communes in the Mainland. 

(3)  In the late 1970s and 1980s, when the Hong Kong Government resumed these lands, the practice that was adopted was to await the relevant brigades or communes to claim compensation, and the Hong Kong Government would then deal with the claims. 

(4)  The practice of paying compensation to brigades or communes ceased in 1984. 

55.  In light of the policy adopted by the Hong Kong Government in the 1970s and 1980s, it was wholly explicable as to why the compensation money in respect of the lands of the Two Tsos were paid to the representative of the Luohu Brigade.  Plainly, it was not the case that the Luohu Brigade wrongfully usurped the interests of the Two Tsos out of the blue.  Instead, the Hong Kong Government expressly recognized the Luohu Brigade’s de facto ownership of the lands of the Two Tsos. 

56.  The de facto ownership exercised by the Luohu Company, the Luohu Production Team and the Luohu Brigade was also evidenced by the fact that they paid the crown rents and the property tax in respect of the lands of the Two Tsos. 

57.  Insofar as the crown rents are concerned:-

(1)  It is not in dispute that the Luohu Company has been in possession of the originals of a series of crown rent receipts in respect of the lands owned by the Two Tsos[34].  They cover the period from 1977 to 1997. 

(2)  I fully accept DWP’s evidence that:-

(a)  Before YKY passed away in 1987, he was responsible for paying the crown rents, using the monies provided by the Luohu Village.  As such, he provided the originals of the crown rent receipts to the Village Committee of Luohu Village for record-keeping. 

(b)  After YKY passed away, the representatives of the Village Committee of Luohu Village and/or the Luohu Company, including herself, paid the crown rents, using the monies provided by Luohu Village.  As such, they provided the originals of the crown rent receipts to the Village Committee of Luohu Village and/or the Luohu Company for record-keeping. 

(3)  In my view, DWP’s evidence makes sense and is consistent with the objective circumstances.  There are no other explanations as to how the Luohu Company could have obtained the originals of the crown rent receipts. 

58.  As regards the property tax:-

(1)  From 1988 onwards, the Inland Revenue Department has been issuing tax demand notes in respect of certain lands[35] owned by the Two Tsos to the Village Committee of Luohu Village, and there are payment receipts showing that tax was duly paid throughout the years[36]. 

(2)  Obviously, the Village Committee of Luohu Village, the Luohu Company and/or its predecessors have been renting out the lands of the Two Tsos in Hong Kong for rental profits.  This is why the obligation to pay tax has been triggered. 

(3)  As pointed out by Mr Stewart Wong SC, under section 15 of the New Territories Ordinance (Cap 97) and section 5 of the Inland Revenue Ordinance (Cap 112), the manager of the Two Tsos should be responsible for the property tax in respect of the lands of the Two Tsos. 

(4)  Nonetheless, the reality was such that the Inland Revenue Department issued tax demand notes to the Village Committee of Luohu Village, and the Village Committee of Luohu Village duly paid the tax demanded by the Inland Revenue Department. 

(5)  In this connection, the Applicant’s purported explanation was that as YKY lived in Luohu Village, the tax demand notes were issued to the Village Committee of Luohu Village.  I have no hesitation in rejecting this explanation:-

(a)  First of all, there is no reason why the tax demand notes could not be sent to YKY directly.  In fact, all the tax demand notes issued by the Inland Revenue Department state that the addressee is the Village Committee of Luohu Village.  The name of YKY does not appear at all.  Not an iota of the tax demand notes suggests that YKY is the intended recipient or addressee. 

(b)  Second, it is not in dispute that YKY passed away in 1987.  As such, the tax must have been paid by the Village Committee of Luohu Village and/or the entities that it set up.  There is no evidence showing that any other person would have paid the tax. 

59.  For completeness, it should also be pointed out that:-

(1)  On 7 December 1950, the District Office of the New Territories issued 2 documents certifying that 袁穆祥 was the manager of the YWUT and YTYT, and he was the owner of the lands that were expressly identified (the “Certificates”)[37]. These Certificates were apparently amended, in that the name of 袁穆祥 was crossed out and replaced by YKY. 

(2)  The originals of the Certificates have been kept by Luohu Company and relied on by the 2^nd Respondent to show that the Village Committee of Luohu Village has been exercising de facto control and ownership over the lands of the Two Tsos. 

(3)  The purpose of the Certificates was to enable the manager of the Two Tsos to identify the lands of the Two Tsos, such that they could deal with them.  This was why the lands of the Two Tsos were set out, and the Certificates contained a note suggesting that:

“This certificate is given for the sole purpose of enabling landholders to identify their lands in the District Office in the District Office registers…”

(4)  Mr Stewart Wong SC contended that as YKY all along acknowledged that the Village Committee of Luohu Village was the real owner of the lands of the Two Tsos, he provided the originals of the Certificates to the Village Committee of Luohu Village. 

(5)  I accept Mr Wong’s contention.  In my view, the inference that he suggested is sound. 

(6)  However, the Applicant doubted the authenticity of the Certificates on the ground that the said amendment was not countersigned. 

(7)  In my view, the Certificates were genuine:-

(a)  First of all, I fully accept DWP’s evidence that the Certificates were retrieved from the records of Luohu Company. 

(b)  Second, there is no room for the Applicant to make a song and dance about the amendment.  It appears to me that the amendment was merely a subsequent update to reflect the fact that YKY had replaced 袁穆祥 as the manager of the Two Tsos.  Had the Certificates been forged, the forger would not have created the amendment. This would only give rise to doubt and suspicion unnecessarily. 

(c)  Third, in any event, the Applicant did not go so far as to suggest that the Certificates were forged.  There is plainly no evidence showing that this was the case. 

60.  In light of the overwhelming contemporaneous documentary evidence, I find and conclude that the Village Committee of Luohu Village, the Luohu Company, the Luohu Production Team, and the Luohu Brigade did exercise de facto ownership and control over the lands of the Two Tsos in Hong Kong and that their de facto ownership and control were recognized by the Hong Kong Government as well as the public authorities in the Mainland.  The contemporaneous documents canvassed hereinabove show that the Village Committee of Luohu Village, the Luohu Production Team, and the Luohu Brigade:-

(1)  enjoyed the benefits and entitlements to which a real owner was entitled, ie (i) receiving compensation moneys and exchanged lands under the Government’s resumption exercises and (ii) receiving rental income; and

(2)  discharged the obligations required of a real owner, ie (i) paying tax and (ii) paying crown rent. 

61.  The next question to consider is: why was this the case? 

62.  There can be no dispute that the Village Committee of Luohu Village, the Luohu Company, the Luohu Production Team, and the Luohu Brigade represented the interests of the villagers or residents of Luohu Village.  As mentioned in the November 2012 Document issued by the Shenzhen Luohu District Collectivized Assets Management Office (深圳羅湖區集體資產管理辦公室)[38], these villagers or residents are the descendants of the Yuan clan who settled in Luohu Village over 600 hundred years ago, and they have been carrying on agricultural activities on lands on the southern side of the Shenzhen River (ie the New Territories in Hong Kong). 

63.  It was plainly not the case that the villagers or residents of Luohu Village usurped the lands of the Yuan clan (including the lands of the Two Tsos) as trespassers out of the blue.  On the contrary, the objective circumstances show that they have been customarily carrying on agricultural activities on these lands for generations, and in the 1950s, pursuant to the policy of “bringing agricultural lands to communes (帶田入舍)”, the Village Committee of Luohu Village and/or the Luohu Production Team took over the management of these agricultural lands. 

64.  Against this background, it was wholly explicable and understandable as to why the Hong Kong Government as well as the authorities in the Mainland would recognize the de facto ownership and control exercised by the Village Committee of Luohu Village, the Luohu Production Team, and the Luohu Brigade (which represented the interests of the villagers or residents of Luohu Village) at times when private or individual ownership of lands was not recognized in the Mainland. 

65.  In the premises, there are sound reasons to believe that some villagers or residents in Luohu Village were/are descendants of Yuen Wun U (袁煥宇) and hence members of the Two Tsos.  Had this not been the case:-

(1)  these villagers would not have used and/or enjoyed the lands of the Two Tsos customarily;

(2)  the lands of the Two Tsos would not have been subject to the policy of “bringing agricultural lands to communes (帶田入舍)” in the 1950s;

(3)  the Village Committee of Luohu Village, the Luohu Production Team, and the Luohu Brigade (which represented the interests of the villagers or residents of Luohu Village) would not have exercised de facto ownership and control of these lands; and

(4)  the de facto ownership would not have been recognized by the public authorities in the Mainland as well as Hong Kong. 

66.  In this connection, it should be mentioned that:-

(1)  When the Applicant and the 1^st Respondent sought to convince the DO(N) to accept their assertion that the 10 Individuals (as well as 袁志明 and 袁旭漢, who had passed away by now) were the descendants of Yuen Wun U (袁煥宇), they relied on their alleged de facto control and/or ownership[39] over some of the lands owned by the Two Tsos to show that they were related to Yuen Wun U (袁煥宇)[40]. 

(2)  Further, the Applicant also relies on the crown rent receipts in respect of the lands owned by 全興 (which evidences de facto ownership) to establish the bloodline between 全興, 根穩, 九妹, 志明, 偉豪, 國強, and himself: see paragraph 37(2) above. 

67.  Accordingly, the Applicant appears to accept that exercise of de facto ownership over ancestral lands is, to say the least, a relevant factor to be considered for establishing or proving bloodlines and connections with ancestors.  I cannot see how the Applicant can simultaneously suggest that the fact that the Village Committee of Luohu Village, the Luohu Production Team, and the Luohu Brigade (which represented the interests of the villagers or residents of Luohu Village) exercised de facto ownership and control over the lands of the Two Tsos is utterly irrelevant.  There is no room for the Applicant to blow hot and cold in this manner. 

68.  However, Mr Valentine Yim (for the Applicant) pointed out that the shareholders of the Luohu Company include women (such as DWP).  Mr Yim also pointed out that these female shareholders could not be members of the Two Tsos. 

69.  Mr Yim’s observation would not avail the Applicant’s case.  His contention is based on the premise that the Luohu Company is a replacement of the Two Tsos.  This is a false premise.  As pointed out by Mr Stewart Wong SC, this is not even what 2^nd Respondent seeks to contend.  I accept that having treated the lands of the Yuan clan (including the lands of the Two Tsos) as “collectivized assets”, the Luohu Company (and its predecessors, ie the Luohu Production Team, and the Luohu Brigade) had probably distributed the income deriving therefrom to people who were not male members of the Yuan clan (and/or the Two Tsos), including female family members of the male villagers of Luohu Village[41].  However, this does not undermine the facts that the Luohu Company/the Luohu Production Team/the Luohu Brigade were able to exercise de facto ownership and control over the lands of the Two Tsos and that they represented the interests of the villagers of Luohu Village.  As pointed out, if none of these villagers (i) were members of the Two Tsos and/or descendants of Yuen Wun U (袁煥宇) and (ii) had been customarily carrying on agricultural activities on the lands of the Two Tsos, it was unlikely that the aforesaid entities would have exercised de facto ownership and control. 

70.  Mr Valentine Yim also criticized the Village Committee of Luohu Village and the Luohu Company for not taking steps to resolve the disputes relating to the lands in Hong Kong. 

71.  I am unable to see how Mr Yim’s purported criticism may avail the Applicant’s case in these proceedings.  As submitted by Mr Stewart Wong SC, the issues in these proceedings are not even concerned with the legal and/or beneficial ownership over the lands of the Two Tsos.  All along, the 2^nd Respondent’s case is that the de facto ownership exercised by the Village Committee of Luohu Village, the Luohu Company, the Luohu Production Team, and the Luohu Brigade supports an irresistible inference that there have been living members of the Two Tsos in the Luohu Village. 

72.  In any event, Mr Yim’s criticism is simply unreal:-

(1)  As pointed out by DWP when she testified[42], the Hong Kong Government, at one stage, expressly recognized the de facto ownership of the Village Committee of Luohu Village, the Luohu Production Team, and the Luohu Brigade.  I accept that, at one stage, there was no pressing need to sort out questions relating to ownership. 

(2)  Further, it was DWP’s evidence[43] that the Luohu Company did inform the Mainland authorities about the difficulty that it faced, but the problems could not be resolved.  I accept DWP’s evidence.  Obviously, these historical problems were complicated, in that they involved clashes of two different legal systems with different perspectives of ownership.  There was no surprise that the Village Committee of Luohu Village, the Luohu Company as well as the authorities in the Mainland were unable to come up with a satisfactory solution. 

73.  Further, Mr Valentine Yim suggested that the 2^nd Respondent and/or DWP concealed the valuation report prepared by accountants back in 1992 for the purpose of valuing the shareholding of the Luohu Company, and that such a valuation report would show that the accountants did not take into account the value of the lands of the Yuan clan (including the lands of the Two Tsos) controlled by the Luohu Company and its predecessors.

74.  I do not accept Mr Yim’s suggestion:-

(1)  The valuation report in question was created more than 30 years ago.  In my view, there is nothing unusual about the fact that the Luohu Company no longer retains a copy thereof.  When DWP testified[44], she pointed out that a Mainland company is only required to keep accounting documents for a period of around 10 to 15 years.  DWP’s evidence makes sense, and I accept the same. 

(2)  In any event, even if the accountants did not take into account the value of the lands of the Yuan clan in the course of valuing the Luohu Company’s shareholding, it does not follow that the Luohu Company and its predecessors had not exercised de facto control and ownership over the lands in question.  As mentioned, the exercise of de facto ownership and control is evidenced by overwhelming documentary evidence, including contemporaneous correspondence issued by public authorities in both the Mainland and Hong Kong. 

75.  Mr Valentine Yim also submitted that assuming that Yuen Wun U (袁煥宇) had no descendants at all, even if Luohu Company and its predecessors exercised de facto ownership over the lands of the Two Tsos, it does not follow that there are living members of the Two Tsos in Luohu Village.  Relying on this hypothetical scenario, Mr Yim challenged the logic of the 2^nd Respondent’s case theory. 

76.  I reject Mr Yim’s hypothetical argument.  This court does not resolve the dispute between the parties in a vacuum, and litigation is not a logical mind game.  Indeed, Mr Yim’s contention is based on an extreme scenario, which is not consistent with the evidence before the court. 

77.  On the evidence before the court, there is nothing showing that all the male descendants in the Luohu Village had been exterminated.  As will be elaborated further in section C3(f) hereinabove, there is also not a shred of concrete evidence showing that all the male descendants in Luohu Village had left or emigrated.  As such, the premise of Mr Yim’s argument is unsustainable.  For the reasons canvassed hereinabove, I am of the view that as of the 1950s (when the practice of “bringing agricultural lands to communes (帶田入舍) began), there must be male descendants of Yuen Wun U (袁煥宇) in the Luohu Village.  Otherwise, the Village Committee of Luohu Village, the Luohu Production Team, and the Luohu Brigade would not have managed to exercise de facto control over the lands of the Two Tsos in the subsequent decades.  Indeed, the Applicant admitted that as of 1949, there were members of the Two Tsos living in Luohu Village[45].  In the ordinary course of events, these male descendants of Yuen Wun U (袁煥宇) would live on, get married, and give birth to offsprings (including male offsprings).  On the evidence available to the court, I cannot see how Mr Yim could invite this court to find that these did not happen.  There is simply no evidential basis for this court to find that all these male descendants had been exterminated or had left the Luohu Village.

78.  For completeness, I should point out that Mr Valentine Yim also suggested that the male descendants of Yuen Wun U (袁煥宇), who had fractional interests in the lands of the Two Tsos, might be treated as “landlords” and hence subject to persecution in the Mainland.  However, the evidence before the court shows that the descendants of Yuen Wun U (袁煥宇)/the members of the Two Tsos (or alternatively YKY) had surrendered the rights to manage the lands of the Two Tsos to the Luohu Production Team in the 1950s.  In other words, the lands in question had already been “collectivized” under the policy of “bringing agricultural lands to communes (帶田入舍)”.  In the circumstances, there are reasons to believe that these descendants of Yuen Wun U (袁煥宇) or the members of the Two Tsos, who merely enjoyed some fractional interests over the lands of the Two Tsos, would not be subject to persecution.  After all, the policy implemented in the Mainland had been complied with.  

79.  In his closing submissions, Mr Valentine Yim contended that the Applicant is effectively being asked to “prove a negative” (ie apart from the 10 Individuals, the Two Tsos did not have any other surviving member).  In light of the evidential difficulty, Mr Yim, relying on Greaves v Greenwood (1876) 2 Ex D 289, Re Benjamin [1902] 1 CH 723, and Re Estate of Wong Lin Fat (Deceased) [2024] 4 HKLRD 970 at para 19 (per DHCJ Andrew Li), went on to contend further that it suffices for the Applicant to take reasonable steps to trace the individuals, and the Applicant shall not be required to disprove all the probabilities or possibilities raised by the 2^nd Respondent.

80.  My views on Mr Yim’s submissions are as follows:-

(1)  As Queeny Au-Yeung J observed in Chen Mei Lan v The Registrar of Companies & Ors (HCA 894/2015, 30/12/2016) at para 47:-

“A judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. It is open to him the 3^rd alternative of saying that the party on whom the burden of proof lies has failed to discharge that burden.  No judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so...”

(2)  This is obviously not a case where the outcome of the parties’ dispute depends on the question of burden of proof alone (which is a last resort).  Indeed, as elaborated above, whilst the 2^nd Respondent’s case is not premised on any complaint that the Applicant has failed to prove a “negative”, there is overwhelming affirmative evidence showing that the Village Committee of Luohu Village, the Luohu Production Team, and the Luohu Brigade exercised de facto ownership over the lands of the Two Tsos, and the irresistible inference is that there have been living members of the Two Tsos in Luohu Village. 

(3)  In my view, the questions before the court are whether based on the available evidence, it can be shown that, on the balance of probabilities, the 10 Individuals are the only living members of the Two Tsos or that there have been no living members of the Two Tsos in Luohu Village.

(4)  On the available evidence, I have no difficulty in making an affirmative finding that the answers to the aforesaid questions are in the negative.  As pointed out, it is hardly controvertible that there were living members of the Two Tsos in Luohu Village as of 1949[46] and the 1950s.  Despite the purported tracing exercise carried out by the Applicant and/or YKH, there is simply no evidential basis for suggesting that all the male descendants of Yuen Wun U (袁煥宇) and/or members of the Two Tsos had been exterminated or had left Luohu Village.  For the reasons elaborated hereinabove (see paragraphs 77 to 78 above), I do not believe that this was the case.

(5)  In the premises, I disagree with the Applicant’s suggestion that it is more likely than not that the 10 Individuals are the only living members of the Two Tsos and that there have been no living members of the Two Tsos in Luohu Village.

C3(b) YKH’s Reason for Refusing to Consider De Facto Ownership exercised by the Village Committee of Luohu Village, Luohu Production Team, and Luohu Brigade

81.  It is not in dispute that in the course of compiling the YKH Genealogies, YKH and/or the Genealogies Committee (of which YKH is the chairman) did not take into account the fact that the Village Committee of Luohu Village, the Luohu Production Team, and the Luohu Brigade exercised de facto ownership and control over the lands of the Two Tsos.  They took the view that this fact was irrelevant.  As such, they did not interview the persons who were associated with the Village Committee of Luohu Village and the Luohu Company (which is the successor of the Luohu Production Team and the Luohu Brigade). 

82.  YKH’s explanation was as follows.  In his view, the fact that Luohu Company commenced proceedings against Un Kau Kung Tso (袁晧公祖) under HCMP 2320/2000 conclusively shows that none of the persons who are associated with the Luohu Company are the descendants of Yuen Wun U (袁煥宇), and the stance of the Luohu Company is such that neither Un Kau Kung (袁晧公) nor Yuen Wun U (袁煥宇) has any descendant. 

83.  In order to understand YKH’s explanation, it is necessary to set out the background relating to HCMP 2320/2000:

(1)  According to the YKH Genealogies, Un Kau Kung (袁晧公) was an ancestor of Yuen Wun U (袁煥宇). 

(2)  According to DWP, some villagers of Luohu Village, as authorized by the Luohu Company (and its predecessors), had been carrying on agricultural activities on the lands registered in the name of Un Kau Kung Tso (袁晧公祖) for decades. 

(3)  In around 1998 or 1999, the Government resumed the lands of Un Kau Kung Tso (袁晧公祖).  It transpired that 4 persons, namely 袁海深, 袁國禎, 袁效良 and 袁月明, sought to claim compensation in respect of the lands resumed by the Government[47]. At the time, the manager of Un Kau Kung Tso (袁晧公祖), namely 袁旭樞, had passed away already.  As such, Un Kau Kung Tso (袁晧公祖) was not in a position to protect its own interests. 

(4)  With a view to curbing the aforesaid persons (namely 袁海深, 袁國禎, 袁效良 and 袁月明) from claiming the compensation, Luohu Company commenced HCMP 2320/2000 against Un Kau Kung Tso (袁晧公祖) alleging adverse possession over the lands that were resumed by the Government. 

(5)  On 8 January 2001, the Luohu Company managed to obtain judgment against Un Kau Kung Tso (袁晧公祖).  However, on 17 December 2001, upon YKH’s application to represent Un Kau Kung Tso (袁晧公祖) to contest the proceedings, DHCJ Muttrie set aside the said judgment[48].

(6)  Since then, the proceedings in HCMP 2320/2000 have not been prosecuted.

84.  Put simply, the views of YKH were as follows:-

(1)  The 4 persons, ie 袁海深, 袁國禎, 袁效良 and 袁月明, were not managers of 袁晧公祖.  They had no basis to claim compensation from the Government at all.  Hence, the commencement of HCMP 2320/2000 against Un Kau Kung Tso (袁晧公祖) was unjustifiable, and the same constituted an outright attack against Un Kau Kung Tso (袁晧公祖).  This was nothing something that true descendants would do. 

(2)  Since Un Kau Kung (袁晧公) was an ancestor of Yuen Wun U (袁煥宇), the descendants of Yuen Wun U (袁煥宇) must be the descendants of Un Kau Kung (袁晧公) as well.  Thus, by commencing HCMP 2320/2000 against Un Kau Kung Tso (袁晧公祖), the Luohu Company must have admitted that the persons whom it represented were not the descendants of Yuen Wun U (袁煥宇) and that Yuen Wun U (袁煥宇) had no descendants. 

85.  For the following reasons, I do not accept YKH’s suggestion that Luohu Company’s conduct relating to HCMP 2320/2000 constituted an admission or concession that the persons whom it represented are not the descendants of Yuen Wun U (袁煥宇) or that Yuen Wun U (袁煥宇) has no descendants.  In my view, this suggestion is contrived and artificial:-

(1)  First of all, with the benefit of hindsight, YKH was probably correct to assert 袁海深, 袁國禎, 袁效良 and 袁月明, who were not managers of Un Kau Kung Tso (袁晧公祖), had no locus standi to claim the compensation sum from the Government.  Nonetheless, I do understand why Luohu Company would, out of an abundance of caution, wish to take steps to ensure the 4 abovementioned individuals could not claim the compensation sum and that the compensation sum would be received by itself.  After all, the Luohu Company represented the interests of the villagers of Luohu Village.  However, as a matter of Hong Kong law, the Luohu Company did not have an official capacity to represent those who were the descendants of Un Kau Kung Tso (袁晧公祖).  In the circumstances, it was understandable as to why Luohu Company would wish to pursue a claim based on adverse possession, such that it could, in the capacity as a squatter, claim the compensation sum from the Government.  In my view, the commencement of HCMP 2302/2000 was a pragmatic attempt to protect and preserve the interests of those villagers of Luohu Village who were descendants of Un Kau Kung Tso (袁晧公祖).  It was neither illegitimate nor unjustifiable.  I disagree with YKH’s view that HCMP 2302/2000 was an outright attack against Un Kau Kung Tso (袁晧公祖).  This view is superficial.  It ignores the background against which HCMP 2302/2000 was commenced. 

(2)  Second, on proper analysis, I am of the view that the Luohu Company’s claim in HCMP 2302/2000 was not contradictory to the suggestion that the villagers or residents that it represented were the descendants of Un Kau Kung (袁晧公) and/or Yuen Wun U (袁煥宇):-

(a)  The cause of action relied on by the Luohu Company was adverse possession, and it was Luohu Company’s case that:- (i) it authorized and/or allowed villagers of Luhou Village to use and occupy the lands of Un Kau Kung Tso (袁晧公祖) for agricultural purposes; and (ii) it had never obtained the consent or authorization of the manager(s) of Un Kau Kung Tso (袁晧公祖).  These assertions were not contradictory to the suggestion that the villagers or residents of Luohu Village were the descendants of Un Kau Kung (袁晧公).  The Luohu Company’s claim was simply founded upon the absence of consent or authorization on the part of the manager of Un Kau Kung (袁晧公), being the lawful title owner of the lands in question.  The claim based on adverse possession had nothing to do with, and was not premised upon, the bloodlines of Un Kau Kung (袁晧公). 

(b)  However, relying on Leung Kuen Fai v Tang Kwong Yu & Ors [2002] 2 HKLRD 705 at paras 37 and 45, Mr Valentine Yim emphasized that whenever a new member of a Tso is born, a new equitable interest in the Tso’s property is created.  Thus, a new limitation period of 24 years would start to run pursuant to sections 7(2) and 22 of the Limitation Ordinance (Cap 347).  Mr Yim then went on to contend that by commencing HCMP 2302/2000, the Luohu Company had accepted that Un Kau Kung Tso (袁晧公祖) did not have any member that was below 24 years old.  In my view, this observation would not avail the Applicant’s case at all.  As Mr Stewart Wong SC pointed out, putting Mr Yim’s contention to the highest, it could only be said that (technically speaking) the Luohu Company had accepted that as of 2000, Un Kau Kung Tso (袁晧公祖) might not have members that were below 24 years old.  It was not the case that the Luohu Company had accepted that Un Kau Kung Tso (袁晧公祖) had no member at all or that none of the villagers whom it represented were descendants of Un Kau Kung (袁晧公). 

(3)  Third, more fundamentally, there is no evidence showing that the Luohu Company had appreciated the legal niceties discussed in sub-paragraph (2) hereinabove.  In this connection, it is observed that as of the time when the Luhou Company commenced HCMP 2302/2000, Leung Kuen Fai (supra) had not yet been decided.  Thus, the Luohu Company and its legal advisors at the time could not have appreciated the implications.  It is obvious that the concern of the Luohu Company was the compensation money.  In my view, the leadership or management of the Luohu Company could not have envisaged that by pursuing the claims in HCMP 2302/2000, they would be deemed to be making an alleged admission that the villagers of Luhou Village were not the descendants of Un Kau Kung (袁晧公) and/or Yuen Wun U (袁煥宇).  This suggestion is farfetched.  Bearing in mind the background relating to the proceedings, I am not of the view that the intention of the leadership or management of Luohu Company was to make an assertion as to the bloodlines of Un Kau Kung (袁晧公) and/or Yuen Wun U (袁煥宇). 

(4)  Fourth, after all, questions relating to the bloodlines of Un Kau Kung (袁晧公) and/or Yuen Wun U (袁煥宇) should be determined with reference to the available evidence and the historical materials.  In light of the background against which HCMP 2302/2000 was commenced, I am not of the view that the Luohu Company’s decision (which was strategic in nature) could constitute a meaningful or unequivocal admission that carries weight. 

86.  For all the above reasons, I reject YKH’s suggestion that HCMP 2302/2000 conclusively shows that the persons associated with and/or represented by the Luohu Company are not descendants of Yuen Wun U (袁煥宇) and/or members of the Two Tsos. 

87.  Having said that the Village Committee of Luohu Village, the Luohu Production Team, the Luohu Brigade, and the Luohu Company exercised de facto ownership and control over the lands of the Two Tsos and that exercise of de facto ownership and control over ancestral lands is a relevant factor to consider (see section C3(a) above), I am of the view that YKH and/or the Genealogies Committee should have (i) interviewed the persons who are associated with these entities and (ii) carried out research in respect of the information that they provide.  Unfortunately, these were not done.  I am not of the view the YKH Genealogies were prepared in a manner that was reliable and fair. 

C3(c) Oral History

88.  When YKH gave oral evidence, he accepted that in light of the political turmoil in the Mainland in the past and consequentially the limited amount of tangible evidence, he and the Genealogies Committee inevitably had to rely on the oral history told by the elders of the Yuan clan to compile the YKH Genealogies.  This is understandable.  Be that as it may, it appears to me that it would be unsafe to rely on the oral history told by these elders to delineate the bloodlines of Yuen Wun U (袁煥宇) on an exhaustive basis.  In this connection, I see the force of the following submissions advanced by Mr Stewart Wong SC. He submitted that:-

“…even if it is assumed that one should know by himself (ie without consulting elders) one’s father, grandfather etc, all the way up for many generations, which may in itself be questionable, there is no reason or basis to say that one would know whether one’s, say great-grandfather, had only one son, being one’s own grandfather. The great-grandfather might have…other sons, and…[other] grandsons. It would be fanciful to suggest that a particular person would by himself know of all such sons, grandsons, great-grandsons etc. It is a fortiori when one goes further and further up the generations.”

89.  In the premises, it would be prudent (and indeed necessary) to cross-check the oral history told by different elders and to carry out research in regard to the discrepancies.

90.  In this connection, according to YYQ, the following elders who have been residing in Luohu Village could provide oral history in relation to the bloodlines of Yuen Wun U (袁煥宇):- 袁東風，袁水根，袁徫忠，袁煜祺，袁榮耀，袁水泰，袁財，袁定，袁金培，袁滿就，袁發洪，袁昌發，袁煥權, and DWP. 

91.  In light of the de facto ownership and control exercised by the Village Committee of Luohu Village, the Luohu Production Team, the Luohu Brigade, and the Luohu Company, it appears that the aforesaid elders have connections (put neutrally) with the matters relating to the Two Tsos, and they could have provided meaningful information relating to the descendants of Yuen Wun U (袁煥宇). 

92.  However, by reason of his views on the implication of HCMP 2302/2000 (which I reject), YKH refused to interview the aforesaid elders and refused to carry out research in respect of the information that they could provide.  Indeed, when YKH testified, there were various occasions where he expressed hostility towards the Luohu Company as well as the persons associated with it. 

93.  With no disrespect, it appears to me that YKH (and/or the Genealogies Committee) had turned a blind eye to the obvious.  I am of the view that their works were not reliable.  

C3(d) Statutory Declarations

94.  The Applicant (and YKH) relied on the statutory declarations made by the following persons: (i) 袁培[49]; (ii) 張漢松[50]; (iii) 張志雄[51]; and (iv) 袁深權[52].

95.  Insofar as the statutory declarations of袁培 is concerned:-

(1)  He asserted that the 1^st Respondent, 袁旭漢, and 袁志明 were the descendants of the Yuen Wun U (袁煥宇), and their family trees (the contents of which are, in substance, consistent with the Applicant’s Family Tree) were exhibited. 

(2)  However, 袁培 did not assert that the 10 Individuals (as well as 袁志明 and 袁旭漢 who had passed away by now) were the only descendants of Yuen Wun U (袁煥宇). 

(3)  This was fair enough.  As pointed out by Mr Stewart Wong SC:-

(a)  袁培 is not a member of the Two Tsos and/or a descendant of Yuen Wun U (袁煥宇). 

(b)  The residential address of 袁培 was an apartment in Kwun Tong, and there is no evidence showing that 袁培 had lived in Luohu Village. 

(4)  In the premises, 袁培 is clearly not in a position to tell (i) whether there are living members of the Two Tsos in Luohu Village; (ii) whether the persons represented by or associated with Luohu Company and its predecessors (ie the Luohu Production Team and Luohu Brigade) were members of the Two Tsos; and (iii) whether the 10 Individuals (as well as 袁志明 and 袁旭漢) were the only living members of the Two Tsos. 

96.  As regards the statutory declaration made by 張漢松: -

(1)  張漢松 was the village representative of 沙嶺羅湖村, and he had lived in 沙嶺羅湖村 for years. 

(2)  張漢松 effectively said that he verily believed that as of 20 February 2019, the only living members of the Two Tsos were the 10 Individuals (as well as 袁志明 and 袁旭漢).  He then exhibited the Applicant’s Family Tree. 

(3)  It is doubtful as to how 張漢松 could verify that the only members of the Two Tsos at the time were the 10 Individuals (as well as 袁志明 and 袁旭漢).  In his statutory declaration, 張漢松 did not explain the basis of his alleged belief.  For the reasons best known to the Applicant, 張漢松 did not come to court to testify, such that he could explain. 

(4)  In this connection, Mr Stewart Wong SC pointed out that:-

(a)  張漢松 is not a member of the Two Tsos and/or a descendant of Yuen Wun U (袁煥宇). 

(b)  There is no evidence showing that 張漢松 has lived in Luohu Village. 

(5)  Mr Wong’s observations are valid.  I do not believe that 張漢松 could have any personal knowledge in respect of the questions of (i) whether the 10 Individuals (as well as 袁志明 and 袁旭漢) were the only living members of the Two Tsos as of February 2019; and (ii) whether the persons represented by or associated with Luohu Company and its predecessors (ie the Luohu Production Team and Luohu Brigade) were members of the Two Tsos. 

97.  As regards the statutory declaration made by 張志雄 and 袁深權: -

(1)  Their statutory declarations were made in support of the application for probate in respect of the estate of全興.  In these statutory declarations, 張志雄 merely asserted that the 1^st Respondent, 袁志明, and 袁旭漢 were the descendants of 全興, and their family trees (the contents of which are, in substance, consistent with the Applicant’s Family Tree) were exhibited.

(2)  In all fairness, neither 張志雄 nor 袁深權 suggested that the 10 Individuals (as well as 袁志明, and 袁旭漢) were the only members of the Two Tsos. 

(6)  In this connection, Mr Stewart Wong SC, again, observed that:

(a)  張志雄 and 袁深權are not members of the Two Tsos; and

(b)  There is no evidence showing that 張志雄 and 袁深權had lived in the Luohu Village. 

(7)  In the premises, it is clear that 張志雄 and 袁深權 could not tell (i) whether there are living members of the Two Tsos in Luohu Village; (ii) whether the persons represented by or associated with Luohu Company and its predecessors (ie the Luohu Production Team and Luohu Brigade) were members of the Two Tsos; and (iii) whether the 10 Individuals (as well as 袁志明 and 袁旭漢) were the only living members of the Two Tsos. 

98.  For all the above reasons, I am of the view that the Applicant (as well as YKH) cannot rely on the statutory declarations of (i) 袁培; (ii) 張漢松; (iii) 張志雄; and (iv) 袁深權 to conclude that:-

(1)  the members of the Two Tsos and/or the descendants of Yuen Wun U (袁煥宇) were confined to the 10 Individuals (as well as 袁志明 and 袁旭漢, who had passed away by now); and

(2)  no one in Luohu Village are living members of the Two Tsos and/or the descendants of Yuen Wun U (袁煥宇). 

99.  I now consider whether there is any other evidence showing that the 10 Individuals are the only living descendants of Yuen Wun U (袁煥宇). 

C3(e) Epitaph on the Grave of Yuen Wun U (袁煥宇)

100.  For the following reasons, the epitaph on the grave of Yuen Wun U (袁煥宇)[53] does not show that the 10 Individuals are the only living descendants of Yuen Wun U (袁煥宇). 

101.  According to the information on the grave of Yuen Wun U (袁煥宇), it was rebuilt or repaired back in 1933. 

102.  According to the information in the family tree[54] annexed to the statutory declarations made by 張志雄 and 袁深權, as of 1933:-

(1)  根穩 was 43 years old; and

(2)  九妹 was 18 years old

103.  The epitaph on the grave of Yuen Wun U (袁煥宇) shows the names of 𦒉南, 英松, and 英廣 (in the capacities as the descendants of Yuen Wun U (袁煥宇)).  However, the names of 根穩 (who belonged to the same generation as 𦒉南) and 九妹 (who belonged to the same generation as 英松, and 英廣) were not shown at all. 

104.  As mentioned above:-

(1)  It is the Applicant’s case that 根穩 and 九妹 were the descendants of Yuen Wun U (袁煥宇) via the bloodline involving 光忠, 巨壁, and 全興.  I accept the Applicant’s case in this regard.

(2)  In light of the de facto ownership over the lands owned by 全興 (as evidenced by the crown rent receipts), I also accept the Applicant’s case that 根穩, 九妹, 志明, the Applicant, 偉豪, 國強, 麒傑, 麒竣, and 翊軒 were indeed the descendants of 全興 and thus also the descendants of Yuen Wun U (袁煥宇).

105.  In the premises, even on the Applicant’s case (which I accept), the epitaph on the grave of Yuen Wun U (袁煥宇) does not exhaustively set out all his descendants who existed at the time. 

106.  In my view:-

(1)  If the name of a person appears in the epitaph, it is, depending on the circumstances, likely that he is a descendant of the ancestor whose bloodline is in question.  There is no reason to suppose that the name of a stranger would appear. 

(2)  However, the fact that a person’s name does not appear in the epitaph does not show that he is not a descendant of the ancestor.  There are various reasons why a descendant’s name is not mentioned in the epitaph.  For instance, it could be the case that he or his close family members were not involved in rebuilding or repairing the grave.  It could also be the case that he was not involved in the lives of those who rebuilt or repaired the grave, and hence was ignored or overlooked by them. 

107.  In the premises, I am not of the view that the Applicant and YKH can rely on the epitaph on the grave of Yuen Wun U (袁煥宇) to show that the 10 Individuals are the only living descendants of Yuen Wun U (袁煥宇) and that none of the villagers in Luohu Village is a descendant of Yuen Wun U (袁煥宇). 

C3(f)  All members of the Two Tsos had left Luohu Village? 

108.  The Applicant suggested that all the members of the Two Tsos had left Luohu Village at the times when the Mainland was in political turmoil.

109.  The Applicant’s assertion was based on what his father allegedly told him.  However, there is no detail about the alleged conversation between the Applicant and his father.  For instance, there is no evidence as to the basis on which the Applicant’s father allegedly made the assertion; nor is there any evidence as to the matters that were known to the Applicant’s father.

110.  In the premises, I am unable to attach much weight to the Applicant’s suggestion, which is neither corroborated by any concrete evidence nor supported by any analysis.  In fact, the Applicant (who was born in the 1975) had never lived in Luohu Village.  He was plainly not in a position to tell whether there were/are living members of the Two Tsos in Luohu Village.  He could not address the question of whether those members of the Two Tsos who lived in Luohu Village as of 1949 and the 1950s[55] had subsequently left the Luohu Village and never returned.  

111.  For the above reasons, I do not accept the Applicant’s bare assertion.

C3(g) Worshipping Activities

112.  The Applicant and the 1^st Respondent have not adduced any evidence showing that the 10 Individuals (as well as 袁志明 and 袁旭漢) had worshipped Yuen Wun U (袁煥宇) at his tomb.  They merely adduced some photographs showing that some persons worshipped the tomb of an ancestor belonging to the Yuan clan[56]. 

113.  Likewise, the 2^nd Respondent has not adduced any evidence showing that the villagers of Luohu Village and/or persons associated with the Luohu Company had worshipped Yuen Wun U (袁煥宇) at his tomb[57].  He has merely adduced some photographs showing that villagers of Luohu Village and/or persons associated with the Luohu Company (such as DWP) worshipped an ancestor belonging to the 9^th generation of the Yuan clan[58]. 

114.  It is important not to lose sight of the following facts:-

(1)  The Yuan clan has a long history, and as evidenced by YHK’s Genealogies, many ancestors are involved. 

(2)  Yuen Wun U (袁煥宇) was only one of these ancestors, and he lived centuries ago[59]. 

115.  In the circumstances, there is nothing surprising about the fact that neither the Applicant nor the 2^nd Respondent is able to adduce contemporaneous evidence to show that the persons associated with them had worshipped Yuen Wun U (袁煥宇).  I have no reason to suppose that they would feel emotionally attached to Yuen Wun U (袁煥宇).  In my view, the lack of worshipping activities on their part does not ipso facto show that they are not genuine descendants.

C3(h) Open Search and Membership of the Lowu Yuan Clan Association

116.  In his evidence, YKH relied on the following matters to contend that the descendants of Yuen Wun U (袁煥宇) and/or the members of the Two Tsos are confined to the 10 Individuals: (i) the open search for descendants; and (ii) the membership of the Lowu Yuan Clan Association.

117.  I am not of the view that these matters would avail the Applicant’s case at all.

118.  Insofar as (i), ie the open search, is concerned:-

(1)  Whilst YKH did not provide the detail of the search results, it is obvious to me that in light of his views on the alleged implications of HCMP 2302/2000 (which I reject), YKH did not carry out any research in respect of the villagers or residents in the Luohu Village who were/are associated with the Luohu Company.

(2)  In any event, the Village Committee of Luohu Village did not accept that YKH and/or the Lowu Yuan Clan Association have authorities to deal with the matters relating to Yuen Wun U (袁煥宇) and/or the Two Tsos.  Unsurprisingly, there is not a shred of evidence showing that any villagers or residents in Luohu Village had responded to the purported open search. This was understandable.

119.  As regards (ii), ie the membership of the Lowu Yuan Clan Association, it appears to me that the same proves nothing at all.  As accepted by YKH[60], the Lowu Yuan Clan Association did not carry out a verification exercise to confirm that an applicant for membership with the Lowu Yuan Clan Association must be a member of the Yuan clan.  In any event, the Village Committee of Luohu Village did not accept that YKH and/or the Lowu Yuan Clan Association have authorities to deal with the matters relating to the Yuan clan.  In the circumstances, there is nothing surprising about the fact that the villagers or residents in Luohu Village were not keen on joining the Lowu Yuan Clan Association (which operates in Hong Kong).  I am unable to infer that their lack of enthusiasm shows that they are not the descendants of Yuen Wun U (袁煥宇) and/or members of the Two Tsos.

C3(i) Other Points raised on behalf of the Applicant

120.  Mr Valentine Yim pointed out that some of the 47 individuals represented by the 2^nd Respondent, such as 袁海深and 袁水泰, had previously submitted dubious genealogies to the Government, and the contents of these genealogies are inconsistent with the suggestion that some of the 47 individuals were descendants of Yuen Wun U (袁煥宇). 

121.  Mr Yim’s criticism would not avail the Applicant’s case at all:-

(1)  The foremost issue to be determined in these proceedings is whether the Applicant’s Family Tree (the contents of which are based on YKH’s Genealogies) is correct in suggesting that the 10 Individuals are the only living members of the Two Tsos.  As pointed out in paragraph 24 above, Mr Stewart Wong SC made it absolutely clear whilst the 2^nd Respondent disputes the Applicant’s case based on the YKH Genealogies and the Applicant’s Family Tree, the 2^nd Respondent does not have an affirmative case, and neither he nor the 47 persons he represents purport to have a list or a genealogy that completely sets out the members of the Two Tsos.  In gist, what the 2^nd Respondent contended was that in light of the connection evidenced by the de facto ownership and control exercised by the Village Committee of Luohu Village, the Luohu Company, the Luohu Production Team, and the Luohu Brigade, it could not be the case that none of the villagers or residents of the Luohu Village is a member of the Two Tsos.  In my view, the stance taken by the 2^nd Respondent is fair enough.  After all, under the questions raised in the originating summons, the Applicant does not ask specifically ask the court to determine the status of the 47 persons represented by the 2^nd Respondent. 

(2)  In these premises, the 2^nd Respondent did not even seek to rely on the previous genealogies submitted by, inter alios, 袁海深and 袁水泰.  These documents do not form part of the case of the 2^nd Respondent; nor were they adduced by the 2^nd Respondent at all[61]. 

(3)  With no disrespect, it appears to me that what Mr Yim sought to do was to mount an attack against a strawman and then make a song and dance about it.  This is futile.  The fact that the aforesaid previous genealogies are dubious and inaccurate does not show that the YKH Genealogies and the Applicant’s Family Tree are accurate and complete. 

(4)  For completeness, I should also point out that even though some aspects of the genealogies previously submitted by, inter alios, 袁海深and 袁水泰 to the Government are dubious and incorrect:-

(a)  It does not follow that the information known to the elders in the Luohu Village (such as 袁東風，袁水根，袁徫忠，袁煜祺，袁榮耀，袁財，袁定，袁金培，袁滿就，袁發洪，袁昌, and DWP) is incorrect.  As explained, I am of the view that there was no sound reason why YKH and/or the Genealogies Committee did not interview these elders and carry out research in respect of the information that they provide. 

(b)  It does not follow that everything said by 袁海深and 袁水泰 should be ignored completely, though it would be prudent to exercise a healthy degree of skepticism.  There is a possibility that 袁海深and 袁水泰 are mistaken as to the bloodlines of certain ancestors, but their understanding as to the bloodlines of other ancestors is still correct.  One may only form a meaningful view upon analyzing the information that they provide and cross-checking the same against the information provided by others and the available evidence.  Unfortunately, YKH and/or the Genealogies Committee had not undertaken this exercise. 

122.  Mr Valentine Yim also contended that in light of the time pressure under which YYQ prepared his substantive affirmation filed in these proceedings, he could not have sufficient time to consult the elders of Luohu Village.  As such, it is doubtful as to whether YYQ could assert that the 2^nd Respondent and the 47 persons he represents are the descendants of Yuen Wun U (袁煥宇). 

123.  Again, Mr Yim’s criticism would not avail the Applicant’s case at all:-

(1)  As already pointed out, the foremost issue to be determined in these proceedings is whether the Applicant’s Family Tree and/or the YKH Genealogies are correct in suggesting that the living members of the Two Tsos are confined to the 10 Individuals.  Even though the alleged understanding of the elders in Luohu Village is not correct and some of the 47 persons represented by the 2^nd Respondent are not members of the Two Tsos, it does not follow this court can conclude that the Applicant’s Family Tree and the YKH Genealogies are correct and complete. 

(2)  It should be reiterated that the 2^nd Respondent has not brought a counterclaim, and he does not ask the court to declare that he and the 47 persons he represents are the members of the Two Tsos.  As such, it is not necessary for this court to make an affirmative finding on this question.  For the purpose of disposing the issues before the court under the Applicant’s originating summons, it suffices for me to find (and I do find) that it is more likely that not that there are living members of the Two Tsos in Luohu Village, and that accordingly the Applicant’s Family Tree and the YKH Genealogies are incomplete.

(3)  In this connection, I should, for completeness, point out that under the directions of my order given at the pre-trial review, one of the issues to be determined at trial is whether the 2^nd Respondent and the 47 persons he represents are members of the Two Tsos.  However, as pointed out by Mr Stewart Wong SC, in light of the stance taken by the Applicant, this issue only concerns whether the 2^nd Respondent and the 47 persons have locus standi to raise objections in these proceedings.  Mr Wong argued that it is unnecessary for the court to form a conclusive view.  The reason, Mr Wong submitted, is that the nature of these proceedings is not adversarial in nature: see Re Estate of Chiu Keung (supra) at para 60.  As such, the court cannot turn a blind eye to the objective documentary evidence adduced by the 2^nd Respondent (as canvassed in section C3(a)) simply because the Applicant does not accept that the 2^nd Respondent and the 47 persons are the descendants of Yuen Wun U (袁煥宇).  I accept Mr Wong’s submissions.  After all, under the questions raised in the Applicant’s originating summons, the foremost issue to be resolved is simply whether the Applicant’s Family Tree and/or the YKH Genealogies are correct in suggesting that the living members of the Two Tsos are confined to the 10 Individuals.  Obviously, even if the 2^nd Respondent and/or some of the 47 persons are not the descendants of Yuen Wun U (袁煥宇), it does not follow that the Applicant’s Family Tree and/or the YKH Genealogies are correct or that the 10 Individuals are the only living members of the Two Tsos.

(4)  In any event, as clarified by YYQ during re-examination, although he was only formally authorized by the 2^nd Respondent to file an affirmation in these proceedings 11 days before his substantive affirmation was filed[62], he was all along aware of the 2^nd Respondent’s health condition, and he had started participating in the matters relating to these proceedings about 3 months before his substantive affirmation was filed.  Having observed the way in which YYQ gave evidence, I accept YYQ’s evidence.  In my view, his evidence was firm, succinct, and believable.  I am of the view that YYQ must have sufficiently consulted the elders in Luohu Village in regard to the bloodlines of Yuen Wun U (袁煥宇), and he had reasons to believe that the 2^nd Respondent and the 47 persons he represents are genuine descendants.  Be that as it may, having said that the foremost issue to be determined is whether the living members of the Two Tsos are confined to the 10 Individuals and that I am of the view that it is more likely than not that some of the villagers/residents in Luohu Village are the descendants of Yuen Wun U (袁煥宇), it is unnecessary for me to make finding on whether the 2^nd Respondent and each of the 47 persons are members of the Two Tsos.  This is a dispute for another day.  As will be elaborated further: see paragraphs 135 to 138 below, this court is not in a position to compile the genealogy of Yuen Wun U (袁煥宇) at this stage. 

124.  Mr Valentine Yim also criticized the Luohu Company for (i) not attending the purported members’ meeting convened by the Applicant’s side on18 August 2019 and (ii) not causing the 2^nd Respondent and the 47 persons to pass members’ resolutions of the Two Tsos for appointing managers. 

125.  I am of the view that there is no substance in these complaints:-

(1)  As pointed out by DWP[63] when she was cross-examined by Mr Yim, the Luohu Company and/or the Village Committee of Luohu Village never accepted that the Applicant and the persons associated with him had standing to convene a members’ meeting of the Two Tsos.  This was why the Luohu Company and/or the Village Committee of Luohu Village did not send representatives to attend the same.

(2)  As regards the question of why the Luohu Company and/or the Village Committee of Luohu Village did not convene proper members’ meetings for appointing managers for the Two Tsos, DWP pointed out that it would take time to gather all the persons who are members of the Two Tsos, and some of them live overseas.  As such, this would not be an easy task.  In this connection, there is no suggestion that the Luohu Company and/or the Village Committee of Luohu Village possess a list or a family tree that exhaustively set out the members of the Two Tsos. 

(3)  I accept DWP’s explanations, which make sense.  There is no room for Mr Yim to ask this court to draw an inference that that the Luohu Company, the Village Committee of Luohu Village, the 2^nd Respondent, and the 47 persons actually knew and accepted that the 10 Individuals (as well as袁志明 and 袁旭漢, who were still alive at the time) were the only living members of the Two Tsos.  On the evidence available to the court, this was plainly not the case. 

126.  Mr Valentine Yim criticized the 2^nd Respondent for not adducing evidence from袁恩文(ie the current chairman of the Luohu Company), 袁煥權 (who was involved in handling or managing some of the matters of the Two Tsos’ lands in Hong Kong), and 袁可仁 (who might possess a genealogy of the Two Tsos).  Mr Yim further contended that these witnesses might establish that the Luohu Company is able to locate other members of the Two Tsos, and the reason for not adducing evidence from them was that their evidence would contradict the 2^nd Respondent’s case.

127.  I disagree with Mr Yim’s submissions, and I refuse to draw an adverse inference against the 2^nd Respondent:-

(1)  In light of the way in which the 2^nd Respondent ran his case, I am of the view that it was reasonable for him to adduce evidence from DWP and YYQ only.  In particular, DWP served the entities relating to Luohu Village for 3 decades, and she was involved in and familiar with the matters relating to the Two Tsos. I am not of the view that the 2^nd Respondent has suppressed evidence or that he has been playing litigation gamesmanship.

(2)  Indeed, the involvement of 袁恩文, 袁煥權, and袁可仁 only became issues when DWP responded to the questions raised by Mr Yim during cross-examination. I agree with Mr Stewart Wong SC that the 2^nd Respondent could not have anticipated all the lines of questioning from the Applicant’s legal representatives.  In my view, the 2^nd Respondent and his legal representatives were not expected to adduce evidence from witnesses to cover everything under the sun.  They entitled to focus on the core issues.

D.  Conclusion and Disposition

D1.  Conclusion

128.  For all the above reasons, I find that, on the balance of probabilities, it is more likely than not that:-

(1)  The 10 Individuals are descendants of Yuen Wun U (袁煥宇) and hence members of the Two Tsos. 

(2)  Nevertheless, the 10 Individuals are not the only living descendants of Yuen Wun U (袁煥宇) and/or the only living members of the Two Tsos. 

(3)  There are living descendants of Yuen Wun U (袁煥宇) and/or living members of the Two Tsos in Luohu Village. 

D2.  Answers to the Questions raised in the Originating Summons

129.  Accordingly, the answers to the questions raised by the Applicant in his originating summons are as follows. 

Questions 1(1), 2(1), 3(1), and 4(1)

130.  Under Questions 1(1) and 2(1), the Applicant asks the court to determine whether 10 Individuals identified in the Applicant’s Family Tree are all the present members of the Two Tsos. 

131.  Under Questions 3(1) and 4(1), the Applicant asks the court to determine whether the Applicant’s Family Tree correctly depicts the lineage of Yuen Wun U (袁煥宇). 

132.  Having said that it is more likely than not that some villagers in the Luohu Village are living descendants of Yuen Wun U (袁煥宇) and hence members of the Two Tsos, the answers to Questions 1(1), 2(1), 3(1), and 4(1) are in the negative. 

Questions 1(2), 2(2), 3(2), and 4(2)

133.  Under Questions 1(2) and 2(2), the Applicant asks the court to identify all the persons who are present members of the Two Tsos.  

134.  Under Questions 3(2) and 4(2), the Applicant asks the court to come up with the correct family tree of Yuen Wun U (袁煥宇). 

135.  In my view, Questions 1(2), 2(2), 3(3), and 4(3) are not raised appropriately.  This court is obviously not equipped to carry out the function of reconstructing the bloodlines of Yuen Wun U (袁煥宇).  This court is not even in a position to carry out the necessary investigation.  For instance, this court cannot, on its own volition, interview the individual villagers or elders in Luohu Village who could provide relevant information. 

136.  In my view, if the Applicant, YKH and/or the Genealogies Committee want the court to determine the status of the individual villagers in Luohu Village, what they should have done were to:-

(1)  conduct the relevant investigation first;

(2)  present the relevant materials and evidence (as well as the analysis) to the court;

(3)  frame specific questions that touch upon the status of the individual villagers in the originating summons; and

(4)  ensure that the individual villagers who are affected by the declaratory relief claimed under originating summons be joined as parties to the proceedings, such that they would have the opportunity to be heard. 

137.  Unfortunately, the Applicant did none of these, but he effectively asked the court to carry out the impossible task of compiling a complete genealogy of Yuen Wun U (袁煥宇) in a vacuum.  This is inappropriate. 

138.  In the premises, I refuse to answer Questions 1(b), 2(b), 3(b), and 4(b).  This is a dispute to be resolved on another occasion. 

Questions 5 and 6

139.  Under Questions 5 and 6, the Applicant asks the court to determine whether the Applicant and the 1^st Respondent were validly appointed as managers of the Two Tsos by reason of the resolutions that were passed at the members’ meetings on 18 August 2019 (which were only attended by the 10 Individuals as well as袁志明 and 袁旭漢, who were still alive at the time). 

140.  As mentioned, I find that it is more likely than not that some villagers in the Luohu Village are living descendants of Yuen Wun U (袁煥宇) and hence members of the Two Tsos. 

141.  There is no expert evidence showing that the members’ meetings on 18 August 2019 were validly convened or that some members of the Two Tsos could unilaterally convene a valid meeting without involving other members. 

142.  Accordingly, the answers to Questions 5 and 6 are in the negative. 

D3.  Costs

143.  As regards the question of costs, I direct the parties to lodge and serve written submissions (limited to 10 pages) within 21 days, and the same will be disposed of by this court on paper. 

D4.  Other Matters

144.  Lastly, I express my gratitude to Mr Valentine Yim, Mr Aidan Tam, Ms Chelsea Lau, Ms Reina Lee, Mr Stewart Wong SC, and Mr Philip Li for their helpful assistance.

Annexure 1: the Applicant’s Family Tree

[1] This is placed under Annexure 1 of this Judgment.  

[2] The stance of the 1^st Respondent is basically the same as the Applicant.

[3] The Applicant and the 1^st Respondent’s stance is that the 2^nd Respondent and the 47 persons he represents are not members of the Two Tsos.  Obviously, if the 2^nd Respondent and the 47 persons are members of the Two Tsos, the 10 Individuals’ share in the interests under the Two Tso would be smaller.  

[4] As mentioned, he was also known as Yuen Tsun Yau (袁全有).  For the sake of brevity, he will hereinafter be referred to as Yun Wun U (袁煥宇) only

[5] In the Applicant’s dramatis personae, it is stated that these entities were the predecessors of the Luohu Company: see page 4.  

[6] He is a resident of the Luohu Village, and claims to be a member of the Two Tsos.  

[7] The most pertinent part of the November 2012 Document reads as follows: “在上述的轉變過程中，其名稱雖有不同，但其從1955年至今仍屬於羅湖村的集體企業並擁有所有集體資產（包括使用出租，其中部份土地落於香港境內），即深圳市羅湖汝南實業股份有限公司對其前身的集體資產擁有所有權”

[8] It was section 19 of the New Territories Ordinance that was applicable at the time.  It was equivalent to the current section 15 of the New Territories Ordinance.  

[9] It is the Applicant’s case that YKY was not even a member of the Two Tsos, and he merely belonged to the wider Yuan clan.  

[10] There was a subsequent Norwich Pharmacal application seeking disclosure in respect of the objectors.  

[11] In this connection, it should be mentioned that during the oral opening submissions of Mr Valentine Yim (for the Applicant), it was emphasized that putting aside the YKH Genealogies, there was sufficient evidence showing that the 10 Individuals were the descendants of the Yun Wun U (袁煥宇).  

[12] Together with Mr Aidan Tam, Ms Chelsea Lau, and Ms Reina Lee

[13] leading Mr Philip Li

[14] In the Applicant’s dramatis personae, it is stated that these entities were the predecessors of the Luohu Company: see page 4.  

[15] such as the 2^nd Respondent (who was the grandson of the leader of the Luohu Brigade (namely 袁炳耀))

[16] Chung J’s judgment was overturned by the Court of Appeal, but the Court of Appeal’s judgment ([2018] 4 HKLRD 791) does not touch upon Chung J’s approach to genealogies.  

[17] Readers are invited to read this paragraph in conjunction with the Applicant’s Family Tree in order to understand the bloodlines alleged by the Applicant: see Annexure 1 of this Judgment.  

[18] Bundle B6, page 1264

[19] Bundle B6, pages 1366 to 1368.  

[20] There are birth certificates (which are incontrovertible) showing that Applicant, 偉豪, and 國強 are the sons of 志明.  

[21] There are birth certificates (which are incontrovertible) showing that 麒傑, 麒竣, and 翊軒 are the sons of 國強.  

[22] This was indeed admitted by the Applicant: see his 1^st Affirmation, para 15 and 7^th Affirmation, para 13.

[23] Bundle B7, pages 1640 to 1641.  

[24] The original texts read as follows: “在上述的轉變過程中，其名稱雖有不同，但其從1955年至今仍屬於羅湖村的集體企業並擁有所有集體資產（包括使用出租，其中部份土地落於香港境內），即深圳市羅湖汝南實業股份有限公司對其前身的集體資產擁有所有權”

[25] Day 10, before morning break

[26] Bundle B1, page 68

[27] It was section 19 of the New Territories Ordinance (Cap 97) that was applicable as of 1954.  It was equivalent to the current section 15 of the New Territories Ordinance.  

[28] Bundle B, page 1738

[29] Bundle B4, page 889-67

[30] Bundle B4, pages 889-41 to 889-42

[31] In this document, it was named as “Lo Wu Brigade”

[32] Bundle B4, pages 889-4 to 889-39

[33] Bundle B6, page 1384

[34] Bundle B8, pages 1886 to 1895

[35] Eg Lot 551 SB RP in DD 89

[36] Bundle B8, pages 1750 to 1883

[37] Bundle B8, 1962 to 1963

[38] Bundle B7, pages 1640 to 1641.

[39] It should be noted that when the Applicant testified, he accepted that the 10 Individuals (or 12 Individuals) did not have the locus standi to deal with the lands of the Two Tsos as none of them was manager of the Two Tsos.  However, they tried to liaise with the squatter who occupied some of the Two Tsos’ lands.  To this end, some tenancy agreement was created in favour of a company associated with the Clan Association (of which YKH was a director).  As the Applicant accepted when he testified, this arrangement was just to create a pretense for the said company to evict the squatter.  However, when YKH testified, he did say that this company had rent out some lands to tenants for agricultural purposes, but no documentary evidence was adduced to substantiate this assertion.  

[40] See paragraph 34 of the discussion document submitted to DO(N) produced at Bundle B3, page 530. 

[41] This was YYQ’s oral evidence

[42] Day 11, after morning break

[43] Day 11, after morning break

[44] Day 10, after lunch

[45] See Applicant’s 1^st Affirmation, para 15 and 7^th Affirmation, para 13.

[46] This was indeed admitted by the Applicant: see his 1^st Affirmation, para 15 and 7^th Affirmation, para 13.

[47] See Bundle B7, page 1518.  On 11 February 1998, the Village Committee of Luohu Village issued a letter to DO(N) to oppose the application of the 4 individuals for the compensation money.  Indeed, as evidenced by paragraph 7 of the decision of DHCJ Muttrie (Bundle B1, page 123] and paragraph 23 of the affirmation made by Yuen Kwok Ching filed in support of YKH’s application to join the proceedings in HCMP 2320/2000 (Bundle B7, page 1526], the aforesaid letter was available to the Clan Association, and it was YKH’s case that some members of Un Kau Kung Tso (袁晧公祖) had applied to the Hong Kong Government for inheritance of the lands and compensation in respect of the land resumption.  

[48] See Decision dated 17 December 2021 (Bundle B1, pages 121 to 133)

[49] Bundle B6, pages 1360 to 1361, 1369 to 1470

[50] Bundle B6, pages 1358 to 1359

[51] Bundle B6, pages 1373 to 1374

[52] Bundle B6, pages 1371 to 1372

[53] See the photograph at Bundle B6, page 1348

[54] Bundle B6, pages 1372 and 1374.

[55] This was indeed admitted by the Applicant: see his 1^st Affirmation, para 15 and 7^th Affirmation, para 13.

[56] Bundle B6, pages 1282 to 1287.  When DWP testified (Day 12, after lunch), she mentioned that the tomb belonged to Un Kau Kung (袁晧公), and the villagers of Luohu Village would customarily worship Un Kau Kung (袁晧公), after which they would worship the ancestor belonging to the 9^th generation.  In my view, DWP was a credible witness.  Having observed the way in which she spontaneously responded to the questions asked of her, I accept DWP’s evidence in this regard.  

[57] According to YYQ, the tomb of Yuen Wun U (袁煥宇) had been moved in the past.  As such, it is doubtful as to whether the current tomb is genuine and whether the body of Yuen Wun U (袁煥宇) has been buried underneath the tomb.  

[58] Bundle B7, pages 1563 to 1573

[59] It is believed that he lived in the 18^th century.  

[60] Day 5, before lunch

[61] These documents were adduced by the Applicant, and they obtained the same from the Government pursuant to a Norwich Pharmacal application.  

[62] This was filed on 25 November 2025

[63] Day 12, after lunch