TANG CHUN KIT (MINOR) BY TANG MAN LOK AND ANOTHER v. TANG LO PING

HCMP 5529/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5529 OF 2000

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J U D G M E N T

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1. This action concerns the rights of two male descendants to the Tang clan in the New Terrritories in respect of certain Tso properties. The Tso in question is Tang Nam Kai Tso (鄧南溪祖). It is common ground that the Tso is an ancestral landholding institute (as opposed to an non-ancestral common ownership institute like a Wui). According to an abridged genealogy attached to the Defence, the common ancestor of the Tangs in Kam Tin was Tang Hung Yee (鄧洪儀). He had four sons. Tang Nam Kai Tso was set up by those descended from one of the sons, viz. Kuen (鋗). The genealogy shows Kuen had five sons. Two branches appeared to have become extinct. The genealogy gave more information concerning those descending from two sons, viz. Chen (瓚) and Hong (頊).

2. The 1st and 2nd Plaintiffs claimed that they are members of the Tso and the Defendant, as manager of the Tso, refused to recognize that. By these proceedings, the Plaintiffs claimed the following declaratory relief,

"1. That [the 1st Plaintiff] being a male descendant of Tang Nam Kai is entitled to have his name recorded in the Register of Indigenous Inhabitants in respect of Tang Nam Kai Tso or Nam Kai Tso;

2. That [the 1st Plaintiff] is entitled to be paid an appropriate share of all distributions of proceeds or money made to male descendants of Tang Nam Kai by the Tso since his birth, namely 25 November 1997;

3. That [the 2nd Plaintiff] being a male descendant of Tang Nam Kai is entitled to have his name recorded in the Register of Indigenous Inhabitants in respect of Tang Nam Kai Tso or Nam Kai Tso; and

4. That [the 2nd Plaintiff] is entitled to be paid an appropriate share of all distributions of proceeds or money made to male descendants of Tang Nam Kai by the Tso since his birth, namely 6 July 1985."

3. There is no claim for monetary judgment or other relief in the Originating Summons. In the course of his closing submissions, Mr Wu made an application for leave to amend the Originating Summons and the Statement of Claim. For reasons given orally at the hearing, the application was refused.

4. The 1st Plaintiff's father Tang Man Lok is a descendant of Chen (瓚). He belongs to the branch known as Sze Kim Tong (師儉堂). Tang Man Lok had married one Pang Ngan Mui in 1974. Two sons were born out of that marriage. Relationship deteriorated between the couple and in 1992, Tang Man Lok started cohabitation with a lady called Wong Fun in mainland China. Out of that cohabitation, the 1st Plaintiff was born in November 1997.

5. The 2nd Plaintiff's late father was Tang Chi Fuk. According to the abridged genealogy, Tang Chi Fuk was an adopted son of a male descendant of Hong. Although initially there was a dispute between the parties as to an adopted son's right in the Tso, this is no longer an issue. The Defendant now accepts that adopted son have the same right as natural son.

6. Tang Chi Fuk married one Chan Ngan Ho in 1951. They parted company in 1970's but there was no formal divorce. The 2nd Plaintiff was born in 1985 out of a second union between Tang Chi Fuk and one Tam Yuen Lan in mainland China. Tang and Tam had registered their marriage in mainland China in December 1983. In his affirmation of 24 November 2000 and his First Supplemental Affirmation of 12 March 2001 (admitted as evidence in the trial by consent), Tang Chi Fuk disputed the validity of that marriage. He said that he did not agree to the marriage and the lady was brought to him by a car instead of a ceremonial sedan chair (大紅花轎). He also alleged that they had not undergone any formal ceremony. Due to his passing away before the trial, he did not give any viva voce evidence before me and Mr Yeung did not have any opportunity of cross-examining him.

7. His evidence was contradicted by the evidence of Tang Mou Chung. According to the latter, there had been proper marriage ceremony between Tang Chi Fuk and Chan Ngan Ho. The formalities were similar to those adopted by others in the village and elders were in attendance. No-one had ever suggested that the ceremony were not in accordance with the custom in the village. Mr Wu challenged Tang Mou Chung's evidence on the basis that Tang Mou Chung was very young in 1951 and he could not tell what are the Three Documents and Six Rites (三書六禮), the traditional Chinese rites for marriage.

8. For reasons given below, I do not find it absolutely necessary to resolve the dispute as to the validity of the marriage between Tang Chi Fuk and Chan Ngan Ho. The cases show that even for Chinese customary marriage, there could be flexibilities and strict compliance with Three Documents and Six Rites may not be essential (see Kwan Chui kwok v Tao Wai Chun [1995] 1 HKC 374; Ng Kuk Mui v Yu Bik Fong Rebecca HCAP 2 of 1997, 29 April 2000). Further, even assuming that the ceremony did not satisfy the requirement of a customary marriage, it could still be valid as a modern marriage under Section 8 of the Marriage Reform Ordinance Cap. 178 (see Ng Ching Man v Ng Lai Wah [1996] 4 HKC 448). According to the evidence of Tang Mou Chung, there was an open ceremony held before more than two witnesses. I note that Tang Chi Fuk said in Paragraph 9 of his First Supplemental Affirmation that in 1971, he had asked Chan Ngan Ho whether she would agree to the registration of their marriage under the Marriage Reform Ordinance. This shows he himself recognized that marriage as either a customary marriage or a modern marriage. But he apparently laboured under a belief that if there were no registration, the marriage would not be regarded as lawful (see Paragraph 9 his First Supplemental Affirmation).

9. On the evidence, I prefer the account of Tang Mou Chung to that of Tang Chi Fuk. But it does not follow necessarily that the 2nd Plaintiff is an illegitimate son. Section 11(1) of the Legitimacy Ordinance Cap. 184 provides,

"Subject to the provisions of this section, the child of a void marriage, whether born before or after the commencement of this Ordinance, shall be treated as the legitimate child of his parents if at the time of the conception of the child (or at the time of the time of the celebration of the marriage if later) both or either of the parties reasonably believed that the marriage was valid."

10. Hence, even if the marriage between Tang Chi Fuk and Tam Yuen Lan was void by reason of the earlier marriage between Tang Chi Fuk and Chan Ngan Ho, if both or either of the parents reasonably believed that the second marriage was valid at the time of conception, the 2nd Plaintiff is deemed to be legitimate.

11. As mentioned, Tang Chi Fuk apparently laboured under the impression that the first marriage was invalid though that might be incorrect as a matter of law. On the evidence, it is clear to me at least Chan Ngan Ho reasonably believed that her marriage with Tang Chi Fuk was valid at the time of conception of the 2nd Plaintiff. The authority in China had found the documents submitted by Tang Chi Fuk to be in order before the second marriage was allowed to be registered. There is nothing to suggest that Tang Chi Fuk had informed Chan Ngan Ho that he had undergone an earlier valid marriage. Her evidence is to the contrary. She said she was told that Tang Chi Fuk did not undergo any ceremony with Chan Ngan Ho. I do not see any reason to doubt her credibility and I accept her evidence.

12. Therefore, by reason of Section 11(1), the 2nd Plaintiff should be regarded as the legitimate son of Tang Chi Fuk in any event. I see no reason why the ordinance should not be applicable in respect of Tso affairs insofar as legitimacy of a male descendant is relevant thereto. An analogy can be drawn with the Court of Appeal's decision in Liu Ying Lan v Liu Tung Yiu [2003] 3 HKLRD 249 as to the interface between legislation affecting status and the operation of Chinese customary law. As observed by Cheung JA at Para. 63 of that judgment, one must take into account of development in Hong Kong in the application of Chinese law and custom. That includes legislative development (see also the discussions of Cheung JA in Paragraphs 58 to 65).

13. In resisting the Plaintiffs' claim, the Defendant raised two main issues,

(a) whether membership of a Tso is a birthright as opposed to one formalities have to be gone through before a male descendant is admitted as member;

(b) whether an illegitimate son could only get half share as opposed to a full share.

14. On the first issue, the Defendant's own expert Professor Wejen Chang testified that membership of Tso is a birthright. On the other hand, Mr Yeung relied on the report of the Plaintiff's expert Dr Henry Hu and suggested that a male descendant needs to go through the ceremony of lighting the lantern to be admitted as member. The relevant paragraph in Dr Hu's report was dealing with the position of illegitimate child. I do not think Dr Hu testified to the effect that even for legitimate child, lighting of the lantern is essential.

15. Mr Yeung readily accepted that the authorities are in line with the view of Professor Chang, see Tang Kai Chung v Tang Chik Sang [1970] HKLR 276 at p. 279-80; Leung Kuen Fai v Tang Kwong Yu Tong [2002] 2 HKLRD 705 at Paras. 38 to 40.

16. The evidence as to actual practice is also consistent with that view. The Defendant himself testified that lighting of the lantern is not a necessary prerequisite for a male descendant to get a share in the distribution of the Tso income. A notice dated 29 July 2001 (at p. 211 of the Trial Bundle of exhibits) also suggested the same.

17. I prefer the view of Professor Chang on this point. Not only is it more consistent with authorities and evidence as to actual practice, it is difficult to see why formalities as to admission are essential to membership as a matter of principle (as opposed to administrative convenience). A Tso is set up for the benefit of all the male descendants of a focal ancestor and membership stems from descent instead of an admission process. The existing members had no right to exclude a male descendant from the Tso in the absence of specific provision to such effect when the Tso was established. There is no evidence that there is such a rule for Tang Nam Kai Tso. It follows that both the 1st and 2nd Plaintiffs are members of the Tso.

18. However, membership of a Tso may not be equivalent to an enforceable right to retrospective claim for a share distributed in the past. I shall come back to this issue later.

19. On the second issue, Professor Chang agreed that there was no provision dealing with membership of an illegitimate child in Tso under the Qing Code. He however drew an analogy with the relevant legislation dealing with succession. The Code cited by him is 大清律例「户律」「户役」「卑幼私擅用財」門例一:

「嫡、庶子男，除有官廕襲，先儘嫡長子孫; 其分析家财、田產，不問妻、妾、婢生，止以子数均分; 姦生之子，依子量與半分。如無别子，立應繼之人為嗣，與姦生子均分; 無應繼之人，方許承繼全分。」

This was translated as Section 88 Li 1 in Jamieson, Chinese Family and Commercial Law at p. 16 as follows,

"As regards children in general, hereditary official rank descends only to the eldest son and his descendants born in lawful wedlock, but all family property moveable or immoveable must be divided equally between all male children whether born of the principal wife or of a concubine or domestic slave. Also male children born of illicit intercourse shall be entitled to a half-share, or to equal share in event of a successor having been adopted through default of other children. If no legal successor is in existence, then such illegitimate son shall be entitled to succeed and receive the whole patrimony."

20. Professor Chang said that illegitimate child fell into the category of姦生之子 and he should therefore get half share only.

21. Dr Hu acknowledged this rule of succession and referred to it in Paragraph 6 of his report dated 8 August 2001. He argued that by reason of 1st Plaintiff going through the lighting of lantern ceremony in 1999, he should be regarded as having been accepted as a member of the Tso and not an illegitimate child. Dr Hu further opined that given the long period of cohabitation between Tang Man Lok and Wong Fun to the knowledge of Pang Ngan Mui, Wong Fun should be regarded as a concubine (妾) and the 1st Plaintiff as a son of a concubine. In his oral evidence in chief, Dr Hu also suggested that the rule under the Qing code had been modified by customs in respect of Tso in the New Territories in that all members, irrespective of legitimate or illegitimate descent, are entitled to full and equal shares.

22. I have difficulty with the contention that Wong Fun can be regarded as a concubine. The union between Wong Fun and Tang Man Lok took place in 1992. By then, due to the operation of the Marriage Reform Ordinance, Hong Kong law did not recognize concubinage acquired after 7 October 1971 (see Section 5 of that ordinance). I hold that the 1st Plaintiff is an illegitimate son by birth.

23. As regards the lighting of the lantern for the 1st Plaintiff, there are disputes as to validity of that ceremony. Tang Man Lok gave evidence that objections were raised at the time of the ceremony by reason of the illegitimate status of the 1st Plaintiff. Even assuming the ceremony to be valid, I cannot see how the holding of the ceremony could confer a status of legitimacy on the 1st Plaintiff if he is illegitimate by birth. The Legitimacy Ordinance does not provide for such a mode of legitimization and I am not satisfied on the evidence before me that there is any customary law to this effect.

24. The more pertinent question should be whether the Tso is estopped from denying that the 1st Plaintiff is only entitled to half share by reason of his status as illegitimate child. The ceremony (assuming it is valid) can be regarded as recognition by the Tso that the 1st Plaintiff is a member. However, a member entitled to half share is nonetheless a member. Hence, the holding of the ceremony cannot resolve the question as to the share to which the 1st Plaintiff is entitled.

25. The crucial question is whether as a matter of customary law, an illegitimate child is only entitled to half share. For reasons given in Paragraphs 70 to 73 in my judgment in Lee Sun Kiu v Ho Kay Fuk HCA 195 of 2001, 20 August 2004, I do not think the rules in the Qing Code on succession could be applicable by analogy to the affairs of Tso. The rule referred to in Paragraph 19 above has no application to the distribution of Tso properties.

26. Apart from the expert evidence based on the Qing Code, there is no evidence on any customary law distinction between legitimate and illegitimate children in terms of share entitlement in Tso properties. Dr Hu suggested that in the New Territories, there is a custom of distribution of equal share to illegitimate child. However, I find his evidence on this alleged custom unsatisfactory. First, he suggested that once a father publicly acknowledged a child, he would be regarded as legitimate under customary law. He said this was what Tang Man Lok did when he arranged for the lighting of the lantern for Tang Chun Kit. Dr Hu did not refer to any authority for this proposition. In fact, apart from the provision in the Qing Code cited in Paragraph 19 above, I was not referred to any authority on the question of legitimacy under Chinese customary law. That provision in the Qing Code does not refer to legitimization through lighting of the lantern. I am not satisfied on the evidence before me that the lighting of the lantern conferred a status of legitimated son on an originally illegitimate son under Chinese customary law. Second, Dr Hu referred to Tang Kai Chung v Tang Chik Sang [1970] HKLR 276 and Wong Choi-ho v Wong Ying-kuen [1969] HKLR 391. These cases did not deal with the question of illegitimacy nor the question of legitimization through lighting of the lantern. I do not derive any assistance from them on these topics.

27. In my view, there is simply insufficient evidence before this court to come to a definite view as regards customary law on how the Tso properties should be distributed as between legitimate and illegitimate children.

28. Whilst there is evidence as to distribution of Tso income to sons (細婆仔) born by spouses called the "junior spouses" (細婆) that had not gone through any marriage ceremony in the past, those were all unions prior to 1971. Mr Wu submitted that these junior spouses did not enjoy the status of concubines. I do not think that question have been fully explored in evidence. According to PW1, those junior spouses mostly lived in the same household together with the wife of the husband. They were known in the community as junior spouses of the husbands. PW2 was however able to refer to some instances where the junior spouse did not live together with the wife in the same household. The experts have not been asked to comment specifically on those instances. Dr Hu suggested in general that the distinction between a concubine and a mistress could be a very fine one. In any event, I do not consider the evidence on distributions of Tso income to those persons as cogent evidence of customary law regarding distribution of Tso income to illegitimate children. It seems to me to be more likely that the question of illegitimacy had never been raised in those days.

29. The Defendant himself said he had not encountered nor heard of a single instance where half share was distributed. Again, that is probably due to the fact that the question of illegitimacy had never been raised before.

30. In Kan Fat-tat v Kan Yin-tat [1987] HKLR 516 at p. 543 to 546, Deputy Judge Tang (as he then was) dealt with the difficulties in regarding evidence of isolated instances of actual practices as evidence of Chinese custom. After a very detail analysis, His Lordship concluded that he was unable to rely on that sort of evidence to come to a conclusion as to what the correct mode of distribution of Tso properties was according to Chinese custom. Although the context is different, I find myself in a similar difficulty. I have also alluded to the requirements in the proof of a custom enforceable in law in Paragraphs 36 to 39 of my judgment in Lee Sun Kiu v Ho Kay Fuk HCA 195 of 2001, 20 August 2004.

31. Mr Wu also referred to the evidence of Tang Man Lok. Since his evidence was based on distributions to細婆仔, I do not think that takes the matter further.

32. I am therefore faced with the difficulty that there is no reliable evidence on customary law or Chinese customs in respect of the share to be distributed to an illegitimate son in respect of Tso income. As I said, it is most likely that the issue had not crossed the mind of those involved in the Tso affairs. Prior to Professor Chang's reference to the rule in the Qing Code cited in Paragraph 19 above, the dispute in the present case seems to focus solely on whether an illegitimate child could be regarded as a member of the Tso.

33. On the evidence before me, I cannot say under Chinese customary law whether there is any distinction between legitimate child and illegitimate child in the distribution of Tso properties. Further, the practice may not be the same in respect of distribution of annual income (like the distribution of ceremonial pork) and distribution of sale proceeds (c.f. Kan v Kan at p. 543A to D and 546 E to J). In fact, I cannot even say whether there is any legally enforceable Chinese custom in that regard. I suspect that the issue has not been tested before any court of law.

34. Having come to this conclusion, I cannot grant any declarations as to the share the 1st Plaintiff is entitled. That is not a satisfactory result from the parties' point of view. Mr Yeung indicated that the Defendant would wish to obtain some guidance from the court as to how the Tso properties are to be administered. As the matter stands, the best guidance I can give is as follows,

(a) All male descendants, whether legitimate or illegitimate, have birthrights to be recognized as a member of the Tso;

(b) There is no applicable Qing Code on whether there is any distinction between legitimate and illegitimate sons in the distribution of Tso properties. Neither could the provision set out in Paragraph 19 above be applied by way of analogy;

(c) The distributions of Tso income to the sons born to the junior spouses do not constitute cogent evidence as to the existence of an enforceable custom of distribution of equal share to illegitimate son;

(d) In the absence of any enforceable custom or customary law on the topic, the matter would be governed by the general law.

35. On the last point, counsel have not addressed me on the position in the event that this court is not satisfied with the existence of any enforceable custom or customary law on mode of distribution. There are two options: (1) the court can refuse to grant any declarations regarding the mode of distribution and leave the issue to be sorted out in future litigation if necessary; or (2) the court can invite further submissions from parties and decide the matter in the light of those submissions. Bearing in mind the nature of the proceedings and its possible ramifications as to the administration of the Tso, it would be unfortunate if the court were to adopt option (1) even though that could be avoided. However, I do not think I should come to a final view on which option to adopt before hearing parties. I shall therefore direct as follows,

(a) the matter be restored for directions at a 9:30 am hearing on a date to be fixed;

(b) in the meantime, parties should liaise with each other to see whether option (1) or (2) should be adopted. If there is consensus, parties should also liaise about the future conduct of the matter. If possible, directions by consent could be given.

36. As regards the retrospective claims for shares distributed in the past, the evidence shows that distribution was made to all members registered in the records of the Tso. Mr Wu indicated to this court that the Plaintiffs are not pursuing those claims against the Defendant as trustee personally. Instead, the Plaintiffs wish to pursue against the Tso. For each distribution, calculation of the share was made by reference to the then prevailing number of registered members. Those advising the Plaintiffs apparently have not thought through the implications of the relief they are seeking in terms of these retrospective claims. As this court put to Mr Wu in the course of the trial, if the Plaintiffs are seeking to recover their shares retrospectively, that would amount to unraveling all the past distributions. The recipients might have to account back to the Tso the excess they have received over the years. Those persons might have already spent the sum a long time ago. In any event, they are not parties to these proceedings and no notice of such possible claims has been given to them.

37. Mr Wu sought to deal with that objection by contending that the Plaintiffs could undertake to confine their claims to properties now held by the Tso. In this connection, the Defendant gave evidence that for each distribution, some surplus was retained by the Tso. However, because the Plaintiffs had not clearly formulated their case in this regard at that stage, there is no evidence as to how much assets were retained by the Tso and whether the surplus was intended for some other purposes. There is also no evidence as to how many distributions had occurred since the respective birth of the 1st and 2nd Plaintiffs and to what extent they or their guardians had protested at the time of each distribution.

38. More fundamentally, in the case of the 2nd Plaintiff, the evidence showed that it was due to the personal circumstances of his late father that no application for adding his name to the registered membership had been made. Although Tang Chi Fuk mentioned objections from some elders in Paragraph 6 of his statement of 24 November 2000, it is by no means clear whether the views of those elders represented the view of the Tso. I am unable to be satisfied on the evidence that notice had been given to the Tso as to the 2nd Plaintiff's membership and it was due to the fault of the Tso or its managers that the 2nd Plaintiff was not registered as member before the present legal proceedings were commenced.

39. It is not the Plaintiffs' case that the manager of a Tso had a duty to conduct a full enquiry as to the membership of the Tso before distribution of income is made. There is no evidence to suggest Chinese custom dictates such an enquiry. In fact, I am not aware of any instance where such an enquiry had been conducted by any Tso on its own motion in Hong Kong. Given that the Tso has many members and some of them are not in Hong Kong, such a duty (if any) would indeed be an onerous one and the exercise could also be costly and time-consuming. There is an established procedure for registration of members in the records of the Tso. The evidence also showed that notice would be posted by the Tso before each distribution. Hence, those members who have not yet been registered could have done so. Those responsible for administering the Tso properties relied on such records to determine the amount to be distributed. This seems to me to be a sensible procedure so long as the manager does not unreasonably obstruct or refuse the registration of a member. To hold that a distribution in accordance with such long-standing practice is liable to be challenged because of the non-registration of a member through no fault on the part of the Tso would bring about mischievous results. I will be loath to upset such established practice unless the law does not permit this to be done.

40. I have heard no argument nor am I aware of any principle of law which invalidates such traditional practice in the calculation for distribution of Tso income. It has to be appreciated that membership of Tso is one thing. The right to payment of a share in the Tso's distributable income is another thing. Although membership of a Tso is a birthright, I am of the view that a Tso is perfectly entitled, for administrative convenience, to require registration before a member could claim a share in the distribution of its income. Of course, a manager cannot unreasonably and unlawfully refuse a proper application for registration and if that occurs, the manager might find himself personally liable to the aggrieved member.

41. In such circumstances, even though I hold the 2nd Plaintiff to be a legitimate child and there cannot be any dispute as to his membership and entitlement to a full equal share, it is questionable whether he could recover retrospectively in respect of past distributions. I agree with Mr Yeung that it would not be appropriate for the court to grant a declaration in terms of Prayer 4 given the inherent unresolved disputes on the question. I respectfully adopted what is said in Woolf, The Declaratory Judgment, 3rd Edn., Para. 4.114,

"If ... it appears that the relief sought by the claimant, even if wholly granted, will not settle the conflict, the court may decline to give it. This will be the position where, for example, it seems that the claimant, in order to give effect to his declared right, will have to obtain further relief which is not, or for some reason cannot be, claimed in the declaratory proceedings."

The Plaintiffs did not claim monetary awards nor an order for account in these proceedings. Such claims would require further investigation based on the principles set out above as to the validity of requirement of prior registration. Some of the parties who might be affected were not notified. I therefore refuse to grant any declaration in terms of Prayer (4).

42. As regards the 1st Plaintiff, I have found that the mere fact that he is an illegitimate child should not exclude him from membership. Further, at least from the date of the lighting of lantern ceremony in 1999, his father had made it clear that 1st Plaintiff wished to be registered as a member. However, given the outstanding issue as to the share of his entitlement as an illegitimate child and there were bona fide disputes between the manager and the 1st Plaintiff as to his legitimacy, these have bearing on the reasonableness of the manager in failing to register him as a member in the meantime. There are also unresolved problems as to the non-joinder of parties who might be affected and the lack of evidence on surplus kept by the Tso. Again applying the principle set out in Paragraph 41, it is inappropriate to grant any declaratory relief for retrospective distribution in favour of the 1st Plaintiff.

43. Hence, the only declarations that I am prepared to make at this stage are declarations in terms of prayers (1) and (3). Further, by reason of my conclusion that the 2nd Plaintiff is a legitimate son of Tang Chi Fuk, there cannot be any dispute as to his entitlement in the future. As regards the entitlement of the 1st Plaintiff in terms of distribution, the matter will have to be proceeded with in accordance with my directions in Paragraph 35 above.

44. I shall hear parties on costs at the forthcoming direction hearing.