LEE SUN KIU v. HO KAY FUK

HCA 195/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 195 OF 2001

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J U D G M E N T

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The actions

1. The Plaintiff in these two actions is the widow of Ho Wing, alias Ho Yan Tat. Ho Wing died in or about 1942 during the Japanese invasion. He was the eldest son of Ho Fung Cheung (何鳳翔). The Hos had been living in San Wai (新圍) Ki Ling Ha Village (企嶺下村), Sai Kung. They were the descendants of Ho Wing Shing (何永盛).

2. Ho Wing Shing, according to a Genealogy of the Ho Clan, belonged to the 24th generation. The Genealogy, 廬郡何氏宗譜 traced the Ho Clan to its first generation ancestor 何大郎. The first member of the clan who settled in Hong Kong was Ho Tsz Lam (何仕林) of the 21st generation. That was before 1898 and Sai Kung was at that time within the San On County (新安縣) of the Guangzhou Municipality (廣州府). He was the common ancestor of the Hos in San Wai (新圍) and Lo Wai (老圍) of Ki Ling Ha Village (企嶺下村), Sai Kung.

3. These two actions concerned the proceeds of sale of some land owned respectively by three Tso/Tongs: Ho Wing Shing Tso (何永盛祖), Ho Sam Hing Tong (何三慶堂) and Ho Kwan Lok Tong (何鈞樂堂). According to the Agreed Facts between the parties, these three Tso/Tongs were organizations that held land in the New Territories and they were set up for ancestral worship. Ho Wing Shing Tso and Ho Sam Hing Tong were set up by the three sons of Ho Wing Sing: Ho Kwong Kau, Ho Kwong Ying and Ho Kwong Yuk. Membership of the two were identical, viz. they are all descendants of Ho Wing Sing. It is common ground that all the male descendants of Ho Kwong Yuk died during the Second World War and that line had become extinct.

4. Ho Kwan Lok Tong was set up in the 1930's by Ho Tai Kwan (何泰鈞), a grandson of Ho Wing Sing. Membership is confined to the descendants of Ho Tai Kwan.

5. Ho Tai Kwan had 3 sons: Ho Fung Leung (何鳳良), Ho Fung Sum (何鳳森) and Ho Fung Cheung, the father-in-law of the Plaintiff. The Defendant is the son of Ho Fung Leung and he was appointed as manager of these Tso/Tongs in 1991 and 1992 respectively.

6. Apart from Ho Wing, Ho Fung Cheung had two other sons: Ho Mou Tat (何茂達) and Ho Loi Fat (何來發). They were all dead and left no male issue. Their wives had remarried. As regards Ho Wing and the Plaintiff, they also had no male issue. Three of their daughters are still living. The Plaintiff never remarried. Nor did she adopt any son for Ho Wing. The last male issue from Ho Fung Cheung's branch of the family, viz. Ho Loi Fat, died in 1954.

7. By an agreement dated 23 August 1993, the Defendant as manager of Ho Wing Sing Tso and Ho Sam Hing Tong sold some of the land of these Tso/ Tong at the price of $5,710,716. The proceeds of sale were deposited into a joint account in the names of the Defendant, Ho Tin Po and Ho Bing. The latters were representatives of other fongs.

8. By an assignment dated 15 July 1994, the Defendant as manager of Ho Kwan Lok Tong sold some land of that Tong at the price of $5,357,712. Out of the proceeds, $4,200,000 was distributed amongst 6 members of Ho Kwan Lok Tong, each getting $700,000. The balance was kept in a bank account. According to the Defendant's evidence, in 2001 the balance including interest exceeds $1,400,000.

9. As regards the proceeds of sale of Ho Wing Sing Tso and Ho Sam Hing Tong, there was a distribution in 2000. By 25 April 2000, the sum including interest was accumulated to $7,417,940.20. After a meeting, it was resolved that $6,000,000 was to be distributed. The share distributed to those descendants of Ho Tai Kwan was $1,200,000 and the money was transferred into the account of the Defendant. Out of the said sum, $600,000 was distributed amongst the 6 living grandsons of Ho Tai Kwan.

10. The Plaintiff did not get any share from those distributions. In 1995, she had instructed a solicitors firm Messrs. Livasiri & Co to demand her share of the proceeds regarding the sale of the land of Ho Kwan Lok Tong from the Defendant but to no avail. By a letter dated 12 June 1995, the Defendant through his solicitors refuted the Plaintiff's claim and asserted that only male descendants were entitled to share in the sale proceeds. Enquiries were also made on her behalf by this firm and later by another solicitors firm in 1995. Despite that, the Plaintiff did not institute any legal proceedings at that stage.

11. In 2000, after the distribution of the $600,000, a daughter of the Plaintiff went to see the Defendant and demanded the Defendant's share regarding the sale of the land of Ho Wing Sing Tso and Ho Sam Hing Tong. The Defendant said after he had consulted others in Ho Kwan Lok Tong, it was decided to give $100,000 to the Plaintiff by way of ex gratia payment. $100,000 was therefore given to the Plaintiff on 10 August 2000.

12. In January 2001, the Plaintiff commenced action in High Court in HCA No.195 of 2001 ["HCA 195"] to seek the following relief against the Defendant regarding the proceeds of sale in the land of Ho Kwan Lok Tong,

(a)	a declaration that she was and is a member of the Tong and that the Defendant holds in trust for her as tenant in common in equal shares of the sale proceeds together with the other descendants of Ho Tai Kwan;
(b)	payment of $1,666,666.67 being what the Plaintiff reckoned to be her share.

By a late amendment made on 3 February 2004, the Plaintiff added an alternative prayer, viz. a declaration that the Plaintiff is entitled to receive the sum of $1,666,666.67 from the Defendant by virtue of her position as the de facto head of the family of Ho Wong.

13. In respect of Ho Wing Shing Tso and Ho Sam Hing Tong, the Plaintiff commenced an action in the District Court in DCCJ No.886 of 2001 seeking the payment of $300,000 as the balance of her entitlement. The action was subsequently transferred to the High Court and became High Court Action No.3998 of 2002 ["HCA 3998"]. Unlike the prayers in HCA 195, there is no prayer for declaratory relief.

14. The two actions were tried before me at the same time.

15. Although a number of factual witnesses had been called during the trial, it seems to me that the central issues in these cases are primarily questions of law. The key issue is whether the Plaintiff as the widow of Ho Wing was entitled to demand the Defendant to take into account of Ho Wing's share or alternatively the share of Ho Fung Cheung's fong in dealing with the sale proceeds of these Tso / Tong properties notwithstanding that there is no living male descendants of Ho Wing or Ho Fung Cheung. Both sides called expert evidence on Chinese customary law to support their respective contention.

Local customs

16. Before I deal with the expert evidence, I need to resolve some factual disputes. The Plaintiff said she had been permitted to cultivate the Tso properties by rotation after the death of her husband. She is now 95 years old and she was not very precise about the dates when she ceased cultivation. She said she cultivated the land until she was about 70 years old. But that could not be true because it is common ground that the land were not suitable for cultivation after the construction works of the Plover Cove reservoir in the vicinity commenced in the 1960's. She testified that the land she cultivated belonged to Ho Wing Shing Tso and there were 4 to 5 pieces of such fields. In addition, she also cultivated her own land, viz. land under the name of Ho Fung Cheung. She said she cultivated the land on her own without the assistance of any other parties. Half of the produce from the Tso land were given to the Tso whilst the other half was kept by her.

17. Ho Tin Po (PW2) gave evidence supporting the Plaintiff in this respect. He also explained the system of rotation for Ho Wing Shing Tso. He said rotation was by reference to the number of male descendants in the particular generation. At the material time, he said the rotation was by reference to Ho Fung Cheung's generation. There were altogether 8 male descendants and therefore the rotation was once every 8 years. He agreed that during the lifetime of Ho Loi Fat, he would be the male descendant of Ho Fung Cheung who could take up the cultivation of the Tso land when it came to Ho Fung Cheung's turn. He also agreed that the female members of Ho Fung Cheung's family could take part in the cultivation. He accepted that that would not make them a member of the Tso or Tong.

18. He is not a member of Ho Kwan Lok Tong but he said he had saw the Plaintiff cultivating the land of Ho Kwan Lok Tong.

19. Under cross-examination, Ho Tin Po admitted that he left Hong Kong for England in 1956. He first visited Hong Kong in 1966 and thereafter once every year or every two years up to 1970. His visits were usually in about end of September after the fields had been harvested. Hence, his evidence is not too helpful with regard to the cultivation of the Tso land after 1956. It is not clear from the evidence which was the last year that was Ho Fung Cheung's descendants' turn to cultivate before the death of Ho Loi Fat in 1954. Bearing in mind the system of rotation and the short time gap between the death of Ho Loi Fat and Ho Tin Po's departure from Hong Kong, I do not find his evidence of much assistance as to the extent to which the Plaintiff cultivated the Tso land after 1954.

20. PW3 Ho Yuk Ching was a daughter of the Plaintiff. She testified that her mother cultivated the land of Ho Wing Shing Tso once every three years and the land of Ho Kwan Lok Tong once every year. She said some of the fongs did not cultivate and the Plaintiff took up their turns as well. She herself had moved out of the village in 1957 although she visited the village during weekends and holidays. Under cross-examination, she agreed that since about 1960 when the daughters had moved to live elsewhere, the Plaintiff did not cultivate the Tso land as she only had capacity to cultivate the land of Ho Fung Cheung.

21. Ho Fung Cheung had a number of land holdings and in May 1961, they were transferred to the name of the Plaintiff by a memorial No.144076. A document called "Rent Roll" issued by the New Territories Administration dated 10 November 1961 certifying the Plaintiff as the registered owner of these properties can be found in the trial bundle (p.A71). Judging from the size of these plots of land set out in that document and the prices at which some of them were sold subsequently in between 1989 and 1993, they were of considerable size. Without the assistance of her daughters, even taking into account that some of these were land on which the family house was erected, it is indeed unlikely that the Plaintiff could cultivate other fields in addition to these lands under the name of Ho Fung Cheung.

22. The Defendant disputed the Plaintiff's evidence as to the cultivation of Tso land. But he admitted that he had left Hong Kong for England in 1958. He visited from time to time. He said after the death of Ho Loi Fat, the Plaintiff simply did not have the manpower or capacity to cultivate land other than those under the name of Ho Fung Cheung.

23. I have no doubt that the Plaintiff did not cultivate the Tso land after 1960 (PW3 accepted that in her evidence). Therefore, we are only talking about such cultivation between 1954 (death of Ho Loi Fat) and 1960. On the whole, I do not find the evidence of Plaintiff's cultivation of Tso land to be satisfactory. The Plaintiff's evidence was too vague and general. The objective fact was that the Plaintiff had to cultivate the land of Ho Fung Cheung and there is no evidence that she solicited the assistance of people other than her family members to do so. Her daughters got married and moved out of the village around 1957 to 1960. Bearing in mind the factor of rotation and the lapse of time, I find on the balance of probability that although the Plaintiff might have cultivated the Tso land occasionally between 1954 and 1960, I do not believe that the extent was as testified by PW3.

24. More importantly, I do not think such cultivation could be taken as admission by the Tso or Tong that the Plaintiff was its member. Given the loose arrangement in the village and the emigration of some of the descendants from the village, it is not surprising that the Plaintiff was permitted to cultivate the Tso land when nobody else wanted to do so. The Tso would also benefit from the contribution made to it in term of a share of the produce derived from such cultivation. It would, however, be unjustified to infer from such cultivation that the Tso or Tong thereby modified their traditional rules as to admission of membership to the Tso or Tong. It could not have been the intention of whoever managing the Tso or Tong at the material time to make such important changes without consulting all the members and there is no evidence of such consultation. I think the question of membership falls to be determined by reference to customary law and the fact that the Plaintiff had been permitted to cultivate the Tso land during those few years had little significance for that purpose.

25. Another matter relied on by the Plaintiff is the inclusion of her name in some lists of members filed with the Tai Po District Office. These included a list bearing a signature by Ho Fung On in December 1963 apparently in connection with his application for appointment as manager of the Ho Wing Sing Tso. Another list was one in respect of Ho Sam Hing Tong dated 18 January 1963 bearing the signature of Ho Fung Leung. A third list was dated 24 September 1962 filed in connection with Ho Kwan Lok Tong bearing the signature of Ho Fung Leung. According to the records in the files of the District Office, the applications were not proceeded with as the consent letters required by the District Officer were not submitted. Although notices of these applications for appointment as managers had been posted up in the village notice board, the evidence suggested that the member lists were not posted.

26. During the early 1960's, the evidence showed that quite a number of male descendants of the village had emigrated to live abroad, In the absence of any evidence that these lists had been circulated amongst all the members before they were submitted, I do not regard them as evidence of acceptance or acknowledgment by all the then members of the Tso or Tong that those whose names were on the list were members.

27. There were in fact other documents filed with the District Office (including documents signed by persons other than the Defendant) which did not include the name of the Plaintiff as members of the Tso or Tong.

28. I do not think one can attach too much weight on these lists. It seems that the information in the lists had not been verified independently. There is no concrete evidence as to how the lists were compiled and the steps taken by the person who compiled the same to ensure their accuracy. In my judgment, taken to their highest, they could only be regarded as evidence of acceptance or non-acceptance of the Plaintiff as members of the Tso and Tong by the signatories of the respective list. These lists could not be conclusive and had no binding effect on those who did not append their signatures to the same.

29. The same could be said with regard to the declarations contained in the formal sale and purchase agreements of the Tso and Tong land in 1993 and the letters of consent executed by the members of the Tso or Tong confirming that those in the respective list were all the members of that Tso or Tong. It is fair to note however that the number of signatories subscribed to these declarations is larger than those who signed the lists of members in 1960's.

30. At the trial, the Defendant was unable to offer any explanation as to why Ho Fung On signed the list of 12 December 1963 and he disowned what he said in Paragraph 10 of his witness statement dated 21 September 2001 and in Paragraph 8 of his Supplemental Statement dated 27 January 2003 (in reply to Ho Tin Po's statement) filed in High Court Action No.195 of 2001 concerning Ho Fung Leung's signature of the list of 24 September 1962. The Defendant claimed in the witness box that he first saw the list of members for Ho Wing Shing Tso of December 1963 when he testified.

31. Ho Fung Leung and Ho Fung On had been the heads of the village (村長) of San Wai in 1950 to 54 and 1955 to 1979 respectively. Ho Fung Leung had been appointed as a co-manager in respect of Ho Kwan Lok Tong on 13 August 1957. Mr Li submitted that considerable weight should be given to their acknowledgments of the Plaintiff as a member of these Tso and Tong in the respective list of members. He also referred to the fact that the status of the Plaintiff as a member of Ho Wing Sing Tso was supported by a number of members as evidenced by a document signed by 6 male descendants dated 23 August 2000.

32. I do not attach any weight to the document dated 23 August 2000. All the signatories to that document had also executed documents pertaining to the sale of Ho Wing Sing Tso's land to Citiyork Limited in August 1993. Ho Bing and Ho Tin Po executed the agreement of 23 August 1993 as guarantors declaring and warranting that all the beneficiaries to the Tso had been named in the Third Schedule and the name of the Plaintiff was not included. As regards the other four signatories, they (as well as Ho Bing and Ho Tin Po) had signed a document in support of the Defendant's application to the District Office for consent to sell the land in December 1993. The document acknowledged that those named in the consent form were all the members of the Tso and again the name of the Plaintiff was not included. Apart from Ho Tin Po, none of them gave evidence before me. Although Ho Bing's witness statements had been filed in these actions, he passed away before the trial. He did not account for the execution of the documents in 1993 in his witness statement.

33. When Ho Tin Po gave evidence, he was cross-examined by Mr Mak about the said warranty given by him in 1993. He tried to explain that in 1993, he was only concerned about the accuracy of the warranty in respect of members in his fong and it was up to the Defendant to check the accuracy in respect of Ho Tai Kwan fong (to which the Plaintiff should belong). I do not find that explanation to be convincing. According to his evidence, he was aware that the Plaintiff's name was not included. It should also be apparent from the consent form that the Plaintiff had not been consulted regarding the sale. He surmised that because the Plaintiff was old and illiterate, those in Ho Tai Kwan fong thought she could be neglected. But he was prepared to go along with that in 1993. Although he thought the Plaintiff might not know about the sale, he did not do anything to alert her to it prior to the sale. In my judgment, his conducts in 1993 were incompatible with an assertion that he always recognized the Plaintiff as a member of the Tso. As a senior member in the Tso who was asked to give a warranty as to membership in the Tso, if he really did regard the Plaintiff as a member of the Tso in 1993, he should at least voice some concern about the omission of the name of the Plaintiff in the documents.

34. As regards the member lists signed by Ho Fung Leung and Ho Fung On, there is no evidence as to the basis on which they included the name of the Plaintiff in those lists. Even bearing in mind that they were heads of the village at the material time, I do not regard the member lists signed by them constitute cogent evidence of the existence of an alleged local custom recognizing widow as members of the Tso.

35. This is particularly so when the alleged custom is apparently inconsistent with the general practice prevailing in the New Territories concerning exclusive male membership of Tso and Tong as set out by Mills-Owens J in Tang Kai-chung v Tang Chik-shang [1970] HKLR 276 at p.279-280 (which had been applied repeatedly in subsequent cases, see for example Kan Fat-tat v Kan Yin Tat [1987] HKLR 516 at p.522; Leung Kuen Fai v Tang Kwong Yu [2002] 2 HKLRD 705). As to the taking of judicial notice of Chinese customary practice in the New Territories by reference to decided cases, Liu J (as he then was) had explained its rationale in Yeung Chi-ding v Yeung Tse Chun [1986] HKLR 131 at p.137G to J. See also Yam J's judgment in To Kan Chi v Sik Kwok Wah HCMP 562 of 1992, 26 November 1998, Para.4.7; Phipson on Evidence, 15th Edn. Para.2-13.

36. In Kan Fat-tat v Kan Yin Tat [1987] HKLR 516, the court had to consider what was the custom as to the mode of distribution of proceeds of sale of Tso land, viz. whether it was per stirpes or per capita. Deputy Judge R Tang (as he then was) held that although a custom enforceable as a customary right under Section 13 of the New Territories Ordinance needs not be reasonable nor traced back to 1189 (see p.541E), it has to be certain, continuous and of sufficient antiquity (see p.546F to G). By certainty, His Lordship meant that the custom must be certain in respect of its nature generally as well as in respect of the locality where it is alleged to obtain and the persons to whom it is alleged to affect (see p.541D). The learned judge considered the question on two different levels: (a) custom of a specific locality, viz. Tsang Pak Long Village; and (b) custom in the New Territories as a whole.

37. Mr Mak was content to argue this case on the basis that a custom of a specific locality (say a village) which conflicts with the general custom in the New Territories could still receive recognition by the court under Section 13. In view of Kan v Kan and the position of the parties, I shall assume (but without deciding) that this is correct although I note that there are conflicting views in this regard (see Stephen Selby Everything you want to know about Chinese Customary Law (1991) 21 HKLJ 45 at p.52, contra Peter Wesley-Smith, The Sources of Hong Kong Law p.217-8).

38. Mr Mak submitted that the personal view of one person, or even one generation of elders, would not be sufficient per se to establish customary rights enforceable under Section 13. I agree. That is self-evident from the requirement of antiquity and continuity.

39. Further, the requirement of certainty implies that the alleged custom must have been well known to those affected by it and applied by them consistently over the years.

40. Mr Li referred to two other matters as evidence of the alleged local custom that a widow was regarded as a member of a Tso or alternatively, as having a right to a share in the sale proceeds of Tso property in Sun Wai. The first is the succession of the Plaintiff to the lands of Ho Fung Cheung. With respect, I fail to see the relevance of that. It was not suggested that the land that formed the subject matter of that succession were Tso land. Irrespective of the validity of that succession, it had nothing to do with the Plaintiff's alleged membership to ancestral Tso or Tong. Mr Li acknowledged that the right of a widow to succeed to her deceased husband's property and the right of a widow to receive a share in a Tso's property are two separate questions (see Paragraph 3.5 of his Closing Submission).

41. Based on the evidence of Professor Chang, Mr Li advanced a submission that there was no distinction between family property and Tso property. I shall deal with that at greater length later. In short, I am of the view that in the context of membership of a Tso, there is a material distinction between family property and Tso property. I do not think the succession of the Plaintiff in 1961 can be regarded as evidence of the alleged local custom.

42. The second matter relied on by Mr Li was certain dealings in respect of Ho Fung Biu Tso at Lo Wai. According to a memorial No.126442 registered at the District Office, there was an instrument described as "Succession to Property" on 18 September 1950. Parties to the instrument were stated in the memorial to be Ho Fung Biu, deceased and Ho Fung Biu Tso with Ho Li Shi as its manager. The latter was described as the successor of the properties particularized in the memorial. PW4 Ho Chun Wing gave evidence about this transaction. He testified that Ho Li Shi was the daughter-in-law of Ho Fung Biu. Her husband was Ho Leung, the only son of Ho Fung Biu. PW4 said the memorial evidenced that Ho Li Shi was allowed to succeed to the properties of Ho Fung Biu and upon such succession, set up Ho Fung Biu Tso. He referred to this transaction as an illustration that a widow was a member or had a share in Tso property. In 1982, there was another memorial of an instrument which appointed Ho Kwai-sau as the manager of Ho Fung Biu Tso in place of Ho Li Shi. Apparently, Ho Li Shi had died by 1982 because the memorial referred to her as deceased. According to PW4, Ho Kwai-sau was the nephew of Ho Fung Biu. He said Ho Li Shi and Ho Leung did not have any issue.

43. It is plain to me that PW4 did not have any personal knowledge as to these transactions concerning Ho Fung Biu Tso. Although he is the manager of, inter alia, Ho Siu Wai Tso, to which Ho Fung Biu was a member, PW4 was born in 1953 and he went to England to further his study in 1971. He came back to Hong Kong in 1991. He had not met Ho Li Shi and did not know when did she die. Neither had he ever met Ho Leung. Although he had met Ho Kwai-sau, it is obvious that he did not know him very well. PW4 testified that as early as he was about 3 to 4 years old, Ho Kwai-sau had already moved out of the village to live in Sai Kung town. Hence, he did not know how old Ho Kwai-sau was nor the names of his children. PW4 had not discussed with Ho Kwai-sau about the setting up of Ho Fung Biu Tso. He only learnt of Ho Fung Biu Tso in 1992 when there was an announcement posted at the notice board of Lo Wai by the District Office concerning the transfer of the properties of that Tso. He had no chance to study the file of Ho Fung Biu Tso kept at the District Office.

44. Apart from these two memorials, PW4 was unable to point to other source of information for his evidence about these transactions relating to Ho Fung Biu Tso. He was an estate agent by profession and he said he had developed an interest in Tso affairs in 1992. He is however not an independent witness. He was a nephew of PW3 and he was asked by her to assist the Plaintiff in the present case in 2002. The evidence also showed that his application for appointment as manager of Ho Sze Lam Tso had not been successful due to opposition from people in Sun Wai including the Defendant. He only learnt of memorial No.126442 one or two months prior to the filing of his statement of 30 January 2004. He had no academic background in the study of Chinese customary law but he said he had learnt about customs regarding the Hos in Ki Ling Ha Village from elders. The Plaintiff did not put him forward as an expert witness.

45. In my judgment, whilst PW4 did have some general knowledge about customary practices in Lo Wai, he is not qualified to give opinion evidence about customary law. As demonstrated by Mr Mak in cross-examination, there are customary practices in Sum Wai and Lo Wai which PW4 was not familiar with. As regards his evidence about Ho Fung Biu Tso, I am prepared to accept his evidence about the relationship between Ho Li Shi and Ho Fung Biu and her absence of issue as part of his general knowledge about the affairs in the village. However, I do not accept the conclusions he drawn from the memorials. It is purely a matter of surmise on his part that Ho Li Shi was accepted by those affiliated to Ho Fung Biu as a member of an ancestral Tso in her capacity as widow. There is no evidence as to the circumstances under which Ho Li Shi got appointed as manager. Further, given the lack of issue by Ho Leung, there was no descendant of Ho Fung Biu to carry on with the male line for the focal ancestor. In the circumstances, it is doubtful whether Ho Fung Biu Tso could continue to operate as an ancestral Tso. The family appeared to be extinct in the absence of any customary adoption of heir for Ho Leung. The background leading to the appointment of Ho Kwai-sau as manager in 1982 was unknown. It may be that Ho Kwai-sau was adopted as an heir for Ho Leung. But that is again a matter of speculation.

46. In any event, taking to their highest, the memorials only showed that Ho Li Shi was appointed as a manager of the Tso. They did not show that she was recognized as a member or had a share in the Tso properties. I note that neither Professor Chang nor Dr Hu referred to these memorials as evidence of customary practice concerning the right of a widow in Tso membership or her share in Tso properties.

47. Mr Li referred to Li Tang Shi v Li Wai-kwong [1969] HKLR 367 and suggested that the arrangement in Ho Fung Biu Tso was the same as the Tso in that case. That may or may not be correct. As I said, there is insufficient evidence concerning the affairs of Ho Fung Biu Tso to enable this court to make any meaningful findings as to what exactly happened in 1950 and 1982. Further, even if Mr Li were correct, the decisions of Briggs J in Li Tang Shi were that a widow could not succeed to land (see p.375) and a widow who was appointed as manager of a Tso did not hold the property beneficially. She must keep it intact for a successor who must be a member of the husband's family (p.376). The case therefore does not offer any assistance to the Plaintiff in establishing the alleged local custom.

48. PW4 asserted in Paragraph 14 of his witness statement of 30 January 2004 that there was a local custom in Sun Wai and Lo Wai that a widow without an heir who did not remarry would still be treated as a member or having a share in Tso. He only gave two specific examples to support his claim. The first was the case of Ho Li Shi which I have already dealt with. The second was the case of the Plaintiff. For that, PW4 referred to the member lists mentioned above. I have explained why I did not regard PW4 as an expert witness. Hence, his evidence should only be confined to evidence of fact. For the reasons given earlier, I do not think the member lists provided cogent support to his claim. PW4 also referred to certain provisions in the Qing Code. Since he is not an expert, I attach no weight to his interpretation of the Qing Code. I shall come back to those provisions when I dealt with Professor Chang's evidence.

49. In the circumstances, I do not attach any weight to PW4's assertions of local custom as to membership or share held by a widow in Tso properties.

50. Likewise, the assertions by the other factual witnesses (including witnesses called by the Plaintiff as well as those called by the Defendant) as to local custom were, in my judgment, no more than assertions of personal subjective views. I do not find it necessary to deal with them one by one. Suffice to say that I do not find such evidence helpful in determining whether there was any local custom on a widow's membership of Tso as alleged by the Plaintiff.

51. On the whole, I am not satisfied on the balance of probabilities that there was such a custom as alleged by the Plaintiff. The matters relied upon by the Plaintiff fell far short of meeting the requirements of antiquity, continuity and certainty. The Plaintiff's claim based on the alleged local custom fails.

Extinction of Ho Fung Cheung's line

52. Another factual issue that I feel necessary to address is the cessation of the male line for Ho Fung Cheung. I mentioned this in Paragraph 6 above. Despite the survival of the Plaintiff, it is no longer possible for her to adopt an heir for Ho Wing to continue the male line. First, the Court of Appeal in Liu Ying Lan v Liu Tung Yiu [2003] 3 HKLRD 249 held that since 31 December 1972, posthumous adoption could no longer be carried out.

53. Second, the Plaintiff herself demonstrated by her conduct that she would not adopt any heir for Ho Wing. Between 1989 and 1994, the Plaintiff sold some of the lands previously owned by Ho Fung Cheung and distributed the sale proceeds to her daughters. She also transferred some parcels of land to two daughters by way of gift. According to PW3, the Plaintiff had no intention to adopt any heir and the properties were distributed to the daughters for fear of the same being seized by other relatives.

54. According to the expert evidence of Professor Chang, under the relevant Qing Code, such a distribution could only be made upon the extinction of the family. The relevant codes are as follows,

(a)	大清律例 「户律」「户役」「立嫡子違法」例二:
	「婦人夫亡，無子守志者，合承夫分，須憑族長擇昭穆相當之人繼嗣。」
	The learned professor translated this to read,
	"Where a married woman, after her husband died, leaving no son behind, remains unmarried and loyal to him, she is to receive his share of his family property but ought to, with the assistance of the head of his clan, select a male from an appropriate generation relative to him to be his heir."
	He further explained that the reception of the property under the concept of " 承" in the expression "合承夫分" is not an absolute devolution of the property to the wife by way of succession. Her position was more akin to that of a manager or custodian, holding the property to preserve the same for the heir to be appointed. However, she might dispose of the property when circumstances compel her to do so.
(b)	大清律例 「户律」「户役」「卑幼私擅用財」例二:
	「户絕財產，果無同宗繼之人，所有親女承受；無女者，聽地方官詳明上司，酌撥充公。」
	It was translated to read,
	"Where in the case of a family becoming extinct for want of qualified adopted males, the natural daughters shall inherit the family property, and where there are no surviving daughters, the magistrate shall report the case to his superior and the family property shall be forfeited to the Government."

55. Hence, the distribution of the family properties by the Plaintiff to the daughters could only be premised upon the extinction of the male line. By proceeding on that basis, the Plaintiff in fact manifested by her own conducts a settled intention not to adopt any heir. As she said (according to the evidence of PW3), after the disposal of the family properties, there was simply no point in adopting any heir. Hence, not only did the Plaintiff manifest a settled intention not to adopt an heir, she also acted in a manner pre-empting any future adoption of heir. In such circumstances, it is doubtful whether an elder could appoint an heir for Ho Wing after the demise of the Plaintiff although there had been earlier cases where heir was adopted posthumously after the death of the widow.

56. I therefore conclude that on the facts of the present case there is no prospect of any heir being adopted for Ho Wing. As it will become apparent later, this might have some bearing on the analysis of the situation offered by the expert.

Expert evidence

57. There is no dispute as to the expertise of the expert witnesses called to give evidence in this case. I therefore do not find it necessary to recite their qualifications in this judgment. They are in fact quite well known to those dealt with customary Chinese law in Hong Kong and have given expert evidence in a number of cases.

58. The Plaintiff called Professor Chang Wejen as expert on Chinese customary law. The learned professor agreed that Qing Code did not deal with Tso properties and membership of Tso. He however opined that the rules as to succession and division of family properties under the Qing Code are applicable to distribution of proceeds of sale of Tso properties. He drew an analogy between such distribution of proceeds of sale and the division of family property in the process of fen-jia (分家). As the de facto head of the family and by reason of the legal stipulation of "合承夫分" in the Code cited above, the professor was of the view that the Plaintiff should be entitled to receive a share of the proceeds to preserve the same for the heir. He did not regard the adoption of an heir as a pre-condition to the Plaintiff's entitlement to receive a share.

59. In his oral testimony, both in chief as well as under cross-examination, the learned professor said that the widow did not become a member of the Tso or Tong and he agreed that such membership is restricted to male descendants.

60. In the course of his testimony, the professor referred this court to several decisions by the Da Li Yuan (大理院). I do not find it necessary to discuss those decisions at length in this judgment as none of them touched upon Tso or Tong properties and they are not directly relevant to the crucial issue that I have to decide, viz. whether the provisions in the Qing Code cited by the professor could be applied by analogy to distribution of sale proceeds of Tso properties. Some of those decisions were cited to support the proposition that the widow had a decisive say in the appointment of an heir. I am prepared to accept that to be the case under Chinese customary law.

61. Mr Li seems to place some significance on a Da Li Yuan case with reference number 统字第一五二五号. For that reason, I will digress a little bit to deal with it. It was a decision concerning the interpretation of大清律例 「户律」「户役」「立嫡子違法」例二, the first provision referred to in Paragraph 54 above. I was supplied with a summary of that decision contained in a casebook 大理院解釋例全文 edited by 郭衞. The decision was in the form of a reply dated 3 May 1921 by the Da Li Yuan to 浙江高等審判廳. It is not a judicial decision made during the Qing Dynasty. However, according to Professor Chang, Da Li Yuan had jurisdiction in respect of points arising from Qing law.

62. Mr Mak drew my attention to some observations by Bokhary and Chan PJJ in Secretary for Justice v To Kan Chi [2000] 3 HKLRD 756 at p.766-7 regarding the jurisprudential approach adopted by the Da Li Yuan and the need for caution in making reference to such decisions. It seems to me those comments were directed in respect of a specific topic, viz. the concept of corporate personality. I do not think the Court of Final Appeal went so far as saying that decisions of the Da Li Yuan should not be referred to in other aspects concerning Chinese customary law. I would however consider that it is necessary to distinguish between construing the relevant Qing Code and judicial extension of the concepts built into the Code by application thereof to a situation not covered by the Code. A decision of the Da Li Yuan falling within the second category is not part of the Chinese customary law that is applicable in Hong Kong.

63. Coming back to case 统字第一五二五号, based on the brief summary available to me, it was about a widow who did not remarry, but was found guilty of adultery (和姦罪) and had served a sentence in respect of that, yet remained to live in the deceased husband's household. The only point that arose for the determination by the Da Li Yuan was whether such a widow should still be regarded as remaining unmarried and loyal (守志之婦) and as such entitled to receive and manage the deceased's properties under 大清律例 「户律」「户役」「立嫡子違法」例二by way of "合承夫分". The answer of the Da Li Yuan was that unless the deceased's direct relatives had sought a decree to annul the power of that widow to manage the deceased's properties, if the widow maintained her relationship with the deceased's family, she still had the power to receive and manage the properties.

64. Hence, the decision itself does not have any bearing on the question that I have to resolve. References were made in the course of hearing to some remarks in the summary in the extract concerning the power of a widow after she received her deceased husband's properties pursuant to 大清律例 「户律」「户役」「立嫡子違法」例二:

《即對於承繼財產，自有管理之權，於必要時，更有處分之權。其屬於共有者，亦得請求分析。》

65. I hesitate to place weight on those remarks. Given the summary nature of the report, it is not clear to me whether those remarks were remarks by the Da Li Yuan or part of the recitation of the submission by浙江高等審判廳. From the general setting of the summary, it is more likely to be the latter. It seems to me in any event it is not a point that arose on the facts of that case and the Da Li Yuan did not decide on it. Further, I am not satisfied that the reference to 共有財產 in that sentence meant to cover Tso properties.

66. Therefore, I do not find the reference to case 统字第一五二五号 to be of any assistance for present purposes.

67. When he was subject to cross-examination, Professor Chang said that the interest of a male in Tso properties did not extinguish automatically upon death. He opined that such interest was connected to his status and that status could be taken up by an adopted heir. But he agreed that the adopted heir did not have any interest until he was adopted.

68. The defence called expert evidence from Dr Henry Hu. Dr Hu was of the view that the adoption of an heir was a pre-condition for a widow's claim to Tso or Tong properties through the adopted son. It was a fundamental principle that clan's property should not fall into the hands of those outside the clan. He opined that according to Chinese custom prevailing in the New Territories, a widow cannot be a member of the Tong or Tso. Rather, it should be the adopted son who would become a member. In his supplemental report, Dr Hu stressed the difference between family properties and Tso/Tong properties. Tso/Tong were meant to be perpetual and females are excluded. He also referred this court to some judicial decisions concerning Tso and Tong in this jurisdiction.

Analysis and conclusions on customary law

69. Given Professor Chang's evidence, there is simply no basis for the Plaintiff to assert that she is a member of the Tso and her claim for a declaration to that effect must fail in any event.

70. In my judgment, there are fundamental differences between Tso/Tong properties and family properties formerly held by a deceased head of a family. The nature of Tso and Tong for ancestral worship and commemoration were explored in earlier cases including notably Tang Kai-chung v Tang Chik-shang [1970] HKLR 276 and Kan v Kan [1987] HKLR 516. The exposition by Mills-Owen J in Tang Kai-chung v Tang Chik-shang as to the nature of a Tso was adopted by the Court of Final Appeal in Secretary for Justice v To Kan Chi [2000] 3 HKLRD 756 at p.760A to D.

71. I respectfully reject Professor Chang's view as to the non-extinguishment of a deceased's interest in a Tso upon death. The weight of the authorities is against such a view and the professor did not refer to any authority to support his view. Certainly the Qing Code could not support his view because the Code simply did not deal with Tso properties. Further, it seems to me that the rule suggested by the professor would be unworkable in practice. If the interest of a deceased did not extinguish upon death and no heir was adopted in the meantime, how long must a manager wait before he could crystallize the shares due to other members? The evidence suggests that there was no time limit for posthumous adoption. What were to happen in the meantime? It would also be inappropriate for the manager to distribute a share to a widow in the meantime on the assumption that she would adopt an heir in the future. The widow is not a member and she had no right to any share on her own account. There is no guarantee that she would adopt an heir and she might not do so. Professor Chang's evidence was that an heir could not be forced upon a widow. If the widow did not adopt an heir, is the manager supposed to recoup all distributions made to her previously? In fact, as mentioned, the professor's evidence was that the share of an adopted heir only arose upon adoption.

72. Despite the evidence of Professor Chang, I stand by my analysis in Leung Kuen Fai v Tang Kwong Yu [2002] 2 HKLRD 705 at Para.24 regarding membership and interest in Tso. Since the interest and membership arises upon birth and ceases upon death, there is no question of succession of such interest and membership from father to son. Nor is there any question of that interest and membership forming part of the family property of a deceased male. When an heir is adopted posthumously, the adopted son becomes a member on his own right instead of being succeeded to the interest of the deceased in the Tso.

73. Hence, 大清律例 「户律」「户役」「立嫡子違法」例二 has no application to Tso properties whether directly or by analogy. That was basically a rule of succession. We are not dealing with any question of succession. There is no question of "合承夫分" when the interest of the deceased husband extinguished automatically upon death.

74. Once it is recognized that the deceased had no further interest in Tso properties upon his death, the analogy between sale of Tso properties and distribution of sale proceeds on the one part and the concept of fen-jia on the other part affords no assistance to the Plaintiff. In the present case, the Tso properties were sold in 1993 and 1994 whilst Ho Wing died more than 50 years ago. No male descendant survived and since 1972 no heir could lawfully be adopted. The line became extinct well before the sales. Even if an analogy could be drawn with fen-jia, there was no obligation to distribute to a fong that had become extinct. Ho Fung Cheung's branch of the family was in the same position as that of Ho Kwong Yuk. It does not matter whether the Plaintiff was the de facto head of the family. Due to extinction, the Plaintiff had no ground to demand for a share to be given to Ho Wing or Ho Fung Cheung even in the case of fen-jia.

75. The rationale given by Professor Chang as to the Plaintiff's right to demand for a share in the Tso properties was to preserve the same for the heir of Ho Wing. However as explained above, this objective can no longer be achieved given that posthumous adoption was no longer possible both in terms of law and facts by the time of distribution of the sale proceeds.

76. Mr Li argued that even if the line became extinct, the family property of Ho Wing would devolve to his daughters in accordance with大清律例 「户律」「户役」「卑幼私擅用財」例二. He cited Liu Ying Lan v Liu Tung Yiu [2003] 3 HKLRD 249 to support this proposition. In my judgment, that does not assist the Plaintiff because we are not dealing with family property. As explained, the deceased's interest in the Tso extinguished upon death and it did not form part of the family property.

77. For these reasons, I do not agree with the opinions of Professor Chang regarding the Plaintiff's right to receive a share in the sale proceeds of the Tso properties. I hold that without any heir being adopted for Ho Wing (and it is no longer possible to do so for reasons given above), no-one could claim to have any share in the proceeds of sale of the Tso / Tong properties in 1993 and 1994 stemming from Ho Wing's or Ho Fung Cheung's line of the family.

Results

78. It follows that the Plaintiff's claims in both actions are dismissed. I also make an order nisi that the Plaintiff shall pay the Defendant's costs of the actions.

79. I would also wish to record that there is some evidence to the effect that as a widow who did not remarry, the Tso might have a duty to look after her in terms of maintenance. However, Mr Li indicated to this court that the Plaintiff did not pursue any claims for maintenance in these actions. I therefore do not deal with that question in this judgment.