Li Tang Shi v. Li Wai Kwong and Another

CACV000027/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 27 OF 1969

Coram: Rigby, S.P.J., Scholes, J. & Mills-Owens, J.

Date of Judgment: 13 December 1969

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JUDGMENT

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Rigby, S.P.J.:

1. I have had the advantage of reading the judgment of my brother Mills-Owens J., with which my brother Scholes, J. has expressed his agreement.

2. For myself, I must confess that I was impressed by the lucid and cogent arguments advanced by Mr. Litton supported, at any rate to some extent, by the evidence upon the record, that the word "Tso" was capable of two meanings; first, for the purpose of showing that land has been converted into family land (and, therefore, registerable under Section 15 of the New Territories Ordinance) and, secondly, also for the purpose of showing that the previous owner of the land is in fact dead.

3. Li Wah Fuk died sometime in 1908, leaving surviving him as his widow the appellant. The appellant at that time was a very young girl. On the 28th March, 1912, an Instrument was registered in the Land Registry at the District Office, Tai Po, appointing trustees for the property of the deceased. The persons so appointed were two persons bearing the surname Li and the present appellant. By that Instrument those three persons were declared to be the trustees of Li Wah Fuk Tso. The argument advanced was that the two persons were appointed with her as co-trustees to assist her in collecting the rents from the property and generally assisting in the management of that property and that the word "Tso" was included in this Instrument then registered not for the purpose of declaring the land as family land but solely for the purpose of warning any persons interested in the purchase or acquisition of the property that the registered owner was in fact dead.

4. It is not disputed that under Ching law the widow, although not entitled to succeed to the property, was the person solely entitled to the income and management of the property. Furthermore, the widow had the sole right to choose and adopt a successor to her husband's property; such successor to be the nearest relative of agnatic descent of her deceased husband and bearing her husband's surname. It was further undisputed that there was no time limit within which the widow was required to make such an adoption and no one who could dictate to her whom she was to adopt. The person so adopted would succeed to the personal property of the deceased Li Wah Fuk. The argument advanced by Mr. Litton was that in 1912 no one had the power arbitrarily to add the work "Tso" to the deceased's estates and thereby convert what was private land into family land. The appellant herself, as widow, although holding a life interest in the income and management of the property, had no right herself to create a "tso" and thereby deprive or fetter the rights of the male successor to the property; nor were there any other close relatives or clansmen then in existence who had a greater right than the widow to convert the personal property of the deceased into family land. However, the difficulty as to that argument seems to me to be really a question of fact and dependent upon what evidence, if any, there was to determine what were the rights and interests, if any, of the signatories at the time the relevant entry was made in the Land Registry in 1912. Assuming that the word "tso" is indicative not only of the creation of land as family land, but also, as the appellant contends, of signifying to anyone inspecting the Land Registry that the previous owner is dead and that the widow, with the assistance of trustees, is simply holding a limited interest in the land, what was the purpose and intention with which that 1912 entry was made in the Land Registry? The appellant herself, although apparently a woman now of considerable age, was available at the trial but did not give evidence: nor was any other evidence given as to the relationship of the co-trustees who signed that entry or as to their purpose and intention when it was so signed. Mr. Akers-Jones, an administrative officer of wide experience, said that "tso" - and here I quote from the judgment of the learned trial judge - "had come to indicate a form of land holding by which the succeeding generations of a family preserve intact the lands of a common ancestor principally to ensure that reverence is paid to a common ancestor i.e. that Tso land is "family" land and therefore registerable under section 15 of the Ordinance, which includes the term "family" ....". "He did not agree that when "tso" is added to a person's name it only meant that that person was dead." The learned trial judge accepted that evidence. In the absence of any positive evidence as to the meaning and intention of the parties when the 1912 entry was made I think the learned trial judge was entitled to accept and act upon that evidence that the effect of the 1912 entry was to create a "tso" and convert the land into "family" land.

5. But there still remains the argument advanced by Mr. Litton that as a matter of law, the widow having only a limited and life interest, in the land, in the absence of a male successor could not - acting either by herself or with the agreement of other clansmen - have converted the personal estate into family land so as to deprive the male successor of his estate and interest in the land. The learned trial judge, and the majority of this Court, have taken the view that, according to the expert evidence, a "tso" was in fact created and that the land is family land and properly registered under Section 15 of the New Territories Ordinance: no advantage is to be gained by my expressing a different view: the appeal must accordingly be dismissed.

6. There remains only the question of the cross-appeal by the Attorney General on the order made by the trial judge that costs, or a part of the costs, be paid by the Crown.

7. The relevant sections, section 44 of the New Territories Ordinance and section 17 of the Crown Proceedings Ordinance, have already been set out in the judgments of my brothers and I do not propose to quote them again. I take the view that the expression "liability" used in section 44 of the New Territories Ordinance mean "liability" in the sense that no personal liability or responsibility shall attach to the individual, or to the Crown, in respect of any wrong act done, or irregular or incorrect entry made, by a Land Officer in the course of his duty, such as would otherwise, in the case of any other person, have supported or justified an action for damages as a consequence of such wrong act or irregular or incorrect entry. But in my judgment where relief is claimed against the Crown, not in the form of an action for damages but simply by way of certain declarations which are sought, if the Crown chooses to resist that claim and is unsuccessful, then the Crown is liable for such costs as can properly be apportioned by reason of the successful plaintiff's necessity to prove his right to the declaration or declarations which he has sought. To this extent I would dismiss the cross-appeal.

Representation:

Litton (Samuel Soo & Co.) for Appellant.

1st Respondent in person.

M.J. Stapp, C.C. for 2nd Respondent.

Separate Judgments handed down.