Man King Chuen and Others v. Hong Lok Yuen International School Association Ltd and Another

HCA 299/2011

[2018] HKCFI 1686

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 299 OF 2011

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J U D G M E N T

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1.By summons of 30 June 2017 (“the Summons”), the 2^ndDefendant has applied for leave to adduce expert evidence in relation to two questions of Chinese customary law and customs.

2.Pursuant to the order of Mr Registrar Lung of 17 July 2017, the 1^stDefendant has been excused from attending the hearing of the substantive argument for the Summons.

THE BACKGROUND

3.The dispute between the parties concerns Lot No 357 in DD No 7, Tai Po, New Territories (“the Subject Lot”).  It is not disputed that the Plaintiffs are the registered owners of the Subject Lot.

4.The 2^nd Defendant says that it (and its successor, a related company) is the registered owner of a plot of land adjacent to the Subject Lot.  There is a school on this plot of land, which is operated by the 1^stDefendant.  The 1^st Defendant is a tenant of this plot of land.

5.The 2^nd Defendant says that since about 1982 or 1983, pursuantto various agreements for the sale of land, and leases, it has been in exclusive physical control and/or possession of the Subject Lot, either by itself or through the 1^st Defendant, which has used, occupied and possessed part of it as a playground for the school.  The 1^stDefendant says that it has been in exclusive possession of the playground since about 1984.  Accordingly, the Defendants say that the Plaintiffs’ claim to recovery of the land is barred by section 7 of the Limitation Ordinance (Cap 347).

6.The Plaintiffs say that 6/7 of the Subject Lot has been jointly owned by the 1^st to 6^th Plaintiffs, which are Tsos, a recognised form of Chinesecustomary landholding under section 13, New Territories Ordinance (Cap 97).  They plead in their Amended Reply and Defence to Counterclaim of the 2^ndDefendant:

(1)   that 6/7 of the interest in the Subject Lot have at all material times been held by the managers of the Tsos on trust for the benefit of the members of the Tsos;

(2)   that each member of the Tsos has a life interest in the 6/7 share of the Subject Lot which arises automatically on his birth and extinguishes on his death;

(3)   that by reason of section 10(2) of the Limitation Ordinance (Cap 347), the estate of the managers, as trustees, shall not be extinguished as long as the right of action to recover the Subject Lot of any person entitled to a beneficial interest in the land has not accrued or has not been barred by the ordinance;

(4)   that by reason of section 10(3) of the Limitation Ordinance, the right of the managers to take action to recover the Subject Lot is not prejudiced by the expiry of the limitation period for the managers’ own rights to bring an action;

(5)   that section 22 of the Limitation Ordinance extends the limitation period in the case of any infant member of the Tsos up to 6 years after he attains the age of majority (21 years of age for those born prior to 1 October 1990 and 18 years of age for those born prior thereafter); and

(6)   that there are members of the Tso whose right of action for recovery of the Subject Lot had not yet been barred by the time of commencement of the proceedings.

PREVIOUS AUTHORITIES RELATING TO OWNERSHIP OF LAND HELD BY A TSO

7.The Plaintiffs’ case is based on Leung Kuen Fai v Tang Kwong Yu (or U) T’ong or Tang Kwong Yu Tso [2002] 2 HKLRD 705 and two subsequent Court of Appeal decisions which applied it, Wong Shing Chau v To Kwok Keung [2008] 5 HKC 372 and Tsang Kwong Kuen v Hau Wai Keung Gaius [2014] 5 HKLRD 622.

8.In Leung Kuen Fai, the plaintiff sought a declaration that the title of the defendant, the registered owner of the property, had been extinguished pursuant to section 17 of the Limitation Ordinance.  The defendant was a T’ong or a Tso.  On the trial of a preliminary issue as to whether the defendant’s title to the property and its right to recover possession thereof had been preserved intact notwithstanding any adverse possession by the plaintiff, Deputy Judge Lam (as he then was) held at [24], [44] and [45] that:

(1)   in respect of New Territories land within the scope of section 13of the New Territories Ordinance, a Tso is recognised as a form of Chinese customary landholding;

(2)   in the context of Hong Kong law, it had been established that the concept of a trust was applicable to a Tso, with the managers as trustees and the members as beneficiaries, although certain concepts in English trust law were inapplicable;

(3)   the members of a Tso were the living male descendants of the focal ancestor from time to time.  They had the beneficial interest in the property. The managers could not dispose of the property against the wishes of the members;

(4)   in practice, with the unanimous consent of all the members, the Tso property could be sold, partitioned or distributed;

(5)   in the absence of a sale, partition or distribution, each member only had a life interest in the Tso property.  The interest of a member arose automatically by birth and extinguished automatically upon death.  The life interests would not form part of the estate of a deceased member.  The extent of the life interest at any point in time depended on the number of living members in the Tso;

(6)   on the question of limitation, the interests of the members had to be considered independently from the rights of the managers.  Even amongst members of the Tso, limitation periods could bedifferent for different members since one did not claim through another; and

(7)   whenever a new member was born, a new equitable interest in the Tso property was created.  A new limitation period under sections 7(2) and 22 of the Limitation Ordinance would start to run.  The new limitation period would not expire until 6 years after the member ceased to be an infant.

9.As there were at least three members whose equitable interests had not been time-barred as at the date of the judgment, the preliminary issue was determined in favour of the defendant Tso.

10.Deputy Judge Lam’s analysis in Leung Kuen Fai was applied by the Court of Appeal in Wong Shing Chau and Tsang Kwong Kuen.

11.The Plaintiffs say that that analysis should equally apply in the present case.

12.The 2^nd Defendant says (and the Plaintiffs do not dispute) that the key components to the reasoning in Leung Kuen Fai include the following:

(1)   that a Tso is treated as a trust, with the Tso’s landholdings held by the manager of the Tso as trustee for the members of the Tso; and

(2)   that the interest of a member of a Tso arises from the moment of his birth and is treated as that of a beneficial owner.  As a beneficial owner, the member acquires an immediate right to sue for recovery of the Tso property against any trespasser.

13.The 2^nd  Defendant wishes to challenge these propositions.

THE EXPERT EVIDENCE SOUGHT TO BE ADDUCED

14.Accordingly, the 2^nd Defendant seeks leave to adduce expert evidence on two questions:

(1)   in respect of land held by a Chinese Tso, who is the owner of such land, and in particular, whether Chinese customary law separates the ownership of land between several legal entities; and

(2)   under Chinese customary law, at what time (if ever), or upon the happening of what event, would a member of a Tso become an owner of, or acquire a direct vested interest in, the land held by a Tso.

15.The Plaintiffs oppose the application on the ground that the two questions have already been definitely determined by Leung Kuen Fai, Wong Shing Chau and Tsang Kwong Kuen, and that the two Court of Appeal decisions are binding on the Court of First Instance and cannot be overruled by expert opinion.  Therefore, neither of the two stages of the test for giving leave to adduce expert evidence have been satisfied (see below).

16.The Plaintiffs also complain that the application is a belated one, with no explanation given for the delay.  The court had directed that applications for expert directions be made by 12 December 2016, but the 2^nd Defendant’s application was only made on 30^th July 2017. The 2^nd  Defendant submitted, and I accept, that since Mr Registrar Lung on 17 July 2017 gave it retrospective leave to take out the Summons out of time, delay cannot in itself be a ground for refusing the application.

PRINCIPLES REGARDING THE ADMISSION OF EXPERT EVIDENCE

17.The principles as to when the court will give leave to parties to adduce expert evidence are not essentially in dispute.

(1)   In deciding whether proposed expert evidence should be received, there is a two-stage test (“the Barings test”).

(a)   First, the evidence has to be admissible as “expert evidence” for the purpose of section 58, Evidence Ordinance (Cap 8).  It will be so admissible in any case where the court accepts that there exists a recognised expertise governed by recognised standards and rules of conduct capable of influencing the court’s decision on any of the issues which it has to decide and the witness to be called satisfies the court that he has a sufficient familiarity with, and knowledge of, the expertise in question, to render his opinion potentially of value in resolving any of those issues.

(b)   Second, evidence meeting this test can still be excluded by the court if the court takes the view that calling it will not be helpful to the court in resolving any issue in the case justly.  Such evidence will not be helpful where the issue to be decided is one of law or is otherwise one on which the court is able to come to a fully informed decision without hearing such evidence.

See Re Ocean Time Development Ltd [2008] 2 HKLRD 393 at [13], per Barma J (as he then was), citing Barings plc & Another v Coopers & Lybrand & Others [2001] Lloyd’s Rep Bank 85.  The Barings test was also applied in Wong Hoi Fung v American International Assurance Co (Bermuda) Limited & Another [2002] 3 HKLRD 507 at [12].

(2)   It is for the party seeking to call expert evidence to satisfy the court that expert evidence is available which would have a bearing on the issues which the court has to decide and would be helpful to the court in coming to a conclusion on those issues: Phipson on Evidence, 19^th ed, para 33-36.

(3)   The court’s discretion as to whether to grant leave to a party to adduce expert evidence is to be exercised within the ambit of the court’s case management powers, exercised in the light of the underlying objectives of the CJR: Fung Chun Man v Hospital Authority, unreported, HCPI 1113/2006, 24 June 2011, at [9] and [11].

(4)   Where the proposed expert evidence is plainly inadmissible or irrelevant, the court ought to exercise its discretion to refuse the admission of such evidence.  But where the court cannot form a clear view of the relevance of the proposed expert evidence or where it considers that the proposed evidence is clearly relevant, then it should grant leave for the evidence to be adduced at trial: Wong Hoi Fung at [11].

THE ISSUE FOR THE COURT ON THIS APPLICATION

18.The issue which arises for my consideration on this applicationis therefore whether the two Court of Appeal authorities of Wong Shing Chau and Tsang Kwong Kuen are binding on the Court of First Instance such that the 2^nd Defendant should not be allowed to seek to adduce expert evidence which is inconsistent with those authorities.

19.There are two aspects which require consideration.

(1)   First, as a matter of general principle, can expert evidence on a point of Chinese customary law be received by the court where there is a binding decision on the point?

(2)   Second, do the two Court of Appeal authorities in the present case constitute any binding precedent as regards the relevant points of Chinese customary law at all?

IS EXPERT EVIDENCE ON CHINESE CUSTOMARY LAW INADMISSIBLE AND/OR IRRELEVANT ON A POINT ALREADY COVERED BY AUTHORITY?

The parties’ submissions

20.Mr Bernard Man SC, appearing with Mr Keith Lam for the 2^nd Defendant, submitted that notwithstanding that Chinese customary law was part of Hong Kong law, it was a well-established practice of the Hong Kong courts to admit expert evidence to prove it, in the same way that foreign law is proved by means of expert evidence.  Whilst the court can have regard to decided cases dealing with the point of Chinese customary law, the primary source of the court’s knowledge of Chinese customary law is from expert evidence rather than from the judge’s own learning (given that one cannot assume that Hong Kong judges have the same expertise in Chinese customary law as other parts of Hong Kong law).

21.Mr Man SC further submitted that even where there were previous decisions on a particular point of Chinese customary law, they should not be treated as binding authorities on the point.  There was no case in which a Hong Kong court has refused to admit expert evidence of Chinese customary law on the basis that the point was covered by a binding precedent.  On the contrary, there were examples showing that expert evidence was adduced or was expected to have been adduced even though an earlier decision had addressed the point in question.

22.Mr Lee Tung-ming, appearing for the Plaintiff, submitted that it is established law that principles of Chinese customary law decided in previous cases are binding, and that the court would take judicial notice of Chinese customary practice in the New Territories by reference to decided cases.  It was not open to the 2^nd Defendant to introduce expert evidence contrary to principles already laid down in binding authorities; alternatively, even if the evidence were admissible, the Court should exercise its discretionto refuse leave to adduce such evidence as it would not be helpful in the light of such binding authorities.

Discussion

23.It is not disputed that the general practice of our courts has been to admit expert evidence to prove propositions of Chinese customary law.  See, for example:

(1)   Re Lau Wai Chau (2000) 3 HKCFAR 98 at 101B, per Bokhary PJ:

“… Whenever there is any live issue as to what the provisions of Chinese law and custom are, the usual practice in our courts is to resolve such issue with the benefit of expert evidence. …”

(2)   Leung Sai Lun v Leung May Ling (1999) 2 HKCFAR 94 at 102B, per Ching PJ:

“… It is immediately apparent that the ascertainment and the applicability of Chinese law and custom would cause difficulties. So far as ascertainment was concerned the Courts perforce allowedexpert evidence to be given upon it notwithstanding that that law and those customs were a part of our law. …”

(3)   In re Tse Lai-chiu, deceased [1969] 1 HKLR 159 at 175 – 176, per Hogan CJ:

“… It would seem, therefore, that, contrary to what the Solicitor General has suggested, Chinese law was part of the law of the land. Consequently, courts could purport to find this law in authoritative textbooks … but there has long been a practice in Hong Kong of taking evidence on such law, a practice endorsed in a number of judicial decisions, and although this practice may be regarded as a departure from the procedure normally followed in English courts, I think it must now be regarded as an established modification based on local circumstances though it should not betaken to supplant the court’s right to inform itself by other means.”

(4)   Ma Siu Siu Vivian v Tam Wai Mun Alice, unreported, HCAP 13/2011, 7 March 2016, per L Chan J at [10]:

“… The court allows expert evidence in disputes on Chinese customary law because such law is regarded analogously as foreign law.”

24.This practice has been followed even where there were previous decisions on the point of Chinese customary law in question.  In Ng Kuk Mui v Yu Bik Fong Rebecca, unreported, HCAP 2/1997, 29 April 2000, the plaintiff sought to prove that she had entered into a Chinese customary marriage.  She did not adduce expert evidence to prove this, but instead, relied on an authority which set out the requirements for the validity of a Chinese customary marriage.  Deputy High Court Judge Chu (as Chu JA then was) said at p.6 that:

“… I have to say that I find the course taken most unusual. … [The plaintiff] has to establish that the alleged ceremony constituted a valid marriage according to Chinese customary law. In this respect, the general rule is for expert evidence to be adduced,either by way of testimony or, with leave of the court, by affidavit.… While the court may derive assistance from decided cases as to the essential requirements for a Chinese customary marriage, it has to be borne in mind that no two cases have the same identical facts. It is also to be noted that customary law is not static, a proposition readily accepted by counsel. Accordingly, the kind of marriage rites that is required for a valid Chinese customary marriage may differ from one part of China to another and depend also on the time of the marriage and the social conditions prevailing at the time. It cannot be safely assumed that the formof ceremony accepted as sufficient to constitute a valid customarymarriage in one case will necessarily support a finding of a valid marriage in another case. In my view, the course adopted by the plaintiff is not to be recommended.”

25.Mr Lee submitted that the learned Judge was not addressing a situation in which there was a “binding authority” covering the proposition of Chinese customary law in question.  However, it seems to me that the learned Judge was observing that each case turns on its own facts, and that customary law is not static, so that prior authorities which make findings as regards essential requirements of a particular aspect of Chinese customary law will nevertheless not necessarily provide a conclusive answer as regards the case before the court.  Insofar as it is being said that the authority relied on by the plaintiff in Ng Kuk Mui was not a “binding authority” in the sense of being a decision of the Court of Appeal, this was not a distinction drawn by DHCJ Chu.

26.In his skeleton, Mr Lee relied principally on two authorities for his submission that principles of Chinese customary law decided in previous cases are binding (and that expert evidence cannot be adduced to contradict such propositions).  The first is Tang Tak Sum v Tang Kai Fong [2013] 4 HKLRD 16, where a question arose as to whether an ancestral worship trust had been created.  The plaintiffs claimed that by a document referred to as the “Division of Family”, its deceased author had set up an ancestral worship trust.  The plaintiffs’ initial case in their opening submissions was that the ancestral worship trust was intended to take effect after the death of the deceased.  The plaintiffs’ supplemental opening submissions revised their case to say that the ancestral worship trust was intended to take effect immediately.  The change of stance came about because the plaintiffs recognised that in Re Lau Wai Chau (2000) 3 HKCFAR 98, the Court of Final Appeal had held that Chinese customary law did not recognise testamentary dispositions.

27.Mr Lee relied on [53] to [59] of the judgment of Deputy High Court Judge Linda Chan SC:

“53. … Mr Shum submits that these principles of Chinese customary law were already decided by the Court in Re Lau WaiChau, which is binding on this Court. It is not properly open to the plaintiffs to rely on the opinion of Professor Chang, to the extent that it is inconsistent with the conclusions on the state of Chinese customary law reached by the Court in Re Lau Wai Chau.

54. In my view, Mr Shum’s submissions are well founded. The principles of Chinese customary law germane to the first issue were considered and decided by the Court in Re Lau Wai Chau with the benefit of the evidence from four experts (including Professor Chang). …

55. Mr Chong submits that the above conclusions on the state of Chinese customary law reached by the Court in Re Lau Wai Chau and affirmed by the appellate courts should not be followed. He points to the following passage in Lau Yue Kui v Estate of LauLeung Chau [1998] 1 HKLRD 579, 593J–594B, and submitsthat such holding was erroneous as none of the experts called by the parties gave such evidence …

56. Mr Chong submits that I should accept the opinion of Professor Chang … and conclude that the Division of Family could by itself create an ancestral worship trust of the Land immediately ….

57. I do not agree with Mr Chong’s submissions. It is clear from the judgment of Peter Cheung J (as he then was) in Lau Yue Kui [the first instance judgment in Re Lau Wai Chau] … that all four experts on Chinese customary law including Professor Chang (the plaintiffs’ expert in this action) had given evidence to the effect that to create an ancestral worship trust over the land, a t’ong or a t’so would have to be set up, and the land would need to be registered in the name of such t’ong or t’so ….

58. I agree with Mr Shum that I should follow and apply the principles of Chinese customary law as stated in Re Lau Wai Chau,insofar as they are applicable to the issues raised by the parties.  It follows that I do not accept Professor Chang’s opinion ….”

28.Mr Lee submitted that what DHCJ Linda Chan SC had held was that it was not open to the plaintiffs to adduce expert evidence which was contrary to the Court of Final Appeal decision, which was binding on her.

29.In my view, however, what the learned Deputy Judge was saying was that:

(1)   the relevant principles of Chinese customary law were addressed by the courts in Re Lau Wai Chau (see [54]);

(2)   it was the plaintiffs’ submissions that Re Lau Wai Chau was wrongly decided, as a key holding of the first instance judgment was wrong, not being based on the expert evidence called at trial (see [55]), so that the court should now accept the opinion of the plaintiffs’ expert Professor Chang (see [56]);

(3)   such submissions should be rejected as the first instance judgment in Re Lau Wai Chau clearly was based on the expert evidence given (including, incidentally, evidence from the same Professor Chang);

(4)   Professor Chang’s opinion in the present case was therefore not accepted.

30.It was on this basis that DHCJ Linda Chan SC said in [54] that the defendants’ submissions were well founded.  She was not saying that because the relevant principle of Chinese customary law had been decided in Re Lau Wai Chau (that testamentary dispositions were not recognised), the plaintiffs were barred from adducing expert evidence to contradict it.

31.The plaintiffs in Tang Tak Sum appealed.  The judgment of the Court of Appeal is reported in [2015] 1 HKLRD 286.  In dealing with the plaintiffs’ complaint that DHCJ Chan SC had refused to admit supplemental expert evidence, Cheung JA said at [27] that:

“In the light of the Court of Final Appeal judgment in Re Lau Wai Chau, the plaintiffs were bound to fail on this issue and the defendant did not have to resort to expert opinion to meet this point.”

32.Mr Lee submitted that what Cheung JA meant was that if there was a binding decision on Chinese customary law which was against a party, then that party was bound to fail, so that it was unnecessary for the opposing party to put in expert evidence to meet the point.  In my view, all that Cheung JA was saying was that the defendants were entitled to object to the attempt to introduce new expert evidence, on the grounds that they would need to adduce responsive expert evidence and that this would derail the trial; it was no answer for the plaintiffs to say that the defendants had all along not filed any expert evidence, as the defendants’ original stance was simply to rely on Re Lau Wai Chau: the defendants were entitled to change their stancewhen the plaintiffs sought to raise a new case (see [23] to [27]).  Cheung JA was not considering the question of whether the plaintiffs could have filed any expert evidence which contradicted Re Lau Wai Chau.

33.The second authority which Mr Lee relied on is Lee Sun Kiu v Ho Kay Fuk, unreported, HCA 195/2001, 20 August 2004, at [35].  In that case, the plaintiff, a widow, essentially sought to establish that she was the member of a certain Tso and two Tongs, pursuant to an alleged local custom recognising widows as such members.  One matter which the plaintiff relied on was the fact that her name was on some of the Tso’s and Tongs’ lists of members filed with the Tai Po District Office.  Lam J (as he then was) weighed this against other evidence, including the fact that there were other documents filed with the District Office which did not include the plaintiff’s name as a member of the Tso and Tongs, and the general practice prevailing in the New Territories that membership of Tsos and Tongs was exclusive to men.

34.At [34] to [35] of the judgment, Lam J said:

“34. … I do not regard the member lists signed by [the heads of the village] 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….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 vSik Kwok Wah HCMP 562 of 1992, 26 November 1998, Para.4.7; Phipson on Evidence, 15^th Edn. Para.2-13.”

35.Lam J was simply saying in these paragraphs was that the member lists did not carry much weight as evidence, particularly when weighed against the general practice that membership of Tsos and Tongs was exclusively male. He was not refusing to consider evidence (which in any event was factual, not expert) by reason of the existence of a previous authority on the point.

36.Mr Lee also referred to the two authorities cited by Lam J.  The first is Yeung Chi-ding & Others v Yeung Tse-chun [1986] HKLR 131 at 137G–J.  There, Liu J (as he then was) referred to the change in the relative importance of expert evidence over time and concluded that “Expert evidence remains, however, an almost indispensable source of guidance in the ever changing Tsing customs in most of our New Territories villages”. His observations were made in the context of his comment that the defendanthad failed to adduce expert evidence in support of an “extraordinary contention” which went against the court’s understanding of Chinese customary law.  Liu J was not addressing the question of the extent to which authorities on Chinese customary law were binding.

37.The second is To Kan Chi & others v Sik Kwok Wah & others, unreported, HCMP 562/1992, 26 November 1998, where Yam J said at [4.7] that:

“Chinese custom or customary right applicable to the New Territories are in fact an aspect of the local law and as such, it would be open to a judge to take judicial notice of such customarylaw. It is certainly also open to him to take the law from decided cases, and also to consider such textbooks and other sources as may appear to be helpful ….”

38.However, the learned Judge then went on in [4.8] to say that there was a long established practice of the court taking expert evidence on Chinese customary law.  Again, Yam J was simply not addressing the question of the extent to which authorities on Chinese customary law were binding.

Conclusion on the issue of general principle

39.There is therefore no authority which suggests that expert evidence of Chinese customary law is not admissible, or that the Court should not exercise its discretion to admit it, by reason only of the fact that there is a binding judicial precedent on the points of Chinese customary lawin question.  The general practice of the courts in receiving expert evidenceon Chinese customary law continues to apply in such cases.  Whilst previous authorities will be one source of Chinese customary law on which the court can draw, the court is not limited to this source.  It should be borne in mindthat since customs may have varied from time to time, or from place to place, a principle established in one particular case may or may not turn out to be of universal application in all other cases.  Depending on the facts of the case, the court may find expert evidence to be of assistance even where there are already authorities on the point in question.

Barings test—stage 2

40.Mr Lee submitted that admissibility (in the sense of the first stage of the Barings test) was not the only hurdle which the 2^nd Defendant had to overcome.  The 2^nd Defendant also needed to show that the evidencewas relevant in that it would be helpful to the court, but it failed to do so byshowing how it was going to be said that Leung Kuen Fai, Wong Shing Chau and Tsang Kwong Kuen were plainly wrong, or how the law had changed subsequent to those authorities.  Those authorities therefore stood, and the 2^nd Defendant was bound to fail, so any expert evidence would be futile.  But, as Mr Man SC pointed out, this was effectively the same as Mr Lee’s principal argument, which I have addressed above.

41.Insofar as the lack of particularity is concerned, I bear in mind that where the court cannot form a clear view of the relevance of the proposed expert evidence, then it should grant leave for the evidence to be adduced at trial.  Although the 2^nd Defendant has not condescended to particulars of the expert evidence proposed to be given, it has indicated that it intends to challenge two fundamental aspects of Leung Kuen Fai.  I cannot say at this stage that such evidence would be plainly irrelevant.

DO WONG SHING CHAU AND TSANG KWONG KUEN CONSTITUTE BINDING PRECEDENTS?

The parties’ submissions

42.Mr Man SC submitted that in any event, Wong Shing Chau and Tsang Kwong Kuen, the two authorities relied on by Mr Lee, did not in fact constitute binding precedents on principles of Chinese customary law, as thecorrectness of Leung Kuen Fai was not in issue in those cases.  He submitted that where the court simply assumes the correctness of a legal proposition without argument, its judgment is not binding precedent for that propositionin subsequent cases, even if the proposition formed part of the ratio decidendi in the original judgment: Baker v The Queen [1975] AC 774 at 788C; In re Hetherington [1990] Ch 1 at 10B–H.

43.Mr Lee submitted that any departure from the strict rule of precedent should be applied only in the most obvious cases, and limited withgreat care.  Just because a point was not argued did not mean that the court’s decision would not be binding in relation to the point; the court might have gone further than merely assuming its correctness.  He relied on R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] QB 955 at [38].  Mr Lee submitted that in Wong Shing Chau and Tsang Kwong Kuen, the Court of Appeal did in fact consider the correctness of Leung Kuen Fai and did not simply assume it.

Discussion

44.There was no real dispute that where a court has simply assumedthe correctness of a proposition of law in its judgment, the judgment will not be binding authority for the proposition, even if it formed part of the ratio decidendi (Baker, In re Hetherington, supra), and even if the proposition were expressly incorporated by the court as part of its reasoning: R (Kadhim), supra, at [21] to [25], [33] to [38].  Such an assumption would typically be made where the proposition of law was not in issue between the parties.  Mr Lee however emphasised, and I accept, that even though a point was not argued, the court might still have gone further than simply assuming its correctness: R (Kadhim), supra, at [38].

45.The question is therefore whether the Court of Appeal in Wong Shing Chau and Tsang Kwong Kuen assumed the correctness of Leung Kuen Fai.

46.In Wong Shing Chau, the plaintiff acquired a piece of land from a Tso, of which he was a member, in 1996.  He commenced proceedings in 2002 to recover possession from the defendant, who claimed that he had adversely possessed the land since 1972.  It was common ground that male descendants of the Tso had been born since 1972, including one born in 1993.  The trial judge found for the plaintiff, applying Leung Kuen Fai and holding that the necessary limitation period had not been established because there could not have been adverse possession of the land as against the Tso immediately prior to the assignment to the plaintiff.

47.In the Court of Appeal, the parties accepted the correctness of the analysis in Leung Kuen Fai as to the nature of a Tso and the interests ofits members: see [9] to [12].  Rather, the defendant’s argument was that the plaintiff, as a member of the Tso, could and should have taken action from 1972 onwards; he failed to do so and his right to do so was extinguished on 1 September 1990 (the sixth anniversary of his attaining majority); the defendant had dispossessed the plaintiff by 1 September 1992 for 20 years.

48.In rejecting this argument, the Court of Appeal applied Leung Kuen Fai: see [13] to [15].  The plaintiff’s argument assumed that each member of the Tso had a positive obligation to evict trespassers from the first moment of occupation, but Leung had held that usually, the managers rather than the members would have taken action.  The Tso’s title had not been extinguished at the time of the assignment to the plaintiff as new members had been born since 1972, including one in 1993.

49.Thus whilst the Court of Appeal referred to and applied Leung Kuen Fai in coming to its decision, it did so without considering whether or not Leung Kuen Fai was correctly decided—not surprisingly, given the parties’ stance.

50.In Tsang Kwong Kuen, the plaintiff claimed to have adversely possessed a plot of land.  The defendant Tong was the registered owner of the plot of land, and relied on Leung Kuen Fai to resist the claim, as there were three members of the Tong against whom the limitation period had not expired.  The plaintiff failed at first instance.  On appeal, the plaintiff accepted the principles in Leung Kuen Fai, and argued that there was no evidence that the Tong was a hereditary Tong to which Leung Kuen Fai applied, or that the three members were indeed members of the Tong.

51.The Court of Appeal considered and rejected the plaintiff’s arguments on the evidence, holding that there was sufficient evidence before the trial judge on both of the points raised by the plaintiff; accordingly, the trial judge was therefore correct in concluding that Leung Kuen Fai applied.  See [4] to [14].

52.Again, whilst the Court of Appeal referred to and applied Leung Kuen Fai, it did not consider the correctness of that decision.  It simply considered whether or not the complaint of a lack of evidence was made out.  

53.I therefore agree with Mr Man SC that Wong Shing Chau and Tsang Kwong Kuen do not constitute binding authorities on the propositions of Chinese customary law from Leung Kuen Fai set out at paragraph 12 above.

CONCLUSION

54.I therefore make an order in terms of paragraphs (1) to (3) of the Summons.

55.I further make a costs order nisi that:

(1)   the costs of preparation of the parties’ expert evidence in accordance with paragraphs (1) to (3) of the Summons be in the cause; and

(2)   the Plaintiffs pay to the 2^nd Defendant the costs of and occasioned by the 2^nd Defendant’s application for leave to adduce expert evidence, with certificate for counsel, to be taxed if not agreed.

Mr Lee Tung Ming, instructed by Rene Hout & Co, for the 1^st to 7^th plaintiffs

Mr Bernard Man SC and Mr Keith Lam, instructed by Mayer Brown JSM, for the 2^nd defendant

Humphrey & Associates, for the 1^st defendant, attendance excused