Liu Sui Lun Alan, Manager of Liu To Nam Tong v. 杜文輝

HCA 2052/2018

[2020] HKCFI 3169

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2052 OF 2018

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BETWEEN

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Before:  Deputy High Court Judge Paul Lam SC in Chambers

Date of Hearing:  29 December 2020

Date of Judgment:  7 January 2021

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J U D G M E N T

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A.  INTRODUCTION

1.The Plaintiff sues as the manager of Liu To Nam Tong (廖圖南堂) (“the Tong”).  The Tong is the registered owner of Lot No 228 in DD 52, Tai Yuen Tsuen (大元村), Sheung Shui (“the Land”), which includes what is known as No. 15B Tai Yuen Tsuen Lane No 9 (“No. 15B”).  The Plaintiff claims that, since around early May 2018, the Defendant has been wrongfully occupying No. 15B.  This is the Plaintiff’s application for summary judgment.

B.  THE PLAINTIFF’S CLAIM

2.The Plaintiff claims that, in early May 2018, the Defendant demolished a dilapidated house built on No. 15B (“the Old House”); and, after that, began to build a new structure consisting of 2 storeys (about 200 sq ft each) with a roof, red brick walls, a front entrance and a rear entrance made of corrugated iron panels (“the Structure”).  When being confronted, the Defendant said that the Structure was intended to accommodate his son living in the Mainland, whom he wished to send to Hong Kong for education.  By two letters dated 20 June 2018, the Tong, through solicitors, requested the Defendant and the construction workers respectively to cease all construction work but there was no response.  On 16 August 2018, the Plaintiff, through solicitors, posted up and left at No.15B a notice to quit.  However, the Defendant has continued to occupy No. 15B.  According to the photos taken by the Plaintiff, construction of the Structure had been completed by 18 August 2018.  At the hearing, I was told that, at the moment, the Defendant, his mother and his son are living in the Structure.

C.  WHETHER THE DEFENDANT HAS SHOWN ANY ARGUABLE DEFENCE OR TRIABLE ISSUE

3.It is trite that, in a summary judgment application, the burden is on the defendant to show an arguable defence or a triable issue.  It is insufficient for the defendant to make a bare assertion, whether on fact or law.

4.In the Defence, the Defendant challenged the locus standi of the Plaintiff on the ground that the Plaintiff commenced this action in his personal name.  On 5 June 2020, Master Lai granted leave to the Plaintiff to amend the writ and the statement of claim to the effect that he now sues as the manager of the Tong.  As a result, this defence is gone.

5.In the Defence, §9, the Defendant pleads that:

“In or about May 2018, the Defendant just carried out works for decoration, repair, maintenance and upkeeping of the structure(s) at No. 15B Tai Yuen Tsuen, which form part of the Land, upon the direction of his mother LIU Ying Lan. The Defendant and his worker did not trespass the Land, and did not require the consent of the Plaintiff and/or the Tong to enter, remain and/or take possession of No.15B Tai Yuen Tsuen and carry out such works in relation thereto.”

6.He then pleads at §14 of the Defence:

“It is averred that the Defendant is not a trespasser, and has no obligation to quit or move out of the Land or give up possession of the Land to the Plaintiff and/or the tong, and the Defendant shall be at liberty to continue with the works in relation to No. 15B Tai Yuen Tsuen as part of the Land and is entitled to have possession of the Land and structure(s) thereon with the authority of his mother LIU Ying Lan (daughter of LIU Sau Cheung, a member of the Tong).”

7.At the hearing, the Defendant put forward two arguments:

(1)  First, he has the right to possession of No. 15B. The person who has been occupying No. 15B is his mother, Liu Ying Lan (廖英蘭).  He has the right to succeed to his mother’s right to possess, or occupy, No. 15B; or alternatively, as his mother’s agent.  Such right to possession does not depend on the existence of any beneficial interest on the part of his mother over No. 15B.

(2)  Second, he has the right to possession of No. 15B through his mother’s benefit interest in the land.

I shall put aside whether these arguments have been properly pleaded because, if they are arguable, the Defendant may seek leave to amend the Defence if necessary.

C1  The Defendant’s Mother’s Alleged Right to Possession

8.I agree that this issue involves Chinese customary law.  Generally speaking, the court can find such law either in the form of expert evidence or in textbooks and judicial decisions (Tang Yau Yi Tong v Tang Mou Shau Tso [1995] 2 HKC 245 at 252B-E; Chan Wai Hung as manager of Hop Yi Tong v Chan Oi Fong [2018] HKCFI 1897 at §34).

9.The Defendant relies on §76 of Tsang Ka Fai as Manager of Tsang Cheong Wang Tso v Tsang Wan Kiu and others, HCA1769/2006 (22 January 2014, unreported) where DHCJ Lok (as he then was) said that:

“Although under Chinese customary law, a female in a family has no inheritance right in respect of the property of her husband or father, there was a customary obligation on a tso manager to give due regard to the maintenance of the widow of a tso member during the latter’s lifetime (see §§16 to 18 of Mr Selby’s report). In order to take care of the interest and the concern of the widow, the widow might be asked to become a manager of the tso… Further, to make provision for the maintenance of widow might include allowing her to occupy the Tso’s property for her lifetime…” (emphasis added)

10.First, apart from the one sentence said by DHCJ Lok (as he then was) highlighted above, the Defendant has not adduced any expert evidence, or textbook, or any other judicial authority to support that the widow of a tso/tong member has a legal right to remain in possession of the tso/tong property during her lifetime.  In the said judgment, DHCJ Lok used the word “might”; he did not find that, under Chinese customary law, there is indeed such a right.  I am not satisfied that the Defendant has discharged the burden of showing that there is a triable issue in this respect.

11.Second and more importantly, assuming that it is arguable that a widow of a tso/tong member has the right to remain in possession of the tso/tong property during her lifetime, one then needs to consider whether Liu Ying Lan enjoys such right.  She is the daughter of Liu Sau Cheung (廖壽祥), a member of the Tong who had passed away a long time ago.  Her husband was not a member of the Tong.  It was her father who was a member of the Tong.  The person who was entitled to the alleged right could only be the Defendant’s maternal grandmother, namely, Cheung Mui (張妹).  In other words, the Defendant’s mother was not the widow of a member of the Tong.  The Defendant has not adduced any expert evidence, textbook or judicial authority to support that the alleged right extends to the daughter of a tso/tong member (in particular, where she is an adult and married).  It follows that, if the said alleged right exists, it cannot be invoked by Liu Ying Lan.

12.Third, even assuming that the alleged right can be invoked by Liu Ying Lan, the person who can assert such right must be Liu Ying Lan herself.  However, she is not a defendant in this case, and has not applied to intervene.  It is impossible to understand how the Defendant can take advantage of such right allegedly belonging to his mother.  First, such alleged right will, at best, be a life interest personal to his mother.  His mother is still alive.  There is no question of the Defendant “succeeding” his mother’s such right as claimed by the Defendant.  Second, as such right is personal in nature, it cannot be exercised through any agent.  Insofar the Defendant is merely trying to say that he has been occupying the land with the permission of his mother, such argument will not take his case any further unless he can prove that the alleged right does exist and his mother enjoys the alleged right in the first place.

13.Fourth, the Defendant’s argument is premised upon his assertion that Liu Ying Lan all along lives and stays at No.15B whereas he has not lived there for at least 30 years.  He claimed that he was only instructed by his mother to renovate the Old House; she has been occupying the Old House since the death of her mother, Cheung Mui, in August 1987; and she has been paying the Government Rent for No. 15B since 1994.  The Plaintiff replied that he never saw the Defendant’s mother living in the Old House.  After Cheung Mui died in 1987, No. 15B was occupied by one Liu Kam Chun (廖錦春) until around 1988 when the Old House fell into dilapidated condition.  After that, the Old House was unoccupied.  He only saw the Defendant and the workmen in early 2018.  The Demand Notes for Government Rent produced by the Defendant show that the correspondence address of Liu Ying Lan was not No. 15B.  The Plaintiff also pointed out that there was no electricity or water supply to the Old House, and it was not fit for human habitation.  To the best of his knowledge, Liu Ying Lan has been living in Fuk On House, Ka Fuk Estate, 33 Pak Wo road, Fanling, New Territories.  The Defendant has not adduced any evidence to support his assertion save and except the Demand Notes for Government Rent, which do not really support that her mother has been living at No. 15B.  Her mother has not made any affirmation to support the Defendant’s assertion.  No utility bill or photo supporting that his mother lived in the Old House has been produced by the Defendant.  Further, the Defendant had not replied to the Plaintiff’s or the Tong’s written demand letter and notice to quit at all.  In the circumstances, I agree with the Plaintiff that the Defendant’s assertion is not supported by credible evidence, and is unbelievable.

14.For all these reasons, the Defendant’s defence based on his mother’s right to possession of No. 15B is not arguable.

C2.  The Defendant’s Mother’s Alleged Beneficial Interest

15.The Defendant argues, in the alternative, that his mother has beneficial interest in No. 15B.

16.The Plaintiff claims that, under Chinese customary law, only a male descendant of the Tong has life interest in properties owned by the Tong (which would extinguish upon his death).  The Defendant’s parents are not direct descendants in the male line of the Tong; and as Liu Ying Lan is a female descendant, she does not have any beneficial interest in No. 15B. 

17.The Plaintiff cites Leung Kuen Fai v Tang Kwong Yu and others [2002] HKLRD 705 at 714, §16; Secretary for Justice v To Kan Chi and others [2000] 3 HKLRD 756 at 760F; Tang Yau Yi Tong and another v Tang Mou Shau Tso [1996] HKLR 212 at 217E-F; and Shenzhen Luohu Runan Industrial Ltd Co v Un Kau Kung Tso, HCMP2320/2000 (17 December 2001, unreported), §13).  The relevant Chinese customary law has also been reaffirmed in more recent cases such as Tang Che Tai and others v Tang On Kwai and others, CACV137/2007 (25 January 2008, unreported), §51; and Tsang Ka Fai as Manager of Tsang Cheong Wang Tso v Tsang Wan Kiu and others, HCA1769/2006 (22 January 2014, unreported), §35.  The concept of tso or tong land in the New Territories has been confirmed and explained by these judicial authorities.  A tso or tong is an ancient Chinese institution of ancestral landholding whereby land derived from a common ancestor is enjoyed by his male descendants for the time being living for their lifetimes and so on from generation to generation indefinitely.  Thus, every male descendant of the common ancestor automatically becomes at birth to an interest in the land for his lifetime; on his death his interests merges so as automatically to enlarge the interests of the surviving male descendants; thus his interest at any given moment during his lifetime depends on the number of male descendants then living and on his death it forms no part of his estate.  Hence, a tso/tong was formed in perpetuity.  Every member of a tso/tong must be a living male descendant, and each member only has a life interest in the tso/tong property and his interest would merge into the tso when the member passes away.

18.Although the law is well-settled by authorities, the Defendant argues that he should be given the chance to adduce expert evidence on Chinese customary law to support his argument that his mother has beneficial interest in No. 15B.  He relies on Man King Chuen v Hong Lok Yuen International School Association Ltd [2018] 4 HKLRD 294 at 308-309 where Recorder Yvonne Cheng SC held at §39:

“There is therefore no authority which suggests that the 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 law in question. The general practice of the courts in receiving expert evidence on 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 mind that since customs may have varied from time to time, or from place to place, a principle established in on 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.”

19.That was an application to adduce expert evidence on Chinese customary law.  Recorder Yvonne Cheng SC in fact held that there were no binding authorities on the proposition of Chinese customary law in issue (p 311, §53). It is unnecessary for me to consider in detail whether what the learned Recorder held in §39 is correct, though I do have some reservations.  Chinese customary law is a part of the Hong Kong law; and, as such, the principles of stare decisis shall apply in full force.  Assuming that there is indeed a binding authority on a proposition of Chinese customary law, and also that, on the facts of a particular case, such proposition clearly applies, I do not see the point of admitting expert evidence in an attempt to contradict such proposition.

20.In this case, the proposition of Chinese customary law that the Plaintiff relies on is simple: only a male, but not female, descendant of a tso/tong has beneficial interests in the properties thereof during his lifetime.  It is clear that there are authorities decided by the appellate courts in Hong Kong on this proposition (as cited above) which are binding on me.  This proposition in fact lies at the heart of the concept of tso/tong.  Even assuming that there is some expert evidence suggesting that such proposition is wrong, I would still be bound by those authorities.

21.But, more importantly, even assuming that expert evidence to contradict such proposition is admissible, the Defendant has not adduced any such expert evidence, or provided any reasonable ground to support that such expert evidence would be available.  The burden is on the Defendant to show a triable issue or an arguable defence.  The Defendant has failed to show that it is arguable that the said proposition of Chinese customary law is wrong. 

22.Applying the said proposition of Chinese customary law to this case, the simple fact is that the Defendant’s mother is a not male descendant of the Tong.  It follows that she does not have any beneficial interest in the Land (including No. 15B) at all; and hence, the Defendant cannot claim any right to possession derived from his mother’s alleged beneficial interest which simply does not exist.  His defence in this respect is unarguable.

C3.  “Some Other Reasons” for a Trial

23.At the hearing, the Defendant contended that, even if there is no triable issue or arguable defence, there ought for some other reasons to be a trial.  He stressed that the Plaintiff is seeking mandatory injunctions; and if judgment is granted, he, his mother and son, will be evicted from their “ancestral home”.

24.In the context of O.14, r.3(1), “some other reasons” has to be a reason that goes, or is relevant, to a defence to a summary judgment application (Hong Kong Civil Procedure 2021, vol 1, §14/4/10, p 333).  In principle, the adverse consequences, no matter how grave, that a defendant will suffer, if judgment is granted, are incapable of, without more, constituting “some other reasons” justifying a trial.  It is correct that where the plaintiff seeks equitable relief (eg a mandatory injunction), summary judgment may not be appropriate even if there is no defence as regards the plaintiff’s cause of action, as the question of whether the court should grant equitable relief may depend on fact-sensitive issues (eg acquiescence or hardship) (Hong Kong Civil Procedure 2021, vol 1, §14/4/9B, p 332).  Equitable remedies are discretionary in nature.  In a particular case, if the court takes the view that there are discretionary considerations relevant to whether equitable remedies should be granted, which cannot be resolved summarily, it is understandable why summary judgment should be refused.  In such scenario, there will be a triable issue on whether the discretionary remedy should be granted. However, on the facts of this case, I am not convinced that there is any triable issue on whether the injunctive remedies sought by the Plaintiff should be granted.  The prejudice that the Defendant may suffer if the injunctions are granted is clearly insufficient to raise any triable issue.

D.  CONCLUSION

25.For the above reasons, I hold that the Plaintiff is entitled to summary judgment.

26.At the hearing, the parties agreed that, if I am going to grant summary judgment, 6 months would be a reasonable time for the Defendant to vacate No. 15B and demolish the Structure.  The Plaintiff also confirmed that he will not seek damages.  Accordingly, I shall make the following orders:

(1)  The Defendant shall deliver vacant possession of No. 15B to the Plaintiff within 6 months;

(2)  the Defendant shall, at his own expenses, demolish and remove the existing structure(s) erected on No. 15B before delivering possession of No. 15B to the Plaintiff, failing which the Plaintiff shall be entitled to recover the costs of such demolition work after recovering possession, the amount of which shall be assessed by a Master if not agreed;

(3)  the Defendant, whether by himself, his servants or agents or otherwise, howsoever be restrained from entering, remaining on, or occupying No. 15B or any part thereof after possession is recovered by the Plaintiff; and

(4)  Liberty to apply.

27.I also make a costs order nisi that the Defendant shall pay the Plaintiff’s costs of this action (including this application and all costs reserved) to be taxed if not agreed.  Any party who intends to vary the costs order nisi shall do so by filing a written submission not more than 5 pages within 14 days, and the other party shall file a written submission in reply within 14 days thereafter.  I shall then dispose of the application on paper.

Mr R Kwan, instructed by Johnnie Yam, Jacky Lee & Co, for the Plaintiff

Mr Zhu Yuelin, instructed by Li, Chow & Company, for the Defendant