Li Tang Shi v. Li Wai Kwong and Another

HCA001763/1967

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 1763 OF 1967

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Coram: Briggs, J.

Date of Judgment: 16 June 1969

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JUDGMENT

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1. The plaintiff is the widow of one Li Wah Fuk who lived at Nam Pin Wai in the New Territories. Li Wah Fuk died without issue in or about 1908.

2. Though the first defendant was not born until 19 years after the death of Li Wah Fuk, he claims to be his first cousin once removed and he bears the same surname, Li. His name is Li Wai Kwong.

3. At the time of his death Li Wah Fuk was registered as the holder of certain landed property in the New Territories consisting of paddy fields and certain houses in or near the village of Nam Pin Wai.

4. These lands come within the ambit of the New Territories Ordinance. And the rights and duties of the plaintiff and of the defendants are therefore governed by that Ordinance. Section 13 of that Ordinance states that the Court shall have power to recognise and enforce any Chinese custom or customary right affecting land in the New Territories. It is, I think, agreed that the law to apply is the law of the Ching Dynasty as modified by custom: always remembering of course that the express provisions of the New Territories Ordinance prevail.

5. The plaintiff did not give evidence at the trial. She is an old woman and I was told she is not at all well. One of the complaints of the defendant is that he has been unable to trace the plaintiff over a long period of time. No address is given on the writ other than that of her solicitor. And in the witness box one Tang Pui King, her brother, when giving evidence as to her health merely said she was "in hospital". He gave no address. However she did make an appearance in court for a few minutes on one day of the trial, after the close of the case for the plaintiff. I think that this was probably done to allay any suspicion that the court might have had as to her non-existence. Be that as it may, she obviously is a very old woman and in poor health. I do not think it was incorrect not to call her in the circumstances. And no point was taken as to this at the trial. However it has made my task more difficult. For there are many questions on which her direct evidence would have been most valuable.

6. As I have said above, at the time of the death of Li Wah Fuk the lands were registered in his name. But on 28th March 1912 an Instrument was registered in the Land Registry at the District Office at Tai Po appointing trustees for the property. The plaintiff and two other persons both bearing the surname Li and both stated to come from Nam Pin Wai Village are declared to be the trustees for Li Wah Fuk Tso. On the same date the plaintiff seems to have redeemed a mortgage which was outstanding on the property in her own name; and the trustees and the Li Wah Fuk Tso sold a portion of the property: the purchase price being what was then the large sum of $1,400. This was stated to be paid to "Li Wah Fuk Tso". All these transactions are recorded in the Land Register.

7. The case for the plaintiff is that the property is not and never has been the family land of the Lis of Nam Pin Wai: and that it does not fall within section 15 of the New Territories Ordinance. The case for the defendants is that it is Li family land and has been properly registered in accordance with the section in question ever since the appointment of trustees in March 1912.

8. Considerable evidence was called as to the meaning of the expression "Tso". In that connection the plaintiff called one Hu Wa Yun who is an expert in Ching Law. He deposed that in Ching Law if a man died intestate leaving a widow but with no issue, the widow would be entitled to the income of his land. She does not succeed to that property, because a woman cannot succeed to landed property, but she has the right of management. She also has the right to choose a successor to her deceased husband but he must be the nearest relation of agnatic descent from her deceased husband. He must bear the husband's surname and be of the proper generation. There is no time limit for an adoption to be made. And no one can dictate to her whom she adopts.

9. That this is part of the Ching Law of succession is agreed by all the parties. Li Wah Fuk died intestate. He left land. The plaintiff as his widow became entitled to the management of the land. She also had the right to adopt a successor. This she has not done. There is evidence that at one time she was prepared to adopt the first defendant. And she did provide him on one occasion with a large sum of money to enable him to purchase a lorry for his use. However differences have arisen between the parties. And though the plaintiff has had over sixty years in which to act, no adoption has been made.

10. A witness called by the first defendant, Li Ying Kuen, told me that the plaintiff wished to adopt a certain person during the Japanese Occupation. The villagers objected because his surname was not Li and the first defendant who is a Li was alive. So no adoption was made.

11. No other candidate for adoption has been mentioned other than the first defendant. And Mr. Hu said that if the first defendant were the only person of agnatic descent from the deceased then if she adopted a successor, she would have to adopt the first defendant. Though she has the right to choose that right is strictly limited.

12. Mr. Hu also said that until an adoption is made the widow would be entitled to the whole income of the property. And that after an adoption she would be entitled to the whole income until the person adopted became of age when he would take over the management. After that she would still be entitled to maintenance out of the property until her death.

13. A widow so circumstanced has certain duties towards her husband's family, she should attend at the grave sweeping ceremonies, and pay for such re-internments as may be necessary. She must also pay to maintain any family tablets or temple. Mr. Hu was emphatic that the widow cannot in law be removed from the management of her husband's property by the village elders or by anybody else.

14. As to the meaning of "Tso", Mr. Hu had this to say. It is not, he says, a legal term strictly speaking. It is no more than a character added after a man's name to indicate that man is dead. It means "deceased" or "ancestor". He said that the institution of two trustees being appointed with the widow for such property is unknown to Ching Law. The expression "Tso" refers to a single person only unlike the expression "Tong" which means a family group.

15. Li Ying Kuen, a village elder from Nam Pin Wai, gave evidence in similar view to that of Mr. Hu.

16. Section 15 of the New Territories Ordinance deals with the registration of the manager of Tong and other land. The relevant portion reads as follows:-

"Whenever any land is held from the Crown under lease .............. in the name of a clan, family or tong, such clan, family or tong shall appoint a manager to represent it."

It is agreed that nothing turns on the word "manager" or "trustee". And that those words have been used indiscriminately in the land registers maintained under the Ordinance.

17. The expression "Tso" is not found in the Ordinance. But Mr. Akers-Jones, an administrative officer of wide experience, said that Tso in the New Territories 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 added in answer to a question from the bench that the Li Wah Fuk Tso was so registered and that there is no other section in the Ordinance under which registration of land so held could have been registered. He did not agree that when "Tso" is added to a person's name it only meant that that person was dead. The purpose of registering the property as such was to prevent the property from being alienated. Tai Kuen, the present village head of Nam Pin Wai Village, agreed that once land was registered as Tso land it ceased to be personal property.

18. Section 17 of the Ordinance does not apply in this case. That section provides for the registration of the successors to land left by a person who held it in his own right where no grant of probate or administration has been made. At the time of the death of Li Wah Fuk the plaintiff was not the "successor" to his land. She could not be by custom. There could be no successor until the plaintiff had chosen one by adoption.

19. Mr. Akers-Jones said that if the plaintiff had adopted a suitable person he would have been the owner and would then be registerable under section 17 of the Ordinance but later he altered his evidence and said that since the property was registered as a Tso property the registration of the adopted person would have to be under section 15 and not section 17. This point is immaterial so far as this case is concerned. In Lai Chi Kok Amusement Park v. Tsang Tin Sun etc.⁽¹⁾ it was held that the Tso in that case was the equivalent of a Tong and that therefore section 15 of the New Territories Ordinance applied.

20. The land, the subject matter of that case, is referred to there as "ancestral land". And the learned judge who tried that case particularly stressed that he was only dealing with that particular holding. The case did not decide that once the expression "Tso" is added a "Tong" is created in every case.

21. Mr. Akers-Jones said that the Instrument appointing trustees dated 28th March 1912 was an attempt to create a Tso property, by which he meant a family property. He said that this was how it was done customarily in the New Territories. He pointed out that a person who owns land himself cannot create a Tso because this cannot be done until he is dead. He can of course issue instructions during his lifetime that his land or part of it shall become family land after his death. This would be achieved by the addition of the expression "Tso" after his name in the register after his death: when a manager would have to be appointed.

22. I had the impression from the various witnesses called on this issue that the refusal or failure of a widow to adopt a son was virtually unknown. Mr. Akers-Jones' evidence was that if this were the case and the widow were to die without adopting then the family elders would chose a successor. And applying that rule to the present facts he said that the first defendant would be chosen if he were the closest male relative to Li Wah Fuk. He further said that if the widow failed to adopt the suitable candidate, then the clan elders could do so without her consent. I do not think that Tai Kuen, the present head of Nam Pin Wai Village, agreed with this. Mr. Akers-Jones said that in any case since the land was registered as a Tso, the re-registration of the land in the name of the first defendant would be under section 15 and not under section 17.

23. Mr. Litton for the plaintiff urged that the properties left by Li Wah Fuk were his personal property. Mr. Akers-Jones agreed that this was so and I agree with this also.

24. A further and perhaps more weighty point made by Mr. Litton was that the appointment of the trustees was a device simply to prevent the young widow, which the plaintiff was at the time, from alienating the land. In his closing address to the court reliance was placed on the minutes of a meeting held by a general meeting of the whole village of Nam Pin Wai at which five elders of the Li family or clan were present. This was held on 15th June 1959. That meeting was held to discuss a suggestion made by the first defendant that trustees should again be appointed for the Tso in addition to the plaintiff. And it is true that the possibility of the alienation of the land was raised. However no resolution was taken to advise the authorities to make such an appointment.

25. I do not think that this carries the matter any further. Before a sale of land could be effected by the plaintiff, notices would have to be published and the District Officer would have to know. It is well-known that a woman cannot succeed to land: how could a sale have been made without everyone who was interested being aware? And if this was the only reason why trustees were appointed in 1912, it is strange that there is no direct evidence that this was so either from the plaintiff or from some document. If the case is that the appointment was to circumscribe the widow's rights in her late husband's property the trustees would have been unnecessary. Everyone knows what her rights were.

26. The plaintiff called one Tang Pui King, who is the younger brother of the plaintiff. He said that the plaintiff was only about twenty when she lost her husband. It was suggested that the reason for the appointment of the two trustees in March 1912 was simply because of the age of the plaintiff, to assist her and to prevent her from being put upon. However no evidence was called that this was in fact the case. It was further pointed out that there had been at least two dealings in the land by the plaintiff personally in which the Tso was not mentioned between 1908, the death of Li Wah Fuk and the appointment of trustees in 1912.

27. Finally that there had been one dealing in part of the land since the creation of the Tso in the name of the deceased personally - i.e. without the addition of the expression "Tso". The plaintiff's brother agreed that the creation of a Tso was to ensure that the property should not be divided up. He made the point that it did not affect the customary rights and duties of the widow. She was entitled to maintenance and had the right to adopt a successor in accordance with custom whether she was registered as the sole trustee or as one of a number of trustees. He also added that the creation of a Tso did not imply that the lands were clan lands.

28. This is not an easy question to decide. But I am of the opinion that in the New Territories the custom is that if the expression "Tso" is added to the name of a deceased land owner and if trustees or managers are appointed for that Tso then the lands in question become family lands as that expression is used in the New Territories Ordinance.

29. In this case two persons bearing the same surname as the deceased were appointed together with the widow, the plaintiff, to be trustees for "Li Wah Fuk Tso". All the trustees are stated to come from Nam Pin Wai Village.

30. The two male trustees to appointed have long since died. And on 5th September 1939 the plaintiff was appointed as sole trustee. But this does not affect the main issue that is that the land in question is not personal but family land.

31. The expression "Tso" when added to a man's name, may, strictly speaking, mean only that the man is dead. But I am satisfied from the evidence I have heard that in the New Territories it goes much further. And that when managers or trustees are appointed to a Tso and registered, it is a clear indication that the land referred to in that memorial is family land. I rely for this assertion on the evidence of Mr. Akers-Jones and on the evidence of Tai Kuen. And I do not think that there was anything in the evidence of Tang Pui King which is contradictory.

32. Nor does this, properly looked at, run counter to the evidence of Hu Wa Yun which dealt with the Ching Law from which this local custom has developed.

33. Another way of looking at this is that the Tso property obviously is not personal property of the plaintiff. She manages it for herself and must keep it intact for a successor who must be a member of the husband's family i.e. in that sense it is family property. The land being family land as I have said was therefore properly registered under section 15 of the Ordinance.

34. The two transactions which preceded the creation of the Tso are, I think, irrelevant. There is one transaction in 1918 which concerns the surrender of portion of the land to Government in which the name of Li Wah Fuk is used without the addition of the expression "Tso". The sum involved was $3.27. I have heard no evidence about this. I do not think that conjecture assists but the expression Tso was probably omitted by mistake. I do not think that it is of importance to the issues I have to decide in this case.

35. As I have said on 5th September 1939 the plaintiff was appointed sole trustee for the Li Wah Fuk Tso, the other two trustees appointed in 1912 having died. I heard no evidence why the two deceased trustees were not replaced by two new trustees.

36. The next date with which we need concern ourselves in this case is 24th February 1959 when the District Officer, Ping Shan, received a letter from the first defendant in which he said he had an interest in the properties of the Tso and he wanted a statement registered to the effect that such properties could not be sold or mortgaged without his consent. The plaintiff objected that the first defendant had no interest in the property at that time. A meeting was held by the District Officer, one Mr. Fraser, on 6th May 1959 at which the parties were present. On some date between 6th May and 9th June 1959 the District Officer interviewed Tang Pui King. The plaintiff and first defendant were not present at that interview. As I have said already Tang Pui King is the brother of the plaintiff. I was told that he is a Justice of the Peace and an influential man in the area. He appears to have given correct advice namely that though the first defendant may be entitled to be adopted this had not occurred and he suggested that it was the fault of the first defendant that this had not occurred.

37. The decision of the District Officer was given on 9th June 1959. And it reads as follows:-

"LI Wai-kwong is claiming (1) that he is a partner of the properties registered in the name of Li Wah Fuk Tso. There is no evidence that he has a claim to these properties whatsoever, and therefore has no right to share in the management of the Tso. I refuse his application. Should, however, TANG Kam-yee, the Manager of Tso apply to sell any of the Tso property, the case should be referred to me again, when LI Wai-kwong will be given an opportunity to state his case again."

38. Meanwhile the first defendant appears to have complained to the elders of the village. For on 15th June 1959 there was a general meeting of the village of Nam Pin Wai at which the elders of the Li clan attended. I have already referred to this meeting. The meeting heard evidence of a family tree of the Lis starting with one Li Tim Sau who was alleged to be the great grandfather of the first defendant and the grandfather of the husband of the plaintiff. The meeting appears to have resolved that owing to his close relationship with Li Wah Fuk, the plaintiff must obtain his permission before she sold or otherwise dealt with the Tso property.

39. Chau Chi Chung who gave evidence for the second defendant is a village elder from Nam Pin Wai Village. He said he had prepared the family tree from the ancestral tablets which are in the house of the first defendant in the village and in the house also in the village in which the plaintiff used to dwell. The difficulty is this. I understand that the tablets only refer to the generation of the persons to whom they refer. They do not include the specific relationship of the members of one generation to the succeeding generation. There is a further difficulty in this case. Chau Chi Chung told me that Li Tim Sau was one of the 20th generation of the Lis. But in a family tree contained in a file included as an exhibit he appears as of the 19th generation. Again in the latter he appears as the granduncle of Li Wah Fuk: who according to Chau Chi Chung he was his grandfather. None of this is surprising. But it is relevant here because on 16th June 1959 Chau Chi Chung had an interview with the District Officer, Mr. Fraser, at which the first defendant was present, and at which he reported to him the details of what had occurred at the village general meeting. And produced from him the family tree of the Lis which he had compiled. The plaintiff was not present.

40. As a result the District Officer came to the following decision. It is dated 20th June 1959 and reads as follows:-

"Since last meeting, it has now been proved to my satisfaction that Li Wai-kwong is, in fact the rightful heir to Li Wah Fuk Tso. The Tso will remain under management of TANG Kam-yee. Should TANG Kam-yee apply to sell any of this property the case will be referred to the Chairman, Shap Pat Heung Rural Committee for investigation before a decision is made as to whether property can be sold or not. This ruling supersedes that of 9.6.59."

41. At that time the District Officer had jurisdiction to decide questions relating to land summarily under section 12 of the New Territories Ordinance, a section which has since been repealed. Mr. Litton argues that the first decision of 9th June 1959 was made by the District Officer in exercise of his jurisdiction under that section and I think this must be so.

42. He further argues that the second decision of 20th June 1959 was contrary to the laws of natural justice since it was made in the absence of the plaintiff, who in addition was never heard. Finally on this point that the matter having been decided properly on 9th June the first defendant is estopped from raising the matter again.

43. First of all what was decided on 9th June? There were of course no pleadings but what the first defendant was asking for was that the land register should include a statement that he had an interest in the present management of the Tso property in that the plaintiff could not sell any portion of it unless he consented. He also asked for the appointment of another trustee. The decision on 9th June was to the effect that he had no such right. And no trustee was appointed. In addition the door was left open so that there could be no sale or mortgage of the property without the first defendant being made aware of this. The reason for this decision is stated to be that there is no evidence that the first defendant has any claim to the Tso properties.

44. The second decision of 20th June confirms that the Tso was under the management of the plaintiff. Again the door was left open so that any intended sale or mortgage would be known to the first defendant. It will be seen that the District Officer did not change his decision. But on this occasion he did say that the first defendant was the heir to the Tso. However no additional trustee was appointed.

45. At first I thought that the first decision could be read as meaning no more than that the first defendant had no right to the property which he could enforce at the date of that decision i.e. on 9th June 1959, but that he might have enforceable rights on the death of the plaintiff. However I have reached the conclusion that this is not so because of the use of the words "whatsoever". Unfortunately Mr. Fraser could not be called to give evidence. He has retired.

46. There was provision under the old section 12 of the New Territories Ordinance for the District Officer to re-open and re-hear any case within three months and to reverse or alter his decision. And I think that the District Officer considered that he was invoking that power when he made his decision on the 20th of June. However this does not cure the defect that only the first defendant was present when that decision was arrived at. Indeed there is no evidence before me that the plaintiff knew anything at all about this second decision until March 1961.

47. But does this matter? I do not think that the rules of natural justice and the doctrine of res judicata are applicable. On one occasion a District Officer was of the opinion that the first defendant was not the heir and on a later occasion that he was, but the question whether or no he was the heir was not the question to be decided before him. The question was not whether the first defendant was the heir to the Tso or not. It fell far short of that. But in my view the District Officer's remarks on the second occasion that he was the heir to the Tso were obiter and not part of the decision. Nor were they the ratio decidendi of that decision.

48. If I am wrong however in this view and if the correct interpretation of the decision is that urged by Mr. Litton the second decision cannot stand since it was made without the knowledge of the plaintiff who never had the evidence produced by Mr. Chau brought to her attention. Indeed there is no evidence before me that she ever heard anything about the second decision at all until March 1961.

49. It would seem that in March 1961 the first defendant again applied to have his name included on the register as a manager of the Tso. The District Officer heard both parties and it appears that his decision was communicated to them. He again refused to register the first defendant as an additional manager. His order purported to amend his previous decision of 20th June.

50. In my view this purported amendment may be safely ignored. The decision i.e. that the first defendant shall not be appointed a manager of the Tso remains the same.

51. The next date with which we are concerned is 22nd November 1965 when the first defendant was appointed an additional manager of the Tso with the consent of the District Officer. This came about in the following manner.

52. On 2nd February 1965 the plaintiff informed the District Officer that she wished to resign her position as manager of the Tso and wished the first defendant to take her place.

53. At this time there were negotiations taking place between the plaintiff, the first defendant and the District Officer in which it was suggested if not agreed that the management of the Tso should be divided: the land at Sai Yu Chung to be managed jointly by the plaintiff and first defendant; and the rest of the Tso land to remain under the sole managership of the plaintiff.

54. On 26th February 1965 notices were posted to the effect that the plaintiff intended to transfer certain Tso land to the first defendant free of consideration.

55. However all this fell through, the plaintiff changed her mind or had her mind changed for her. And no transaction appears to have been registered.

56. On 1st August 1965 the first defendant applied to be registered as an additional manager. Notices were posted on 10th September. Attempts were made to serve the plaintiff with such notices. But I was told that this was not found to be possible though Nam Pin Wai Village was searched and enquiries were made at a certain nunnery and at the house of her brother Tang Pui King.

57. In consequence, and in order "to prevent unilateral dealing in the property" (as the relevant minute on the District Officer's file reads) the first defendant was appointed an additional manager.

58. I think it is fair to him to say that in reaching this decision the District Officer had the following points in mind:-

59. The appointment was purported to be made under section 15 of the Ordinance.

60. It is clear from that section that the correct procedure for the appointment of a trustee or manager is first the Tong or family or clan appoints a manager. Then that such an appointment has been made is proved to the District Officer. Finally the person appointed is registered provided that his appointment is approved by the District Officer.

61. The District Officer has no power to appoint a manager unless the Tong or family or clan has appointed him first. The appointment originates with the Tong, family or clan. Not with the District Officer.

62. I think that Mr. Akers-Jones fully realised this at the time but took a chance in the interests of preserving the Tso and to settle what was an uncommonly long dispute. He was also in difficulties because he could not find the plaintiff.

63. This may well be so but I do not think that the appointment was validly made according to the law. There is power in the section for a District Officer to cancel the appointment of a manager, that is one who has already been approved by the Tong etc. and registered, and to select a manager in his place.

64. If Mr. Akers-Jones had cancelled the appointment of the plaintiff and selected the first defendant in her place, the appointment of the latter would perhaps have been in order.

65. As it is, it was not and I hold that the appointment of the first defendant as the additional manager on 22nd November 1965 was null and void.

66. The next date with which we need concern ourselves is 8th November 1967 when the plaintiff was removed from the managership of the Tso.

67. This came about as follows. After an exchange of letters between the District Officer and the solicitor of the first defendant in March 1966, the first defendant acting through his solicitor requested the District Officer, Yuen Long, to cancel the appointment of the plaintiff as manager. This was on 26th April 1966.

68. The reasons given for this request were that she had not been fulfilling the customary duties with regard to the grave sweeping ceremonies, and had refused to pay for the re-internment of certain Li ancestors. There were three additional complaints, i.e. that she had not rendered any accounts of the Tso properties, that she had left the village and could not be found and that she was too old and feeble to manage the properties.

69. These complaints have been repeatedly made since. I was told that the first two, those concerning ancestor worship are considered the most important. I am uncertain whether the complaint seeks to distinguish her duty as the widow of Li Wah Fuk from her duty as the manager of the Li Wah Fuk Tso. The letter of the solicitor referred to the grave worship and the ancestors of the "Tso".

70. The District Officer wrote a letter to the plaintiff in which the complaints of the first defendant were set out, on 7th May 1966. This letter does not refer to the Tso in connexion with the first two complaints. And it asks for a reply within a fortnight.

71. For a long time the plaintiff could not be traced. Various expedients to find her were taken by the District Officer. Finally, on 29th June 1967, notices were published stating that the application has been made setting out the reasons therefor and a sking any person who objected to an order removing the plaintiff being made to submit his reasons to the District Office within a month.

72. On 20th July Messrs. Wong & Co., a firm of solicitors, informed the District Officer that they were acting on behalf of the plaintiff. They informed the District Officer that the plaintiff denied the allegations contained in the notice and that their client objected to being removed from the post of manager.

73. On 8th August the District Officer sent a reply in which it was stated that a simple denial was insufficient and "that a substantive reply to the specific charges must be given" in order that a decision whether or not to cancel the appointment of the plaintiff could be made.

74. The plaintiff changed her solicitors in October 1967 and on 20th of that month they asked for certain information from the District Officer relative to their client's case. They referred to two decisions which had been made in connexion with this matter in 1959 and 1965 with which I have already dealt above and requested that notes of the proceedings resulting in those decisions be supplied to them.

75. The solicitors also asked for one month's extension within which to file a reply to the charges made against the plaintiff.

76. Unfortunately this letter was misunderstood and copies of the decisions themselves and not the notes of proceedings were sent in reply. This was on 25th October 1967. The District Officer pointed out the inordinate delay and refused to grant a month's extension. However he wrote:-

"You may however have two weeks from the date of this letter to prepare your case so that I may give it due consideration in order to settle the matter once and for all within one month from now".

77. I understand this to mean that the District Officer would allow up to and including 8th November for the plaintiff to collect all the evidence she required for her case and to file a defence, as it were, if she considered it necessary, and that after that there would be a hearing of some sort which would come on before 25th November. In my view it can have no other meaning.

78. Be that as it may, the plaintiff's solicitors wrote to the District Officer on 30th October repeating their request for the notes of the proceedings in 1959 and 1965. This was received and acknowledged on 2nd November though I understood Mr. Sweetman to say that he only saw it on 8th November.

79. The plaintiff had engaged counsel on 3rd November and on 4th November Mr. Arculli of counsel phoned Mr. Sweetman, the District Officer, to discuss what procedure he was going to adopt in disposing of the matter, and whether evidence would be called etc. He told me in evidence that he arranged with Mr. Sweetman for a preliminary discussion to be held on 8th November so that an agreement could be reached as to this very important matter, and he would not be taken by surprise.

80. It was decided that Mr. Arculli should have leading counsel and Mr. O.V. Cheung was chosen. By this time counsel was in possession of the complaints made by the first defendant and had received certain instructions thereon.

81. On 8th November Mr. Cheung went to see the District Officer. He wanted two things (1) the notes of the proceedings in 1959 and 1965. He wanted to know the reason why Mr. Fraser had held that the first defendant was the heir to the property because his instructions were that he was not a blood relative of Li Wah Fuk, and further why the first defendant had been made an additional manager of the Tso without first consulting the plaintiff and (2) a general discussion as to the background of the case including the procedure to be adopted. Earlier that morning Mr. Cheung had phoned the District Officer and told him that he was coming in place of Mr. Arculli. Mr. Cheung said that it was clear that it was to be an interview with the District Officer, and that at no time was a hearing of the matter mentioned or suggested. Thinking he was only going to have a preliminary discussion with the District Officer, he had told the plaintiff that she need not attend.

82. At the District Office he found the first defendant and two village elders were present. Mr. Cheung outlined his client's case dwelling on her status and the fact that the appointment of the first defendant as a trustee was without her consent and knowledge. One of the elders and the first defendant spoke briefly reiterating the charges against the plaintiff. The District Officer said that he would deal with the matter and then and would make an order removing the plaintiff as co-manager. Mr. Cheung was taken completely by surprise and protested that he had not come for a hearing. He also pointed out that he had all of that day on which to make a defence to the charges. And he asked for an adjournment.

83. Though the District Officer had given himself until 25th November to dispose of this matter finally in his letter to the plaintiff's solicitors of 25th October, and though there was still the whole afternoon of 8th November at the disposal of Mr. Cheung, this request was refused. And the order was made.

84. Mr. Sweetman told me that he was not satisfied with the series of delays on the part of the lawyers of the plaintiff and indeed thought that these were intentional. He included in this Mr. Cheung's request for an adjournment on 8th November. He also thought that it was for the plaintiff to show cause why she should not be removed rather than for the first defendant to prove a case against her.

85. He agreed that two phone conversations were held with the plaintiff's lawyers and that they expressed an intention of discussing the matter with him and he told them that he wanted to finalise the matter as soon as possible. I also understood him to say that he had not made up his mind what procedure to adopt for the hearing at that time.

86. It clearly emerges from his evidence that by 8th November, indeed for long before, the District Officer firmly believed that the allegations of the first defendant were true. That and his belief that the delays of the plaintiff were tactical caused him to dispose of the matter as he did on 8th November. he said that he told counsel for the plaintiff that he could always appeal against his decision.

87. Mr. Litton for the plaintiff urges that in coming to the decision as he did Mr. Sweetman acted against the rules of natural justice.

88. Section 15 of the New Territories Ordinance gives no indication of what procedure should be adopted if proceedings are contemplated to remove the manager of a Tso "for good cause". What I have to decide is whether the hearing which occurred on 8th November was contrary to natural justice.

89. I will say at once that I think that it was, and that the decision to remove the plaintiff cannot stand. The removal of the plaintiff was a serious matter and affected not only her dignity but perhaps her pocket also. She was, if available, entitled to be heard. On 8th November it was apparent that she could be made available on a suitable date. Again, there seems to have been a misconception as to the burden of proof. It was not for the plaintiff to exculpate himself before a hearing. She denied the charges through her solicitors and that in my view was all that was necessary at that time. The matter should then have been thrashed out at a hearing in the presence of both parties. By his action in dealing with the matter there and then and in not granting an adjournment the plaintiff was precluded from giving her version of the facts.

90. The District Officer therefore decided the matter unilaterally. It is true that her lawyer was present but he was prevented from calling his client though he was well within the time allowed for a hearing of the matter by the District Officer himself. I must also remark that I am at a loss to understand the need for haste at that stage. The matter had dragged on for a very long time and a few more days would have made no difference. Such a further short delay would not affect the first defendant who anyway, if I understand his evidence correctly, was collecting certain of the Tso rents.

91. I will say at once that I come to this conclusion very reluctantly for the whole of the evidence which I have heard in this case can bear the interpretation that the plaintiff is no longer fit to be the manager of the Tso if only because of her advanced age. I should perhaps add that there was evidence before me that in custom a widow cannot be removed from the management of a Tso because she is old and incapable but that of course does not affect the power of the District Officer to do so if he considers in the circumstances (which may not always be the case) that to do so is "for good cause" under section 15 of the Ordinance.

92. The order removing the plaintiff as manager dated 8th November 1967 cannot therefore stand.

93. From the above it will be seen that at present the plaintiff remains the sole trustee or manager of the Tso. And the appointment of the first defendant as additional manager of the Tso must be set aside.

94. I will now deal with the reliefs sought:-

95. The first defendant has asked for certain declaration in his counterclaim. As I have held that he is not entitled to a beneficial interest until after the death of the plaintiff if at all I must refuse to make any order. It may well be that he is the rightful heir but I do not think it would be proper to make such a declaration upon the evidence which I have heard in these proceedings. That is a matter for determination perhaps by the village elders. It has not been decided in so many words. The record of the meeting of the village elders and the Li elders of 15th June 1959 does not so decide. There has been a deduction from a family tree that he is the heir but as I have said above I do not consider that evidence very satisfactory.

96. It follows that I can make no declaration. I will now adjourn to hear argument on the proposed orders to be made and to hear the parties as to costs.

Representation:

Litton (Samuel Soo & Co.) for Plaintiff.

Gittins Q.C. & Ching (Lo & Lo) for 1st Defendant.

Stapp C.C. (Legal Department) for 2nd Defendant.

(1) (1965) H.K.L.R. 413.