Tang Kai-chung and Another v. Tang Chik-shang and Others

HCA002071/1966

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 2071 of 1966

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Coram: Mills-Owens, J.

Date of Judgment: 18th April 1970.

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JUDGMENT

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1. This is an action for the partition of 'Tso' lands, the capital value of which runs into several millions of dollars. It appears that there is no local precedent of which any record is available, and my task has been rendered more difficult owing to the absence of translations at various stages of the evidence, partly owing to the reluctance of the defendant parties in person in the earlier stages of the hearing to produce documents in their possession.

2. Speaking generally, a Tso may be shortly described as an ancient Chinese institution of ancestral land-holding whereby land derived from a common ancestor is enjoyed by his male descendants for the time being living for their lifetimes and so from generation to generation indefinitely. Thus every male descendant of the common ancestor automatically becomes entitled at birth to an interest in the land for his life-time; on his death his interest 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. But this is speaking generally; some elaboration will be required in the present case. A Tso is named after the common ancestor. In the present case the common ancestor was Tang Tsap Ng; the Tso in question is called the Tang Tsap Ng Tso, otherwise the Tang Tsap Ng Tso, 'Tsap' sometimes being rendered in English as 'Chap' or 'Chup'. It is also referred to in some of the documentary exhibits as the 'Chi Sin Tong'. A Tso (of the nature which this case concerns) is formed not by the common ancestor but by his son or sons on or after his death, and as a matter, it would seem, of filial duty in accordance with Confucian tradition for the purpose of veneration of the common ancestor.

3. The Tsap Ng Tso's lands - there are some hundreds of 'lots' or parcels - are all situated in the New Territories (hereinafter called the 'N.T.'), a part of the Colony held under lease from China. I shall refer to the area in more detail later. Tso's are common in the N.T. some being of considerable antiquity; not so elsewhere in the Colony. If Tso's are formed at all nowadays (of the nature which this case concerns) it would I imagine be in rural communities and in respect of rural areas of the Colony only, in particular in the N.T. It is accepted, I think, and in any event I would hold it on the evidence to be so, that nowadays the sons of land-owners dying intestate are not bound to form a Tso; it depends entirely on their conception of their filial duty. If a Tso were not formed the estate of a Chinese person dying intestate, domiciled in the Colony or leaving immovable property situate in the Colony, would (subject possibly to pending legislation) descend to the persons entitled on intestacy under Chinese law or custom, i.e. mainly to the sons (see, generally, In the Estate of Tse Lai Chiu (1969) H.K.L.R.139). I have in the foregoing paragraphs twice referred to Tso's 'of the nature which this case concerns'; I do so for the reason that there have been instances where a living male person has on purchasing property had it conveyed not to himself but to his 'Tso' - in effect creating a settlement. It appears also that in some circumstances a Tso may be formed after the death of a male person dying intestate without male issue, by means of the adoption of a son for him after his death. The present case is different.

4. Tang Tsap Ng the common ancestor in the present case, died about 160 years or so ago. He was a person of distinction in his day and acquired considerable landed wealth. His grave and those of his two wives are in China; the remains of a third wife or concubine are situate in the Colony, in the N.T. The Tang family is one of the main lineage groups in the N.T. A number of villages in the Ping Shan area consist very largely - some almost exclusively - of members of the family. The family tradition, in the N.T., goes back at least 27 generations; the common ancestor in the present case, Tang Tsap Ng, was of the 20th generation. In 1929 there were about 100 living male descendants of Tang Tsap Ng; at the time of the trial they were about 233 in number.

5. Today, it is agreed, there is no such institution as a Tso in China; it has been abolished. And, as I understand, ancestor worship is discouraged there. It is accepted that for many years past the descendants of Tang Tsap Ng have not, as they previously did, proceeded to China to perform the usual rites at the graves of Tang Tsap Ng and his wives there. In the N.T., however, the usual rites are faithfully adhered to, at the site of the remains of the third wife or concubine.

6. The lands of the Tang Tsap Ng Tso were divided into 9 groups, of which 8 now subsist; each group comprising numerous identifiable 'lots' of land. The 9 groups of lands arose in this way: Tang Tsap Ng had six sons; the male descendants of each son form a separate Tong (or Fong) and 6 of the 9 groups were formed to correspond with the number of Tongs; the other 3 groups were formed respectively as (1) the Worshipping group (the Tsai Sau group); (2) the Education group; and (3) the Reserve group. The division into the 6 (Tong) groups, the Worshipping group, and the Education group, respectively, are clearly evidenced by entries in Ex. P 49 made in 1861. The Book was prepared by the grandfather of the 4th defendant and comes from that defendant's custody. The first entries are dated 1836. I see no reason to regard it as other than a genuine document. It makes no mention of the Reserve group which presumably was formed at a later date.

7. The Education group was formed, as the same book Ex. P 49 indicates, to provide for members of the Tso who passed certain state examinations of Imperial China. In 1946, the objects of this group having ceased to exist, it was arranged that, out of its total rental value of piculs of rice grain, 28.8 piculs should in future be paid into the Worshipping group and the balance into the Reserve group; the individual 'lots' of land being identifiable in this respect. The main feature of the Reserve group is that it is out of the rentals of this group that 'Pak Kam' is paid; 'Pak Kam' is a sum paid to the representatives of a relative, usually a female relative, of a member of the Tso on his or her death at or over the age of 51 years. The sum paid is very small, insignificant in itself, but no doubt significant as a token. The 6(Tong) groups of lots were not appropriated specifically to particular Tongs; the 6 Tongs manage the 6 groups in rotation, with the object, no doubt, of securing equality of enjoyment of the income of the lots comprised in each of the 6 groups so far as possible (it is agreed that the income and possibly the value of the lots comprised in each of the 6 groups is not precisely the same); thus each Tong collects the income of a different group annually, in cycles of 6 years; each Tong distributes the income it collects among its own members equally - it is in this sense that it is said that the income of the Tso is distributable per stirpes. The number of individual members of the Tso belonging to each Tong respectively varies considerably, and thus their individual entitlement of income varies considerably. The names of the 6 Tongs, the number (as nearly as possible) of members comprised in each, and other relevant details, as at the date of the trial, were agreed to be as follows:-

8. For the purposes of these proceedings the above figures of membership are accepted as sufficiently representative. Obviously, partition night be to the advantage of the members of any smaller Tong in establishing them to be entitled to the lands allocated to their Tong free from any claims by the larger Tongs. The plaintiffs' claim as pleaded is for partition of all the lands of the Tso, but counsel for the plaintiffs has indicated that they do not press for the Worshipping group to be partitioned and, further, would be content that the augmentation of that group by the Education group for which arrangement was made in 1946 should remain, and also for the Reserve group to remain in so far as it is necessary to provide for future payments of 'Pak Kam'.

9. Under section 15 of the New Territories Ordinance (Chapter 97) a Tso must have a registered manager "who shall, after giving such notices as may be prescoibed, have full power to dispose of or in any way deal with the said land as if he were sole owner thereof, sub ject to the consent of the Land Officer, .....". It is also provided by the section that "Every instrument relating to land held by a clan, family or t'ong, which is executed or signed by the registered manager thereof in the presence of the Land Officer and is attested by him, shall be as effectual for all purposes as if it had been executed or signed by all the members of the said clan, family or t'ong." The present practice in the case of the Tsap Ng Tso is to appoint 6 managers, i.e. one from each Tong; as indicated above they are the two plaintiffs and four defendants respectively. Up to the year 1913 there were only 3 registered managers.

10. Here I would interpolate that there is a dispute as to the identity of the 2nd plaintiff, who is known as Tang Wai Ming but claims that he has the alias Tang Hi (or Hei) Un. It is disputed by the defendants that he has the alias Tang Hi Un and that he is the person who became a registered manager in that name in 1929. The defendants' witness Tang Siu Yuen says that Tang Hi Un was his brother whom he has not seen for many years, and that Tang Wai Ming is his cousin. I find the evidence of Tang Siu Yuen most unconvincing, and the 'family book' he produced to lack authenticity. I have no hesitation in accepting that Tang Wai Ming is genuinely a registered manager in his genuine alias of Tang Hi Un.

11. It will be observed that under section 15 of the N.T. Ordinance registered managers, in dealing with Tso lands, have the powers of sole owners, subject to the consent of the Land Officer to any transaction. What is proposed in the present proceedings is the partition of the Tso lands (exclusive of the Worshipping (or Tsai Sau) group as augmented in 1946, and exclusive possibly of some part of the Reserve group) into 6 groups of equal value (with provision for equality money, if necessary); each Tong to be allocated one such group exclusively of the other Tongs (the partition to be effected, if considered necessary or desirable, by the drawing of lots; and, possibly, the right to the first drawing to be decided by lot). As I have said, the proposal for partition does not extend to any alteration in the Worshipping group, which would remain as it is, devoted to worshipping purposes as hitherto and managed as hitherto, namely by each of the 6 Tongs in rotation. Thus, it is suggested, the link of the whole clan, consisting of the 6 Tongs, with the common ancestor would be retained. Further, the lands as partitioned would, on partition, remain clan or ancestral lands, but of each Tong exclusively of the other Tongs. In this way, it is suggested, pressure by the stronger Tongs (in terms of number of members) on the weaker Tongs - having the object of securing greater benefits from the Tso lands than those they are lawfully entitled to - will be avoided. These allegations of oppression of the weaker Tongs by the stronger Tongs fall into various categories. It is alleged that in recent years whenever Tso lands have been sold, or resumed by the Government on payment of compensation, the stronger Tongs have insisted that the proceeds be, in some part, distributed equally among all the members of the Tso, i.e. per capita and not per stirpes. The defendants say that is consistent with custom in that the mode of distribution of such capital moneys, whatever be the mode of distribution of income, is, by custom, to be decided at a family meeting. It is also alleged by the plaintiffs that compensation moneys due in respect of lands resumed by the Government have not been collected by the registered managers because the stronger Tongs, acting through their registered managers, will not agree to the moneys being collected except on terms of distribution of at least a part of such capital moneys among all the members of the Tso per Stirpes. The defendants deny this, saying that the delay in collection of the moneys is due to genuine objection to the amount offered by the Government. Another example of alleged oppression of the weaker Tongs arises out by the practice whereby Tso lands are sometimes let to individual members of the Tso, as tenants of the Tso. It is alleged that in some instances such member-tenants have sub-let at considerable profit to themselves personally; that in one instance the Tso has cancelled the tenancy of members of the Tso but they refuse to quit and continue to sub-let at a considerable profit to themselves. It is further alleged, as a reason for partition, that large areas of the Tso lands are allowed to remain waste or unlet; that, generally, the Tso lands could be managed more efficiently but for the disputes arising out of the disparity in numbers; that the position is such that concerted action by the 6 registered managers in the best interests of the Tso as a whole, including managing or developing the Tso lands to the best advantage, is virtually impossible by reason of dissension. I have no doubt that all these allegations of oppression and mismanagement have been substantially made out, on the evidence.

12. The plaintiffs claim to have the lands partitioned as of right, basing their claim on the provisions of the English Partition Acts of 1539 and 1540 (31 Hen. 8 c.1 and 32 Hen. 8 c.32), applicable in Hong Kong by virtue of the Application of English Law Ordinance (Cap.88). (I refer to the repeal of these Acts in their application to Hong Kong, by an Ordinance coming into force after the hearing, at the end of this judgment.) Alternatively, if the matter is one of discretion, the plaintiffs claim that sufficient grounds exist by reason of oppression and mismanagement for such discretion to be exercised in favour of ordering a partition. The defendants' main grounds for opposing a partition are as follows: first, they say that the English law of partition, as it applies in Hong Kong, is not applicable to Tso lands or at least to Tso lands according to the custom prevailing in the N.T. Secondly, the defendants say that all the lands of the Tang Tsap Ng Tso, not merely the Worshipping group, are 'Jing Sheung', that is to say lands primarily dedicated to use for worship of the common ancestor, Tang Tsap Ng, and the repair of his tomb and those of his wives; all the lands of the Tso, they contend, are impressed with a 'trust' for such purposes, not merely the Worshipping group. Thirdly, the defendants say, it would be contrary to custom to grant a partition of Tso lands; in particular, it could be contrary to the custom of the Tang Tsap Ng Tso. In the matter of custom the defendants rely on section 13 of the N.T. Ordinance which provides:-

"13. In any proceedings in the Supreme Court or the District Court in relation to land in the N.T. the court shall have power to recognise and enforce any Chinese custom or customary right affecting such land."

The defendants contend that in the light of the history of the N.T. and of the legislation specifically affecting the area, the provisions of section 13 are mandatory; alternatively, if the application of custom is a matter of diveretion, the circumstances of the present case are such that custom ought to be applied and an order of partition refused.

13. It is necessary to refer to the history of the N.T. and its legislation in some detail. By a Convention between Great Britain and China signed at Pekin on the 9th June 1898 the are a known as the N.T. was leased to Great Britain for 99 years. By the N.T. Order in Council made on the 20th October 1898 it was provided that the N.T. should be part and parcel of the Colony of Hong Kong, and that from a date to be fixed by proclamation to be made by the Governor all Laws and Ordinances in force in the Colony should take effect in the N.T. The proclamation was duly made and published on the 8th April 1899 (Hong Kong Government Gazette G.N. No. 202 of 1899). Accordingly, and by virtue of section 7 of the Supreme Court Ordinance, 1873 (section 5 of Cap.4 of the Revised Edition of 1950), such of the laws of England as existed on the 5th April 1843 became in force in the N.T. (as well as in the rest of the Colony) 'except so far as the said laws are inapplicable to the local circumstances of the Colony or of its inhabitants, and except so far as they have been modified by Laws passed by (the Colony's) legislature'. The N.T. (Exemption from Laws) Ordinance, 1899 provided for certain Ordinances of the colony not to apply to the N.T. but this is not material to the present case; the Ordinances made inapplicable concerned such matters as building and public health. By the Local Communities Ordinance 1899, applicable only to the N.T., provision was made, inter alia, for establishing local tribunals with jurisdiction to decide civil disputes; the jurisdiction not to extend to debts etc. over 100 dollars or to land exceeding 100 dollars in value; the proceedings to be conducted in Chinese, to be informal, and the duty of the tribunals being to do sustantial justice, subject to rules to be made by the Governor in Council; legal practitioners were to have no right of audience. The next material step appears to have been the establishment of a land court in the N.T., by the Land Court (N.T.) Ordinance 1900; the Ordinance provided that "All claims to land in the N.T. shall .......... notwithstanding any previous registration, be heard and determined by a Land Court .........." On claims being established titles were to be granted, and in order to enable that to be done it was declared by section 17 that all land in the N.T. was the property of the Crown during the term of 99 years specified in the Convention of 1898. A member of the Legislative Council, Mr. Whitehead, published a formal protest against the manner in which the Bill had been carried into law (Gazette G.N. No. 115 of 1900). Later in the same year the N.T. Land Court Ordinance, 1900 was passed in terms little different from the Land Court (N.T.) Ordinance, 1900. According to a Report (published in the Gazette as G.N. No. 200 of 1905) the Land Court completed its work by the end of 1904; the necessary surveys had been completed earlier in that year. In 1905, the N.T. Land Ordinance, 1905 was passed. It applied specifically to the N.T. but provided that the Governor might exempt any land in the N.T. from its provisions. It made sundry provision concerning the registration of instruments affecting land in the N.T. By section 6 the Land Officer was empowered 'to decide in a summary way' all questions and disputes affecting land (excepting, unless with consent, disputes to which the Crown was a party, or affecting land having a capital value exceeding $5,000 or an annual value exceeding $500); also that the Land Officer should "have power to recognise and enforce any Chinese custom or customary right in relation to land", i.e. in terms similar to the present section 13 of Cap.97. Under section 8, legal practitioners were not to have any right of audience except by special permission of the Land Officer. Section 9 provided that every judgment or order of the Land Officer should be conclusive, subject to an appeal to the Supreme Court if the Land Officer certified the subject-matter to exceed $2,000, or by leave of a judge. Section 10 provided that except by way of appeal no proceeding relating to land in the N.T. might be commenced in the Supreme Court unless the Crown were a party or the Land Officer certified the land to be worth more than $5,000 or to have an annual value exceeding $500. Under section 11 it was provided that the Supreme Court should "have power to recognise and enforce any Chinese custom or customary right ..........", i.e. again in terms similar to the present section 13 of Cap.97. Section 13 made provision for the registration of managers in respect of any land "held from the Crown under Lease or other grant, .......... in the name of a clan, family or T'ong", and conferred the powers of sole owners on such managers in dealing with the land, subject to the consent of the Land Officer (in terms similar to those of the present section 15 of Cap.97). It appears that Tso lands have always been treated as 'clan, family or t'ong' lands. These statutory provisions were repeated in the N.T. Regulation Ordinance, 1910 (No.34 of 1910) which became (with amend-ments) Chapter 97 of the Revised Edition of the Laws of 1950. There were however some changes in the pecuniary limits of the Land Officer's jurisdiction. In the meantime, that is to say in the year 1905 and onwards (the lands in the N.T. having been surveyed and the Land Court having completed its work) Crown Leases were issued, taking the form of 'block' grants i.e. grants by the Crown as lessor to "the several persons, clans, families, and " ...(illegible)" whose names are set out in the Schedule hereunder written". The following is an example, taken from such a Schedule, of one of the lots granted to the Tang Tsap Ng Tso:-

As will have been observed there were then only three registered managers and they were described as 'trustees'. The first time six registered managers were appointed appears to have been in 1913 from which date there have always been six, i.e. one from each Tong. The term of the Crown Leases were expressed to be 75 years from the 1st July, 1898 (except where a different term was stated against any particular lot in the Schedule) subject to renewal as mentioned below. Provision was made for re-assessment of the (annual) Crown rents after 10 years; so far as appears, they have not, in fact, been revised, except where a change of user has been permitted by the Crown as landlord; user otherwise being limited to that stated in the Schedule under the heading 'Description of Lot'. In the case of any lot demised for 75 years there was a proviso for renewal for the further term of 24 years less 3 days, without fine or premium but at a rent to be assessed - the effect being that the Crown Lease would expire 3 days before the expiration of the term of 99 years expressed in the Convention of 1898. It is important, from the point of view of any proposal for partition, to observe that where the Lease demised several lots to the same person, or body, as in the case of the Tang Tsap Ng Tso, it took effect as a several demise of each lot at a rent applicable to each Lot. This, I think, appears from the form of the Lease exhibited (Ex. p 70); thus the operative clause is in the terms "His said Majesty KING EDWARD VII DOTH hereby grant and demise unto each Lessee ALL that piece or parcel of ground situate, lying and being in Survey District No. 121 in the N.T. in the Colony of Hong Kong set out and described in the Schedule hereto opposite to the name of such Lessee AND which said piece or parcel of ground is more particularly delineated and described on the plan or plans of Survey District No.121 attached hereto according to the lot number set out in the Schedule hereto opposite to the name of such Lessee and marked on the said plan Together with the messuages, erections and buildings thereon and all the easements and appurtenances whatsoever to the said demised premises belonging .....". The habendum is in the terms: "To HAVE and to HOLD unto each Lessee the said piece or parcel of ground and premises .....". The reddendum is in the terms "yielding and paying therefor yearly and every year the sum stated in the Schedule hereto against the said Lot number ..."; similarly in respect of the covenant for payment of the rent of each lot. As I see it, the Lease takes effect as a several demise of each lot at the Crown rent severally issuing therefrom. Accordingly I would hold against the argument for the defendants that a partition would leave each Tong liable for the Crown rents of lots other than those allotted to it on a partition.

14. Returning to the legislation affecting the N.T. - in 1961 the District Court assumed jurisdiction over land matters in the N.T., within its ordinary limits of jurisdiction (vide the N.T. (Amendment) Ordinance, 1961). The sections conferring judicial powers on the Land Officer and providing for appeals from his decisions were repealed. Thus jurisdiction became vested solely in the District Court and the Supreme Court. The then section 16, providing that (except on appeal from the Land Officer, or where he had no jurisdiction or the Crown was a party) no proceeding relating to land in the N.T. should be commenced in the Supreme Court or the District Court, was replaced by the present section 12 of Cap.97. Section 17 became the present section 13 which I have already set out in extenso (i.e. the section referring to the recognition and enforcement of Chinese custom and customary right). The defence contends that on the proper construction of this section, or at least in the cir-cumstances of the present case, the Court is obliged to recognise and enforce Chinese custom, in particular alleged customs of inalienability of the Tso's lands and overall dedication thereof for worshipping purposes.

15. I would now refer to the Application of English Law Ordinance 1966 (Cap. 88) which came into force shortly before the issue of the writ in these proceedings. The Ordinance alters the extent of the application of English Law to the Colony, as it prevailed under section 7 of the Supreme Court Ordinance, 1873 (section 5 of Cap.4 of the Revised Edition of 1950) somewhat radically. First, the Ordinance distinguishes between written and unwritten law; secondly, those English statutes (up to 1843) which are to apply to the Colony are specified, and applied "subject to such modifications thereto as the circumstances of Hong Kong may require"; and thirdly, the phrase "except so far as the said law are inapplicable eto." becomes (in relation to the English common law and the rules of equity) "so far as they may be applicable etc. and subject to such modifications etc.". Section 3 and 4, so far as material, read as follows:-

(2) Any such enactment as is mentioned in subsection (1) as being in force in Hong Kong shall, in its application, be subject to such amendment as may have been or may hereafter be made thereto by -

Items 5 and 6 of the Schedule are the Partition Acts of 1539 and 1540; they are applied in their entirety without any specific modification. [I refer to the effect of the Partition Ordinance 1969 at the end of this judgment.] It will be observed that the Acts included in the Schedule are, by virtue of section 4(1) (a), subject to such modifications thereto as the circumstances of Hong Kong may require and by subsection (2), that the application thereof to Hong Kong is to be "subject to such amendment ......... any Ordinance". The first of these expressions is the formula usually employed when an English Act, in its application to a Colony, requires, because of the circumstances prevailing in the Colory to be read with verbal or formal modifications such as, for example, reading for the 'Supreme Court of Judicature' the 'Supreme Court of the Colony'. The second of the expressions refers to amendment of applied Acts by local Ordinances. Neither of these two expressions is appropriate to section 13 of the N.T. Ordinance but, on the other hand, neither is sufficient to deprive it of effect, according to its terms, as it appears to me.

16. To complete the legislative aspect of partition, reference should be made to the Act 3 and 4 Wm. IV Cap.27 which abolished the common law remedy of writ of partition, the common law remedy having been found to be inadequate and incomplete (Agar v. Fairfax L.R. 2 Eq. 440). That Act is not included in the Schedule to the Application of English Law Ordinance (Cap. 88) and consequently does not apply to Hong Kong. As it appears to me, the present proceedings were properly commenced by writ, especially as the case involves serious conflict of evidence on facts; the defence do not suggest otherwise. But, of course, the Supreme Court administers law and equity concurrently (as under the Judicature Act, 1925) and, likewise, in case of conflict equity prevails. In England, compulsory partition was abolished by virtue of the repeal of the Partition Acts by the Law of Property Act, 1925; land held in undivided shares becoming subject to a statutory trust for sale, partition could no longer be effected as there could be no partition where land was converted into money by reason of the equitable doctrine of conversion (Biggs v. Peacock (1882) 22 Ch. D. 284). Although, no doubt, the equitable doctrine of conversion applies in Hong Kong, there is no legislation in force here which imposes a trust for sale on land held in undivided shares.

17. Among the points raised are the following:-

1. The Rule against Perpetuities:

(meaning the rule as it existed in England prior to the Perpetuities and Accumulations Act, 1964)

Does the rule have any bearing on the case, whether in its (the rule's) aspect of restriction on alienation, or its aspect of remoteness of vesting or its aspect of prohibiting the creation of modes of descent unknown to the common law? Does the rule apply in Hong Kong, in particular, in the N.T. in respect of Tso lands, or does aection 13 of the N.T. Ordinance (Cap.97) nevertheless oblige the Court to recognise and enforce the customs of the Tso?

2. The Partition Acts 1539 and 1540:

Do the Acts apply to such an institution as a Tso? Is partition a matter of right, under the Acts? If a matter of discretion, what facts bear upon the question of the proper exercise of the discretion in the present case?

3. Consent of the Land Officer:

Has the Court first to be satisfied that the Land Officer will give consent to a partition?

4.

Are all proper parties before the Court, so that any order made will bind the interests of infants and those yet unborn?

5. Trustee Ordinance (Cap.29) sec.56:

(corresponding to section 57 of the Trustee Act, 1925 of England).

Has this any bearing on the case?

Dealing with them in that order -

1. The Rule against Perpetuities:

Apart from the provisions of the N.T. Ordinance, I have no doubt that the trusts of the Tso would be invalid either as being contrary to the rule against perpetuities or as creating a mode of devolution unknown to the English common law (the rule and the law relating to the creation of unauthorised modes of descant both applying to the Colony by virtue of section 3 of Cap.88.) I would refer to the Privy Council cases of Yeap Chean Neo v. Ong Cheng Neo (1875) 6 P.C. 381 and Cooper v. Stuart (1889) 14 A.C. 286; para. 565 of 29 Haisbury's Laws pp.277-8 (see also Cheshire (9th Edn.) p.235 et seq.); and the local cases of Lau Leung Shi v. Lau Po Tsun (1911) 6 H.K.L.R. 149, and In re Chan Quan Ee (1920) 15 H.K.L.R. 74)

There was considerable argument on the effect of the provisions of sections 13 and 15 of the N.T. Ordinance. Counsel for the plaintiffs contended that section 13 was permissive only, nor obligatory or mandatory, and that section 15, in conferring on the registered managers the powers of sole owners, had the effect of avoiding the application of the rule against perpetuities. The latter contention does not appear to me to meet the objections of remoteness of vesting (in its wider sense); accordingly, as it appears to me, the matter depends on the construction of section 13. Counsel for the defendants argued that section 13 was mandatory and he pointed, with some force, to the fact that the same phraseology, namely "shall have power", was employed in section 13 as was employed in the (repealed) subsection (1) of section 12 (1950 Revised Edn. of the Laws) whereby it was provided that the Land Officer 'shall have power to decide in a summary way all questions and disputes in connexion with .......... land ..........'; likewise in subsection (2) it was provided that 'The Land Officer shall have power to recognise and enforce etc. ....'. The authorities on the question whether provisions such as the provisions of section 13 are per-missive or mandatory are conveniently gathered together in Maxwell on the Interpretation of Statutes (11th Edn. at pp.236 et seq.) (see also Craies on Statute Law (6th Edn. pp.284 et seq.). Particular reliance was placed on the case of Julius v. Bishop of Oxford ((1880) 5 A.C. 214). Looking at the matter free from authority, and purely as a matter of construction, I would feel bound to conclude that the repealed section 12(1) conferred upon the Land Officer a jurisdiction which he was bound to exercise, and that it would then be very difficult to escape the conclusion that the provision relating to Chinese custom and customary right was likewise mandatory, because of its use of the same expression "shall have power" and because of the chaos which could ensue if the application of custom were merely discretionary. In a situation such as Cap. 97 envisages, authorities, I think, are of limited assistance; one must give priority to the language of the enactment itself and the circumstances in which it was enacted. When one comes to consider the circumstances in which the N.T. Ordinance came to be enacted, including the history of the N.T., in my view all doubts disappear. The establishment of the Land Court to ascertain and determine claims to land, with the provision for titles to issue in respect of claims duly established, the form of the block Crown leases expressly recognising the various forms of clan holding, including that of a Tso, and the provisions of (the present) section 15 - expressly recognising such holdings - taken in combination - lead, I think, irresistibly to the conclusion that the Court must recognise and enforce Chinese custom and customary right in the case of a Tso in the N.T. It is then a necessary corollary that one must disregard any aspect of English law, including the rule against perpetuities or any rule regarding unusual modes of devolution, which might affect the customs or trusts of the Tso; and I would so hold.

2. The Partition Acts 1539 and 1540:

I take, first, the provisions of the Acts. As it is said, the "common law always allowed co-parceners to compel a partition, and the statutes of 1539 and 1540 gave the like right to joint tenants and tenants in common. But the common law remedy, by writ of partition, was early found to be inadequate and incomplete, - because the courts of law were incapable of effectuating in fact the partition by directing mutual conveyances; and accordingly equity assumed a general concurrent jurisdiction in all cases of partition; and latterly, the common law remedy by writ of partition was abolished altogether" (vide Snell's Equity (14th Edn. 1905) p.613).

The preamble to the Act of 1539 recounts the mischiefs arising from the inability of joint tenants and tenants in common to compel partition, and is obviously designed to remedy those mischiefs. The wording of section 2 is very clear; it speaks of such co-owners being "coacted and compelled by virtue of this present Act to make partition between them .......... by writ de participatione fasienda .......... in like manner and form as co-parceners ..........". As I mention elsewhere, the writ was abolished in England by the statute 3 & 4 Will. 4, c. 27, s.3. It had long been obsolete; the Chancery Court had successfully substituted a Chancery suit for the older procedure (vide Calmady v. Calmady (2 Ves. jun 570); Agar v. Fairfax (supra) and see Story v. Johnson 2 Y. & C. 586; Jar. Con. Vol. vi p.600; note to Pemberton v. Barnes in Bretts Leading Cases in Modern Equity p. 142; and Foster on Joint Ownership and Partition Ch. 10). The statute of 1539, however, applied only where the co-owners had estates of inheritance. The Act of 1540 recited that the Act of 1539 did "not extend to joint-tenants and tenants in common for term of life or years" and proceeded to provide that they also should be "compellable from henceforth by writ of partition to be pursued out of the King's Court of Chancery .......... to make severance and partition of all such manors, lands .....".

In Mayfair Property Co. v. Johnston (1894) 1 Ch. at pp.513-4, North J. (when dealing with a case of tenants in common) said:-

Other authorities are to the same effect (Brett (supra); Chitty's Statutes note (b) at p.618; and Foster (supra)). If, therefore, the interests in question in the case now before me were, e.g., entailed interests such as may law fully subsist under English law then, I think, there would be no doubt that a partition would be compellable. (I should interpolate that this was writteh prior to the enactment of the Partition Ordinance 1969 which came into force after the conclusion of the hearing; under which the Court 'may refuse to make any order' of partition or sale). What, then, is the position in the case of the Tso? Clearly mischiefs may ensue in the case of a Tso similar in character to those which the statutes of 1539 and 1540 were designed to prevent. As it appears to me, the fundamental question in the case, having regard to the provisions (as I construe them) of section 13 of the N.T. Ordinance, is: would partition be contrary to Chinese custom? 'Chinese custom', in the contention of the defence, includes such customs as in the case of a particular Tso pertain to that Tso - so that it is encumbent on me to ascertain whether partition would offend the particular, prevailing, customs of the Tang Tsap Ng Tso. This, the plaintiffs say, is an unwarrantable extension of the expression "Chinese custom and customary right" as used in section 13 of the N.T. Ordinance. As I understand the defendants to contend, the customs of the Tang Tsap Ng Tso may, at any time and from time to time, be varied by agreement of the members of the Tso, who may also, by like agreement, abandon any prevailing custom or act in a manner contrary to custom. I am prepared to accept, for the purposes of this case, that different Tsos may have different customs and that section 13 extends to recognition and enforce-ment thereof respectively. But the notion that the customs of a Tso may be varied by agreement - at any moment - seems to offend one's sense of the nature or characteristics of customs particularly when, as it appears from the evidence, the 'signatures' of younger members of the Tso to documents affecting its affairs are, in practice, those of their fathers or other elders. One can understand that, in the past, the validity of a transaction carried out in disregard of custom was very unlikely to be impeached; if it were carried out by the registered managers with the consent of the Land Officer in accordance with section 15 and with the approval of the elders, then no question would normally have arisen, in actual practice. The idea of custom being lawfully capable of variation at any time and in such form as the members of the Tso may decide is a different matter; particularly when at any given time many of the members would be mere children. I refer further to this matter at a later point in this judgment.

3. Consent of the Land Officer:

In my view the question whether the Land Officer will give his consent to a partition does not arise in these proceedings at the present stage. If an order for partition is refused the question will not arise. If a partition order is granted, as a matter whether of right or of discretion, it would seem only a remote possibility, in the circumstances, that the Land Officer would refuse consent. However that may be, section 15 of the N.T. Ordinance does not require prior consent, in the sense that consent must be obtained prior to any proceedings in Court relating to the lands of the Tso. In my view the question at this stage is whether the jurisdiction of the Court is affected by section 15. I would hold it not to be so affected; section 12 clearly invests the Court with jurisdiction, without imposing any restriction. The present application is not, in my view, a disposition of or other dealing with the land, within the meaning of section 15, at least not until the stage is reached where any decree for partition which might be made has to be implemented. In this respect counsel for the plaintiffs relied on Patel v. Premabhai (1954) A.C. 35 at p.47 where the Privy Council said that "it is plain that a sharp division is drawn between the decree and the carrying out of the division of the land under it". No doubt, if a decree for partition were to be made it would be wise at some stage of the further consideration of the proceedings for it to be ascertained whether the Land Officer would duly consent, if only to avoid unnecessary expense; but, as I hold, it is not a condition precedent to a decree for partition that the Land Officer's consent should first be obtained, although it might be necessary to draft the decree so as to require the consent of the Land Officer to its implementation. I leave open the question whether a decree of partition made by the Court would supersede the necessity for the approval of the Land Officer, and, if it remains necessary, whether he may properly come to a different conclusion from that of the Court when asked to give his approval. I would refer also to the case of Denning v. Edwards (1961) A.C. 245, on the matter of prior consent.

4. Representation:

On the 31st October 1968 the following order was made in these proceedings:-

No application was made by any person to be joined as a party by the time of the adjourned hearing on the 2nd December, 1968 and accordingly an order was then made in the terms of paragraphs 1, 2 and 3 of the Schedule to the notice. The only point made by counsel for the defendants with regard to representation was that infants ought to be separately represented by counsel, relying on the note of the case of Wright v. Woodham (1851) 17 L.T.O.S. 293 appearing in Vol. 28 of the E. & E. Digest (para. 1933 at page 687), the full report not being available. No doubt it is a sound rule of practice that the same counsel should not represent beneficiaries as well as neutral trustees (see the note to Order 15 r.14 in the Annual Practice, citing Re Burton (1901) W.N. 202; and Re Rechards 50 W.R. 90); a fortiori, if the interests of infant beneficiaries conflict with those of other beneficiaries; it would obviously put counsel in a most difficult position to appear for both such parties. But that is not the present case. As it appeared to me the order was properly to be made under Order 15 rr.12 13 and 14 of our Rules of the Supreme Court (corresponding to the English Rules). In the result, infants and unborn persons who might be in favour of a partition were represented by counsel for the plaintiffs, and infants and unborn persons who might be against a partition were represented by counsel for the 2nd and 4th defendants. The 1st and 3rd defendants did not enter an appearance in the proceedings. Foster on Joint Ownership and Partition, published in 1878, refers to the matter of parties as follows, at p.131:-

"          A person having but a limited or particular interest in an undivided share, might always have maintained a suit for partition, provided only that his interest were an interest in possession (h). It was, however, formerly necessary that all persons interested in remainder should be parties, as otherwise the plaintiff could only obtain a decree commensurate with his own estate, and the decree would not be extended to the estate of remaindermen not parties to the suit."

The latter statement is borne out by Baring v. Nash (1 V. & B. 551) and Gaskell v. Gaskell (6 Sim. 643). Foster (loc. cit.) continues:-

"          It was never any objection to a suit for partition that other persons, not parties to the suit, might come into esse and become entitled (i). The Court had always jurisdiction to make a decree in a suit for partition which would bind in equity the interests of all persons not in existence, and who could not be made parties to the suit, whether they were not in existence because they were not actually living (and could not be made parties), or not in existence because it was uncertain who might become entitled; and that, although it might be certain that some living person would ultimately become entitled. In all these cases the decree of the Court was never allowed to be interfered with by any of the persons afterwards coming into existence, either by being born, or by acquiring the character entitling them to an interest. Therefore, where in a suit for partition every living person is before the court who can properly be made a party, the judgment for partition or sale is good, and binds the interest of everybody else, whether unborn, or already born (in the sense of living) but not sustaining the character of the person taking the property. In all such cases the judgment of the Court binds the equity (k)."

With regard to infants it was formerly the rule that the infant must have a day to show cause against the decree on coming of age. The Trustee Act, 1850 rendered this unnecessary. Thus in Bowra v. Wright (20 L.J. Ch. 216) Knight-Bruce V.-C. directed that instead of giving a day to show cause in the decree, it should be declared that after the partition should have been made, the infant was to be a trustee, within the meaning of the Act, of such parts of the property as should be allotted in severalty to the other parties (see also Beckett v. Sutton (19 Ch. D. 646); and Caswell v. Sheen (69 L.J. 854); In re Montagu (1896) 1 Ch. 549; and Davis v. Ingram (1897) 1 Ch. 477). Snell's Equity (14th Edn., 1905) at pp. 614-5 says:-

"          In partition, difficulties occasionally arose from the infancy or lunacy of the persons interested in the property, or of some of them; and it was accordingly provided by the Trustee Act, 1850 (13 & 14 Vict. c.60), s.30 (as regards judgments or decrees for a partition), and by the Partition Act, 1868 (31 & 32 Vict. c. 40), s.7 (as regards judgments for a sale in lieu of partition), - and it has now been provided, by the Trustee Act, 1893 (t), - that the court may declare, that any of the parties to the action are trustees of the land, or of any part thereof, within the meaning of the Trustee Act, 1893; and thereupon (as to any lunatic or person of unsound mind) the Lord Chancellor may (by virtue of the Lunacy Act, 1890 (u), - and (as to all others) the Chancery Division or any judge thereof may (by virtue of the Trustee Act, 1893, s.31), make such orders as to the estates, rights, and interests of such persons as he or the court might, under the pro-visions of the Act, make concerning the estates, rights, and interests of trustees; and accordingly, if any of the persons beneficially interested are infants, lunatics, or persons of unsound mind, the proper court will carry into effect the decree for partition (or for a sale in lieu of partition), by making an order vesting their shares in (or directing a conveyance of their shares by) such persons as the court shall direct (x)."

Section 31 of the Trustee Act, 1893 was replaced, with amendments, by section 48 of the Trustee Act 1925. The corresponding section in our Trustee Ordinance is section 49. The section extends to the binding of the interests of infants and persons unborn. Further, in Simpson v. Denny (10 Ch. D. 28) Jessel M.R. held that trustees sufficiently represent the cestuis que trustent in a partition action.

In the circumstances of the registered managers being, as I hold below, trustees, and they moreover having been ordered to represent infants and persons unborn, both for and against partition, and having regard to the provisions of the Trustee Ordinance, in particular sections 49, 50 and 51 thereof, and to the Rules of Court, and in the circumstances generally, in my view the proceedings were properly constituted and the Court has, as a matter of law, jurisdiction to make a decree binding infants and unborn persons, including successive generations. Accordingly the provisions of section 2 of the Act of 1540 to the effect that partition shall not prejudice any person who is not a party to the proceedings are, in my view, satisfied.

5. The Trustee Ordinance (Cap. 29) section 56:

In my view the provisions of this section have no bearing on the present case. The first question is whether the Tso is a 'trust', and the registered managers 'trustees' within the meaning of the Trustee Ordinance. The parties to the Crown Lease are the Crown of the one part and "the several persons, to the Crown Lease are the Crown of the one part and "the several persons, clans, families and "tongs" whose names are set out in the Schedule" of the other part; the Lease then proceeds: "and each of whom and whose respective Heirs, Executors, Administrator, Managers and Assigns are where not inapplicable hereinafter included under the designation "the Lessee"". In the Schedule the registered managers are termed "trustees"; immediately preceding their names and designation as "trustees" is the name of the Tso; and the grant is expressed to be "unto each Lessee". I would conclude that the grant has the effect of vesting the lands in the registered managers as trustees for the Tso. Accordingly, subject to the provisions of the N.T. Ordinance, the provisions of the Trustee Ordinance apply to the Tso and the registered managers are trustees within the meaning of the Trustee Ordinance. But their powers as such are to be found in section 15 of the N.T. Ordinance. In my view section 56 of the Trustee Ordinance is designed to empower the Court to confer on trustees powers which they lack but are prepared to exercise if conferred on them. No doubt the section extends to the conferment of a power of partition. In the case of In re Thomas Thomas v. Thompson (1930) 1 Ch. 194 such a power was conferred by Farwell J. - in general terms - but no such serious conflict of fact or interest arose there as arises in the present case. The section does not provide that any power conferred shall be duly exercised; compare the provisions of section 30 of the Law of Property Act, 1925. In short, as I see it, the section aims at the conferment of powers, otherwise lacked, but not being powers in the nature of a trust, or otherwise coupled with a duty to exercise them. Can it be said, having regard to the powers conferred on the registered managers by section 15 of the N.T. Ordinance that they, as trustees, lack any necessary powers? In my view not. For these reasons I would hold that section 56 of the Trustee Ordinance has no bearing on this case.

The 'Trusts' or Customs of the Tso:

I turn to these matters, which are fundamental to the case and which are intermixed.

Mr. Akers-Jones was the expert witness called by the defence. I think he duly qualified as such, having regard to his experience in the N.T. and his studies of the institution of a Tso as it prevails there. I was not referred to any textbook or other authority dealing with the customs or nature of a Tso, and am unaware of any. I think Mr. Akers-Jones evidence must be read throughout in the context in which he gave his answers to counsel; also that it is apparent that in the early stages he was under the impression that the partition proposed was partition between the individual members of the Tso and not, as is the case, partition between the six Tongs of the Tso lands exclusive of the Worshipping group (and possibly part of the Reserve Group). He said that:-

"A tso is formed in order to preserve property intact on the death of the head of the family and this formation of the tso is very closely connected with veneration for one's ancestors and to ensure that the head of the family can be sufficiently revered by the succeeding genc-rations by means of using the income or some of the income from the property. It also ensures that the family stays together as a greup. It is tied up with the principle of exogamy, where the male members of the clan stay together, live together in one village and when any of the sons marry they bring their wife into the village, and when any of the daughters marry they leave the village. All these matters are very closely inter-related and the land holdings are basic to that social structure."

Later, he referred to it as a Confucian tradition, which nowadays however the sons of a deceased father might not follow. I think that it is common knowledge that Tso's rarely, if ever, exist in the built-up areas of Hong Kong.

Referring to the division of the descendants into Tongs or Fongs, he said:-

"Yes. The tso or the clan is divided up into a number of fong. That is to say, that if a man dies and has three sons, then each of those sons will eventually form a fong, a part of the tso, and all succeeding sons of those sons will form part of that fong, and in the case of the Tsap Ng Tso, to the best of my knowledge there are six fong. That is that the original ancestor had six sons. The Tsap Ng Tso itself is part - as indeed one would expect, the original ancestor of that tso was himself a member of a wider Organisation called the Wai San Tong, and in this way the whole village is linked together and all the Tangs who belong to the Ping Shan branch of the Tang clan fit into this clan organisation, and I remember being shown a document which traces the lineage back something like 2,000 years."

Asked whether the Tso properties would be held by the Tso or separately by the individual Tongs or branches he said:

"No, the property itself would be registered in the name of the tso with managers and, usually speaking, there would be one manager representing each branch of the family, each fong, so that if you had six fong you would have six managers."

He then went on to deal with two impcrtant matters. First, in answer to a question for what purposes the income of the Tso was used, he said:-

"The first claim is for veneration fo the common ancestor, that is the religious rites and ceremonies throughout the year, for keeping the temple, if there is one, in a good state of repair, for education, and thereafter any surplus would be divided, if there were a surplus .........."

Questioned on the mode of division of the surplus, he said division would be equally among the families; and continued:-

"Yes. If there are six branches of the tso, then the property would be divided, the rents and the income would be divided into six and each fong would get a sixth share of what remained .........."

The second of the two matters was as to the meaning of "Jing Sheung", in respect of which he said:-

This is in direct contradiction of one of the main contentions for the defence, namely that all the lands of the Tso, being "Jing Sheung", are dedicated or impressed with a trust for worshipping purposes and therefore cannot be the subject of partition, or for that matter be the subject of any other form of dealing save in exceptional circumstances, as, for example, when money is required for repair of the ancestral hall or temple, or for education, and may then be raised by sale or mortgage. The matter was further referred to in cross-examination as follows:-

Mr. Akers-Jones was then questioned by counsel for the defendants, by whom he was called to give evidence, on the matter of disposition of Tso land, and said:-

"The custom is to preserve it intact. Those who are at present managing it have to pass it on intact to succeeding generations and not to do this would indeed mean an abrogation of their custom, traditions."

At a later point he said he would regard partition as a symptom of dissolution of the clan.

Asked what would be the effect of splitting up Tso land in the N.T., he said:-

"Well it would have very profound social consequences. This is indeed why when the British came to the N.T., we did not wish to disturb the local custom and traditions in any way and I think the Governor - Blake I think it was - in his proclamation said something to that effect that it was not our intention to interfere, and therefore the N.T. Ordinance reflects that determination to preserve the local custom in respect of property and not necessarily to apply our own system of land tenure to it. Now these tso properties are basic to the customs of the Ching Dynasty and before the Ching Dynasty, they are basic to the Chinese tradition. Therefore if you destroy or interfere in any way with tso property and that system of tenure, then you must be very sure of what you are doing because it affects the life of the inhabitants of the whole of the New Territories. I think one could say that the poor would become poorer, the rich would become richer, there would be very little incentive to keep the clan and the family together. Reverence for one's ancestors, it would be almost impossible for a great many people to revere their ancestors because they would not have the means to do it and you would be replacing it with nothing. So that before you do this, before you do away with the tso system you must be very careful that you replace it with something which is of equal value to society."

In re-examination he said:-

The plaintiffs, of course, rely on the proposed preservation intact of the worshipping group as an answer to what Mr. Akers-Jones is saying in the foregoing paragraphs.

Questioned concerning the purposes for which, by custom, Tso land may be sold, he said:-

"For the repair of the temple, if necessary for education, but principally for the repair of the temple."

In cross-examination Mr. Akers-Jones said this answer applied to the whole of the Tso land, not merely the Jing Sheung portion. The matter of disposition does not however rest there, for immediately after the foregoing answer, in reply to a question whether the Land Officer would approve a sale for any other purpose, Mr. Akers-Jones said:-

"I think if he was sure that this represented the real wishes of the tso and that he had the consent, the willing consent, of all the managers and that there was not going to be a frightful rumpus immediately this sale had taken place, then I think the Land Officer would exercise his discretion and say 'If this is how you want it, certainly you can carry on.'. He would not stand in the way because again if he did that he would be interfering with local custom."

This seems to suggest a custom or practice of acting in disregard of custom when the Tso members think fit to do so. It is desirable that I reproduce additional remarks made by the witness, as follows:-

In cross-examination, Mr. Akers-Jones qualified this statement as appears from the following question and answer:-

He gave similar evidence in relation to the sale of Tso lands otherwise than for a purpose such as repair of the ancestral hall or for educational needs. Mr. Akers-Jones then agreed that a partition of Tso land might be effected by agreement; the following exchanges then occurred:-

As it appears to me, Mr. Akers-Jones was drawing a distinction between the case of the custom of a Tso evolving into a different custom and the case where the Tso members agree to act in a way which departs from prevailing custom; in the first case no question arises - custom is a matter of evolution; in the second case he is saying in effect; 'who is to challenge what the Tso wishes to do?' and that the Land Officer is not concerned to prevent a departure from custom against the wishes of the members. This leaves open the question what are the rights of infant or absent members or other members unable to speak for themselves; but in the present case, of course, there is no agreement on partition. Mr. Akers-Jones also maintains that the division into groups made a century or so ago was, and remains, no more than a rule of management. No doubt it is a mode of management. But it does, I think exemplify the right of each Tong to enjoy (by equal division among its own members) the income of an undivided one-sixth share of those properties of the Tso comprised in the 6 groups.

Mr. Akers-Jones was obviously opposed to a partition. Faced with the plaintiff's proposal that the lands comprised in the Worshipping group be retained, as such and in the name of the Tso - to ensure the preservation of the Tso and the identification of all the male descendants of the six sons with the Tso - his objections to a partition among the 6 Tongs appeared to rest, substantially, on two points: (a) that partition would be contrary to custom; there being in the present case no agree-ment to override custom in this respect; (b) that partition would cause distintegration of the social structure of the Tang clan in the N.T. These matters appear to me to represent the crux of the whole case. But I think I must first deal with further salient features of the evidence.

With regard to capital monies, such as the proceeds of any sale of Tso lands or the compensation paid by the Crown on resumption of Tso lands, the defence suggests that not only is there a custom against alienation (except for a good purpose) and a custom to retain the Tso properties intact - subject always to the overriding decisions of any family meeting - but also that there is no right in the Tongs to division of any such monies on a per stirpes basis. It is also urged that within living memory only 2 sales and 2 resumptions have occurred. On the documentary evidence there is no doubt whatsoever that in past years numerous sales have taken place. There is however no acceptable evidence as to the manner in which the proceeds of those sales were distributed. In two of the recent transactions, on the other hand, there is no doubt that a portion of the proceeds have been distributed per capita, each individual member of the Tso receiving a small payment, on the first occasion $40 each and the second occasion $70. The plaintiffs say that this is an indication of oppression on the part of the stronger Tongs, whose managers, in the interests of their own Tongs, will not sign the documents necessary to complete transactions except on terms of distribution of part of the proceeds among the Tso members individually; further, the plaintiffs say, the demands of the stronger Tongs are increasing. Thus on the second occasion the amount per capita was increased from 40 to 70 dollars. With regard to payment of compensation by the Crown on a resumption, Mr. Akers-Jones said:-

Cross-examined as to the social structure in the N.T. Mr. Akers-Jones gave evidence as followings:-

Further in relation to the social structure in the N.T. Mr. Akers-Jones pointed out that there could be an inter-relationship between several distinct Tso's, as the following answers indicate:-

On the same matter, he said in re-examination:-

Mr. Akers-Jones also confirmed the evidence given for the plain-tiffs that large portions of the lands of the Tang Tsap Ng Tso are lying waste or undeveloped. This would be of importance if it were to be held that partition is a matter of discretion in the court. As I have already indicated I accept the evidence of waste and lack of development and have no doubt that partition would go a long way to remedy this state of affairs from the point of view that each Tong would have more incentive to turn the lands to good account.

In re-examination, Mr. Akers-Jones was asked whether putting an end to a Tso would be taken as a respectful or a disrespectful act as regards the common ancester, and replied:-

Two further points made by Mr. Akers-Jones were, first that Fung Shui might render it very difficult to partition, and secondly that in the event of the income from the Worshipping group becoming insufficient for worshipping purposes it would become necessary to resort to other pro-perties of the Tso, i.e. non-Jing Sheung lands. I do not regard either of these matters as critical. No doubt Fung Shui is of importance but it would, surely, be possible to partition in such a way as to avoid any difficulty in this respect. As to the income of the Worshipping group becoming insufficient I regard this as barely a remote possibi-lity, the necessities for worshipping being merely the provision of a paper chair and joss sticks, and the purchase of a small quantity of pork, and possibly other minor items such as candles, rice and fruit.

Finally, in further cross-examination, Mr. Akers-Jones said:-

Here Mr. Akers-Jones was, I take it, referring to Tso's generally, not to the Tang Tsap Ng Tso as to which the evidence clearly is that the division into the 6 Tong groups and the Worshipping group has existed for over a century.

I turn to the evidence of the fourth defendant, Mr. Tang Lap Shang, the main witness for the defence. Mr. Tang Lap Sjang is an elderly gentleman of some stature, and obviously the witness most well-versed in the affairs of the Tang Tsap Ng Tso. As a member of one of the stronger Tongs he has a motive for opposing a partition but I would hesitate to reject his evidence on any point of difference between himself and the plaintiffs for this reason alone. He has been one of the managers of the Tso for over 20 years and his father Yee Hing, was a manager before him. Earlier his grandfather Heung Chuen, was manager; the grandfather is the person by whom the Book Ex.P 49 was opened in the year 1836.

The witness was referred to the Book Ex.P 28, which I accept as genuine document, and made the point that all groups of the Tso lands are therein described as 'Jing Sheung', and, as he would have it, properly so described and meaning that all the properties of the Tso are impressed with a trust for worshipping purposes. On this matter I prefer the evidence of Mr. Akers-Jones that it is the wor-shipping group only that is 'Jing Sheung', supported as his evidence is by the fact of this group having existed, specifically for wor-shipping purposes, as appears, from Ex. P 49, for a century or so, and that the custom has been for the 6 Tongs themselves to enjoy the income of the 6 Tong groups per stirpes as the witness expressly agreed and as the accounts exhibited clearly show.

The witness, the 4th defendant, was asked about the affairs of a senior Tso, the Yeuk Hui Tso (alias and commonly known as the Wai San Tong) the common ancestor in that Tso being Yeuk Hui; Tang Tsap Ng having been adopted as the son of Yeuk Hui's son Mun Yuet. I do not think [ can derive any assistance by comparing the customs of the two Tso's; the witness did not say that the customs of the two Tso's were the same but 'more or less the same'. He admitted that the Wai San Tong also had a separate group of worshipping properties. The main purpose of the comparison, possibly, was to show that when the income of the Wai San Tong was insufficient for worshipping purposes resort is had to the resources of the Tang Tsap Ng Tso; as each of the three families of the Wai San Tong manage its affairs in turn, and as one such family was the Tang Tsap Ng Tso, that could mean that properties of the Tang Tsap Ng Tso would become liable for a deficiency in the Wai San Tong worshipping resources, i.e. in any year when the Tang Tsap Ng Tso was managing the affairs of the Wai San Tong. The witness appeared to imply at one point that in such a case resort would first be made to the Reserve group of the Tang Tsap Ng Tso, and secondarily to the 6 Tong groups of that Tso. As I understand his evidence, donation to the Tat Tak School - a school belonging to the clan; at the same time the Tso had to expend $5,000 of the proceeds in purchasing land from the vendor named in Ex. P 7C who otherwise would not have agreed to the sale evidenced by Ex. P 7B. As I understand the evidence some $5,000 was not accounted for by a member of the 4th defendant's Tong, and he, the witness, paid it out of his own pocket as an at of grace.

The witness said that partition of the Tso properties would have a tremendous effect; implying the effect to which Mr. Akers-Jones testified. He implied also, as I have indicated, an overall trust or dedication for worshipping purposes, education purposes, the payment of Pak Kam, and the repair of roads and bridges. He agreed that the balance of the income is distributed equally among the Tongs, i.e. - per stirpes, and likewise in the case of income derived from the Wai San Tong properties. But in cross-examination he was driven, I think quite clearly, to agree that both in the case of the Wai San Tong and the Tang Tsap Ng Tso it is specific properties only that are to be devoted to worshipping purposes, - i.e., in the case of the Tang Tsap Ng Tso, the worshipping group. This is plainly against the contention that all the lands of the Tso are 'Jing Sheung' meaning ancestral lands devoted to or impressed with a trust for worshipping purposes.

On the point of alienation of lands of the Tang Tsap Ng Tso, although there was much confusion in his evidence I think the witness (the 4th defendant) finally agreed that there was a distinction to be drawn between the sale of lands in the Worshipping group and the sale of other lands of the Tso; lands in the Worshipping group would never be sold or otherwise voluntarily alienated, whereas other Tso lands might be sold but only if it served a good purpose as he had previously defined it; and any sale, in all cases, being subject to the agreement thereto of the members of the Tso assembled in a family meeting. As I gather, any such meeting would not have the precision of, say, a company shareholders' meeting. Clearly there would be members of the Tso so young as to be unable to speak for themselves, very likely absent members also; and it appears that the views of the family elders would be, if not paramount then at least of considerable weight. As I gather, also, such dealings as letting or leasing Tso lands are sub-ject to agreement in a family meeting. So that although the managers are invested with absolute powers under section 15 of the N.T. Ordinance, and so far as intending purchasers are concerned that is all that matters provided the Land Officer consents, their decision to exercise those powers in any matter is in fact controlled by the clan assembled in family meeting. This is supported by the fact that on the occasion of any intended dealing it is the practice of the Land Office to give public notice thereof inviting objections from members of the Tso. As I gather further, the distribution of part of the proceeds of sale or other alienation of lands on a per capita basis is a recent innovation, In this regard I feel impelled to the conclusion that distribution on a per capita basis is not a product of the evolution of custom, but rather the product of a bargaining or negotiating process carried out in the course of the deliberations of the family meeting whether to agree to a sale or other alienation. I feel impelled also to the conclusion that whilst lands of the Worshipping group would never be voluntarily alienated, there is not the same inhibition against sale of other lands of the Tso and that, if necessary, the family meeting would 'adopt' some good purpose if it was desired to sell; in other words, whilst paying lip-service to custom, custom would not be allowed to stand in the way of an advantageous sale, whether advantageous to the Tso as a whole or advantageous to individual members by reason of intended distri-bution of moneys per capita. I have no doubt also that it is considered advantageous to retain the character of the lands as Tso lands from the point of view that no death duties are, in practice, levied on the death of any member of the Tso in respect of his interest, or the passing of his interest, in such lands.

As I view the whole case, although the retention of the Worshipping group of lands as such would not only retain the link with the common ancestor and thus retain the link of each Tong with the other Tongs, partition of other Tso lands between the Tongs, as is proposed, could very well and probably would lead to the disintegration of the Tso by means of the evolution of different customs in the case of each Tong or indeed the abrogation of custom altogehter by one or more of the Tongs. Each Tong would be enabled to deal with the lands allotted to it, exclusively, as its own evolving custom might dictate, or as its own members might agree; this is the point made by counsel for the defence: there is only one Tso and one 'trust', not six trusts i.e. one for each Tong. By ordering such a partition as it seems to me, the Court would be paving the way to the destruction of the Tso as an institution. Partition in a case of this nature would, obviously endure indefinitely so as to bind future generations. I agree also with the views expressed by the 4th defendant and by Mr. Akers-Jones that partition would be destructive of the social structure of the clan. I accept entirely what Mr. Akers-Jones said in evidence in this respect and cannot indeed improve on his mode of expressing the profound consequences of a partition to the clan. The Tso and the social structure are so inter-related that to interfere with one is to interfere with the other. The matters mentioned in this paragraph are fundamental to the case and for these reasons, applying section 13 of the N.T. Ordinance as I think I am bound to do, I would dismiss the action.

In the interim period between the conclusion of the hearing and the delivery of this judgment the Partition Ordinance 1969 has come into force. It provides that "where any property in land is held by two or more persons, whether as joint tenants or as tenants in common", the Court may (a) order a partition, (b) order a sale, or (c) refuse to make any order. By section 10 of the Ordinance, items 5 and 6 of the Schedule to the Application of English Law Ordinance (Cap.88) are deleted; thus the Partition Acts 1539 and 1540 are repealed in their application to Hong Kong. But the Ordinance (the Partition Ordinance 1969) makes no provision for pending proceedings, and makes no particular reference to Tso properties or to land in the New Territories; nor indeed does it refer expressly to land held for life or years, although possibly such interests fall within the scope of the Ordinance by reason of the expression 'any property in land'. I have considered whether I should invite further argument from counsel having regard to the coming into operation of this Ordinance since the hearing. It could be argued, possibly, that section 23 of the Interpretation Ordinance (preserving vested rights and pending proceedings) has the effect that the present proceedings are to be determined as if the Partition Ordinance 1969 had not been passed; that under the Acts of 1539 and 1540 there was an absolute right to a partition; and that I am wrong in holding that in relation to the partition of Tso lands effect must be given to section 13 of the N.T. Ordinance, or that I am wrong in the effect I give to that section. On the other hand, it could be argued, possibly, that either the Partition Ordinance 1969 does not contemplate Tso lands (in which case there is no jurisdiction to order a partition) or if it does, then there is express discretion thereunder to refuse an order and that in the ciroumstances of the case the Court should refuse an order. In my view, section 13 of the N.T. Ordinance must have overriding effect, as being a provision of special application to land in the N.T. in contrast to the Partition Ordinance 1969 which is an Ordinance of general application. As it appears to me therefore, whichever way the argument would go one would virtually come back to the same question, nanely, whether section 13 of the N.T. Ordinance applies and what is its effect in the circumstances of the case. In the view which I take of the case there is no necessity for me to pursue or determine the effect of the Partition Ordinance of 1969.

Costs: Reserved.

Representation:

B. Bernacchi Q.C. and Michael Asome (instructed by Philip K.H. Wong) for plaintiff.

B. Liu (instructed by Alexander Tsang & Co.) for defendants.

18th of April 1970. Judgment handed down.

(h) wills v. Slade, 6 Ves. 498; Baring v. Nash, 1 V. & B. 551; Hobson v. Shewood, 4 Beav. 184; Gaskell v. Gaskell, 6 Sim. 643; Heaton v. Deardon, 16 Beav. 147.

(i) Wills v. Slade, 6 Ves. 498; Gaskell v. Gaskell, 6 Sim. 643. See also Martyn v. Perryman, Rep. Ch. 125; Lord Brook v. Lord Hertford, 2 P. Wms. 518.

(k) Basnett v. Moxen, L.R. 20 Eq. 182; Groves v. Carbert, 29 L.T.N.S. 129.

(t) 56 &57 Vict. c. 53, s.31

(u) 53 Vict c.5, s.135.

(x) Davis v. Ingram (1897) 1 Ch. 477.