Chu Tak Hing v. Chu Chan Cheung Kiu and Others

HCA000162/1963

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 162 OF 1963

-----------------

-----------------

Coram: Scholes, J. in Court.

Date of Judgment: 25 May 1968

-----------------

JUDGMENT

-----------------

1. This case concerns land in the New Territories, and shortly the facts are that one Chu Tak Hing, who was a clerk in the District Office Tai Po, retiring in 1940 or 1941, and who lived at No.1 Yan Hing Street, Tai Po Market, Tai Po, before the last war from time to time purchased properties in the New Territories in three names namely Chu Tak Yam Tong, Chu Nam Yuen, and Chu Wai Chi (or Chee), the legal estate being conveyed, according to the deeds, to one of the names in question with somebody as trustee or manager, the Chinese term for the trustee or manager being Sze Lei. Further properties were purchased after the war, but it appears that all the properties purchased after the war were purchased in the name of Chu Tak Yam Tong, under which name most of the properties are now held. There is some dispute as to where the money came from for the purchase of the properties after the war, the first defendant stating that she and Tsui Sau Ha, Chu Tak Hing's first concubine, who died in October, 1961, worked hard with the help of children, and with money thereby obtained contributed to the purchase of properties purchased after the war, but I very much doubt in the circumstances if they were able to save and contribute much if anything to the purchases, and I think that the purchases must have been made from rents and profits from properties already in the three names. Exhibit C4 shows that only 2 lots were held in the name of Chu Tak Yam Tong on the 18th October, 1946, the majority of the lots at that time being held in the name of Chu Nam Yuen. The Exhibit H file contains photostat copies of the title deeds of properties in the name of Chu Tak Yam Tong; the Exhibit G file contains photostat copies of the title deeds of properties held in the names of Chu Nam Yuen and Chu Wai Chi, and the dates on those title deeds only go up to October, 1940.

2. It appears that one Lo Yung was the trustee, manager, or Sze Lei of the properties from about 1923 to about 1927 or 1928 and that Chu Shuet Hon was the next one from about 1927 or 1928 to about 1941 when he ceased to take an active part, although he still remained trustee or manager or Sze Lei of the properties until the 14.10.1946, (see Exhibit C4), when the trusteeship was conveyed to the first and second defendants, who have since then been the trustees, managers, or Sze Lei of the properties held under the three names. The numbers of lots purchased, giving the distriot in which they were, may be seen in Exhibits H & G & Exhibit C4. Chu Tak Hing with the assistance of the managers and rent collectors, and being the head of the family, controlled the management and business of the properties, although as he grew older the first defendant took more and more of an active part, and he recorded particular of the properties in the property books Exhibits NA and NB. The first defendant is the widow of Chu Tak Hing's eldest son Chu Yam Wa, who died on the 20th June, 1945, the first defendant marrying him in 1936, Chu Yam Wa being Chu Tak Hing's son by Wong Lai Tsing (12th defendant) his Tin Fang wife. The 2nd Defendant is Chu Tak Hing 's 2nd eldest son, now the eldest surviving son, and he was born on the 3rd June, 1931, his mother being Tsui Sau Ha, Chu Tak Hing's first concubine. Exhibit D shows the family tree. There is evidence that Chu Tak Hing had originally married one Yip Kwei Ying by whom he had a son called Chu Wing So, both of whom died long ago, for instance see Exhibit F2A, but this is not admitted by the defendants; however I see no reason why it should not be true, and I do not know why there should be evidence of it if it never occurred, and I think that on the whole it may well be true, but at relevant times and for the purposes of this case Chu Yam Wa may be regarded as having been Chu Tak Hing's eldest son and the 2nd defendant his 2nd eldest son, who is now his eldest survivng son.

3. The properties in the action are specified in the statement of claim and are in fact the properties at present respectively held under each of the three names in question, namely Chu Tak Yam Tong, Chu Nam Yuen and Chu Wai Chi (or Chee). As to the first name, Chu is the family surname, Tak is Chu Tak Hing's name, Yam is the name of Chu Tak Hing's sons, and Tong means a "hall"; in respect of the second name Chu is the family surname, Nam means "south", and Yuen means an "orchard" or a "garden"; whilst in regard to the third name Chu is the family surname, Wai means "comfort" or "console" and Chi (or Chee) means "descendants".

4. It is common ground that the properties in question were conveyed to trustees, and that the legal title to all the properties in the action is held by trustees or managers on trust for one of the three names or entities. The issue, and the question to be decided by the court, is who are the beneficiaries or beneficiary of the trusts, who did the managers or trustees hold the property in trust for, in other words who did the three names represent. The same issue may be put in a more detailed manner, namely that the dispute is as to whether the managers, trustees, or Sze Lei held the properties in trust for Chu Tak Hing himself, or whether the three names are entities representing a family Tong, the members or beneficiaries of which are all the living male descendants of Chu Tak Hing. The same issue may further be stated in another way, namely whether the property belonged to Chu Tak Hing beneficially and goes to his executors to be dealt with according to his will (Exhibit E1), or whether it was given by Chu Tak Hing in his life time and placed in trust for his male issue.

5. It is the case for the plaintiffs that the three names in question were merely aliases of Chu Tak Hing, and that, if they were Tongs, they were his personal or private Tong names, and that the trustees held the property in trust for Chu Tak Hing. Private Tong names are mentioned in the two cases of Reuter, Brockelmann & Co. v. Tung Lok Tong, otherwise Leung Lai Nam & Others⁽¹⁾ and Li Chok Hung v. Li Pui Chi⁽²⁾, but those cases have nothing to do with land in the New Territories, nor with Chinese customary law concerning the holding of land in the New Territories, and apart from being authorities for the proposition that a person may have a private or personal Tong name, I do not find those cases helpful in the present case. The plaintiffs also say, inter alia, that it is unlikely that Chu Tak Hing would have divested himself of all his landed properties, and that his conduct was not consistent with an intention to so divest himself.

6. The defendants on the other hand say that each of the three names was a family Tong in accordance with Chinese customary law in the New Territories, the managers, trustees, or Sze Lei of which Tongs were registered under and in accordance with the present section 15 of the New Territories Ordinance (Cap.97), (the number of that particular section having changed from time to time), and that by Chinese customary law in the New Territories the beneficiaries of these family Tongs are the living male issue from time to time of Chu Tak Hing, and that in accordance with that custom lists of the beneficiaries of these family Tongs, namely B Exhibits, were filed at the District Office, Tai Po, and that these lists, with the exception of B5 which was reported and signed by the 1st defendant, were written out by, signed by, and reported to the District Office by Chu Tak Hing himself. The first defendant added the name of her deceased son Chu Cheong Mong and signed the amendment in the lists B6 to B8 inclusive, because she then thought that he should be a beneficiary. The plaintiffs allege, as Chu Tak Hing alleged in his correspondence with the District Office at a later date, that Chu Tak Hing meant to indicate, by means of these lists, the names of the persons who were to inherit his properties.

7. It is also the defendants' case that Chu Tak Hing started to have a change of heart or mind in 1960, which crystallized in 1961, and that having purchased properties in family Tong names in trust for his male issue in accordance with Chinese customary law in the New Territories, he desired to get these properties back again under his own legal control, alleging that the Tong names were his aliases, so that he could dispose of them as he wished, and there is no doubt that Chu Tak Hing desired to regain the legal title to the properties and alleged that the names were his aliases which is shown by Exhibits in the Exhibit A file of documents, the file on the matter in the Tai Po District Office. It is also clear that Chu Tak Hing altered the property books Exhibits NA and NB to make it appear that the names were his aliases; the first defendant says that she last saw the property books Exhibits NA and NB, which she used to refer to, early in 1961, and did not see them again till about 3 days after Chu Tak Hing's death, namely till about the 7th July, 1964, when the second defendant gave them to her, and that the alterations, which had not been there before, then appeared, and I think that on the evidence that that is probably what occurred, and I accept that evidence of the first defendant.

8. The defendants allege that this change of mind or of heart of Chu Tak Hing was caused as a result of his marriage to his second concubine Chu Yau San Tai (the third plaintiff and fourth plaintiffs' witness), which marriage took place in 1949, and by whom he was enamoured, and by whom he had five children including three sons, and for whom he wished to make special provision. It is quite clear form the U Exhibits, namely U1-U9, U25-U29, and U20-U24, and the evidence of the first defendant, that property specifically in the names of some of Chu Tak Hing's male descendants (and not property in this action) was sold for the purpose of building a house or a building on property in one of the three relevant names, and that the District Office gave his consent to the sales for that purpose, but that the proceeds of sale were never used for the construction of the house or building, and that instead Chu Tak Hing used the money to purchase property for Chu Yau San Tai. It was this occurrence that started a quarrel between Chu Tak Hing and the first defendant, which quarrel was never resolved, and from then onwards Chu Tak Hing took steps to prevent the first defendant from having access to documents concerning the properties in question including the two property books Exhibits NA and NB.

9. It is also clear from documents in the A file of Exhibits that Chu Tak Hing took steps in 1961 to gain legal control of the relevant properties, and from the first document on that file Exhibit AlB, the translation of which is Exhibit Al, that he first wrote to the District Officer, Tai Po, for that purpose on the 14th September, 1961, and in that letter he states that the three relevant names were his aliases and asked for the cancellation of the managership of the first and second defendants of the properties under the three relevant names and for his own name to be substituted as manager of the properties; however the District Officer refused to do as requested and in a letter of the 2nd October, 1961, (Exhibit AlO), giving his reasons there for the District Officer replied to Chu Tak Hing's letter stating:-

"          I regret that I am unable to agree to the cancellation of the managership of CHU Yam-kwan and CHU Chan Cheung Kiu for the Chu Nam-yuen, the Chu Wai-chi and the Chu Tak Yum Tong. In respect of each of these bodies a list of members is held by this Office and unless the agreement of all the members to the change in managership is submitted to me, I am unable to agree to the appointment of a new manager."

10. Exhibit A is a file of the District Office, Tai Po, and the "subject" of the file is stated on the front of the file to be "Registration of Property of CHU Tak Yam Tong, CHU Nam Yuen & CHU Wai Chee. Dealing of ......" It appears from Mr. Li's evidence that any pre-war papers or files there may have been on the subject before the war were lost during the war. Mr. Li, the first witness for the plaintiffs, is the Executive Officer of the Land Registry of the District Office, Tai Po.

11. Chu Tak Hing continued to write to the District Officer, Tai Po, either himself or through his solicitors endeavouring to persuade the District Officer to comply with his request, and he also made and filed a statutory declaration on the 8th November, 1961, to the effect that the three relevant names of Chu Nam Yuen, Chu Wai Chi, and Chu Tak Yam Tong were his aliases, the last name being a private Tong formed by himself, and that all the properties registered in those names were solely owned by himself. The District Officer continued to decline to grant Chu Tak Hing's application and on the 6th October, 1962, (Exhibit A25) wrote to his solicitors stating :-

"          Your client has submitted for my examination the title deeds of properties registered in the names of CHU Nam-yuen, CHU Wai-chi and Chu Tak Yam Tong. In a number of these documents I note that your client has acted as witness to the transaction while the managers registered in this Office have signed as parties to the transaction in question. In view of this, I regret that I cannot accept your client's declaration that the names of CHU Nam-yuen, CHU Wai-chi and Chu Tak Yam Tong are his aliases."

Finally, on the 26th October, 1962, (Exhibit A30), the District Officer wrote to Chu Tak Hing saying :-

12. In the meantime Chu Tak Hing had been trying to persuade the first and second defendants to resign their managerships of the properties and he got the second defendant to sign the letter of the 22nd October, 1961, (Exhibit A11), addressed to the District Officer, Tai Po, stating inter alia to the effect that the three relevant names were his father's aliases and that the properties registered under those names belonged to his father, and stating that he resigned as trustee, and requesting that his name be removed as trustee. Chu Tak Hing obtained the second defendant's signature to another letter written in similar vein to the District Officer, Tai Po, dated the 3rd July, 1962 (Exhibit A22). However the first defendant steadfastly refused to relinquish her managership of the properties, and on the 21st February, 1963, Chu Tak Hing had issued the writ of this action claiming that he was the sole beneficial owner of the properties in question, and claiming a number of declarations and orders, but he died on the 3rd July, 1964, before the action was heard. Chu Tak Hing made a will on the 16th March, 1964, appointing four executors of his will, Probate of the will being granted on the 12th August, 1966 (Exhibit E1), and Chu Tak Hing's four executors were joined as plaintiffs in the action and they have continued the prosecution of the action.

13. Returning to an earlier date when Chu Tak Hing first tried to gain control of the properties, on the 19th September, 1961, solicitors on the instructions of both the first and second defendants, wrote to the District Officer, Tai Po, (Exhibit A2), referring to lands in Tai Po held from the Crown in the three relevant names and stating that the first and second defendants were the registered managers representing those three Tongs, and also stating in effect that the defendants opposed the appointment of an additional manager for very strong reasons, and requesting to be notified should anyone wish to deal with any land owned by any of those Tongs. The first defendant alone, again wrote through her solicitors to the District Officer, Tai Po, (Exhibit A23) on the 5th July, 1962, (the 2nd defendant as already stated having by then signed the letter of the 22nd October, 1961, Exhibit A11), stating inter alia that Chu Tak Hing had no interest in the properties registered in the relevant three Tong names, and requesting that any future report of change of membership in respect of the properties in the relevant three Tong names should not be given effect unless signed by the first defendant, and that no dealing be given official recognition in respect of the properties unless authorised by the first defendant.

14. In regard to the two letters signed by the second defendant dated the 22nd October, 1961, (Exhibit A11) and the 3rd July, 1962, (Exhibit A22) respectively, to which reference has already been made, and also to the statement he signed at Chu Tak Hing's solicitors' offices dated the 19th December, 1962, (Exhibit X1), supporting Chu Tak Hing's case and speaking of some events which occurred before the second defendant was born, I have no doubt at all that the second defendant was under the influence of his father Chu Tak Hing when he signed those three documents, and that he signed the first two under duress by his father as related by the second defendant, and that he signed the third under the influence and inducement of his father, and I think that he felt that he had to do what his father wished, and I attach no weight to the contents of any of those three documents. In evidence the second defendant spoke in a most realistic and vivid way when relating how his father made him sign the first two documents and of how his father got him to go to the solicitors' office for the third document, and I have no doubt that he was speaking the truth when he related those matters, and it is to be noted that he started off by opposing his father by the letter of the 19th September, 1961, (Exhibit A2), to which reference has been made, and then for no apparent reason, except that given by himself, changed his attitude and supported his father, and of course he was living in the same house as his father, who was the head of the family, which would make it more difficult for him to oppose his father. However, the second defendant did finally return to his former attitude when his father was a sick man, when he wrote the letter of the 18th March, 1964, to the District Officer, Tai Po, (Exhibit A61) revoking his decision to withdraw from the trusteeship of the Chu Tak Yam Tong, the Chu Nam Yuen and the Chu Wai Chi, followed by a number of letters through his solicitors after his father's death.

15. Whilst dealing with the second defendant's evidence it is appropriate to deal with two other matters. The first is that the second defendant said in evidence that his father had continually told him about his making a statutory declaration in 1941 to the effect that the properties under the three names of Chu Tak Yam Tong, Chu Nam Yuen, and Chu Wai Chi had nothing to do with him (Chu Tak Hing), and that he (Chu Tak Hing) had gone with Chu Yam Wa (Chu Tak Hing's eldest son now deceased) and Chu Shuet Hon (the second witness for the plaintiffs) to the Supreme Court to make the statutory declaration. I am not satisfied that that is correct, and I am not satisfied that Chu Tak Hing ever made such a declaration; furthermore Chu Shuet Hon in evidence denied any knowledge of it, and the first defendant, also, said nothing about it, which no doubt she would have done had it been a fact which Chu Tak Hing often mentioned.

16. The second matter I would now deal with is this. The main and substantial issue in the action, as has already been stated, concerns who is beneficially entitled to the landed properties held in trust from the Crown in the three relevant names; however, there is another issue and it is a very minor issue, which concerns the name of Chu Yi Fong in which name 60 shares of the Tai On Company were held, being share serial Nos.106 to 165 inclusive, which is evidenced by certificate No.20 dated the 14th March, 1923, and which is Exhibit L1, the translation of which is Exhibit L1A. It is the case for the plaintiffs that the name Chu Yi Fong was an alias of Chu Tak Hing and that he was the beneficial owner of the 60 shares. The defendants do not admit this claim. The evidence for the defendants in this respect was that of the second defendant, who said that Chu Yi Fong was not a name of his father, and that the share certificate Exhibit L1 did not belong to the estate of his father, but that in fact the name was his, the second defendant's alias. It is to be noted that the share certificate, Exhibit L1, in the name of Chu Yi Fong, is dated the 14th March, 1923, long before the second defendant was born, the second defendant having been born on the 3rd June, 1931. It is also to be noted that the second defendant did not state in his defence that the name of Chu Yi Fong was his alias. The second defendant agreed that one was not given an alias before one was born, and when it was pointed out to him that Exhibit L1 was dated before he was born the second defendant said that his father told him it was his (second defendant's) alias. The second defendant said he never used the name except for signing on documents in the name of Chu Yi Fong. In cross-examination the second defendant was shown the deed Exhibit H36, dated the 5th May, 1956, which is signed by both the first and second defendants and on which there also appears as a signature the name of Chu Yi Fong, and it is obvious that the name of the second defendant has been signed with a different implement from that of the name Chu Yi Fong; the former appears to have been signed with a fine pen and the latter with a felt pen; it also appears from the deed that Chu Tak Hing was present as the deed states that he was present. Confronted with this document the second defendant said that he remembered that his father had once told him to sign Chu Yi Fong and that that was why he said that it was his alias. He also said that he was not sure if he signed the Chu Yi Fong on Exhibit H36. He said he was not sure if the name was in his father's handwriting as his father's handwriting resembled his own. He further said that it may be his father's handwriting but that it could be his own. On the other hand both the Reverend Chu (first plaintiff and fifth witness for the plaintiffs) and Tsui Chuk Shan (fourth plaintiff and third witness for the plaintiffs) said in evidence that Chu Tak Hing used the alias of Chu Yi Fong for shares. I am not satisfied that Chu Yi Fong was ever an alias of the second defendant, but I consider and find that it was an alias of Chu Tak Hing and that Chu Tak Hing was the sole beneficial owner of the shares held in that name.

17. There is a further matter which it is considered appropriate to mention at this stage, and that is that the plaintiffs claim that Chu Tak Hing had an alias called Chu Heung Chi, and that under that name he was sole beneficial owner of 60 shares in the Un Long Hop Yick Company Limited as evidenced by Interest Pamphlet No.706 dated the 20th March, 1956, (Exhibit L2 with certified translation there of Exhibit L2A). There is also his visiting card (Exhibit W1 with a certified translation there of Exhibit W2) bearing his name of Chu Tak Hing and his alias of Heung Chi. All the defendants who filed defences admitted this claim of the plaintiffs in their defences, except for the first and third defendants who did not admit it in their pleadings; however the first and third defendants through their counsel did admit this claim at the trial, and therefore there is no dispute in respect of this claim, and I therefore consider that it is not necessary to make a declaration in respect of it, but it may be a matter to be considered on the question of costs.

18. Having diverted to other matters, I return again to the main and substantial issue of the case, and in this regard the F1 to F3 Exhibits are not without interest. F1 is a document on its own dated the 18.5.1941, written and signed by Chu Shuet Hon (second witness for the plaintiffs) and written by him at Chu Tak Hing's dictation and witnessed by Chu Tak Hing. Exhibit F1 is the photostat copy of the original which was later put in evidence as Exhibit F1C, whilst there are two slightly different alternative translations Exhibit F1A produced by the defendants and Exhibit F1B produced by the plaintiffs; senior counsel for the defendants said that he did not mind which translation was used, and therefore I think that the safest course to follow is to adopt the F1B translation, it appearing that neither side objects to that translation. The defence says: how can it be said that the three relevant names are aliases of Chu Tak Hing in view of that document. The plaintiffs say that, on the face of F1, Chu Tak Hing gives all the properties in the three relevant names to his only two sons living at the time, and that, if Chu Tak Hing had already given all those properties to the family Tongs, at the time of the making of F1 when he had only 2 male descendants it would have been unnecessary for him to give the properties to his sons; but the plaintiffs say that nobody now claims under that document because the gift was not perfected. Chu Shuet Hon gave evidence to the effect that at the time of the making of the document Chu Tak Hing was ill and the Pacific War was near and so the document was made.

19. It may well be, Chu Tak Hing being a sick man at the time and the Pacific War nearing Hong Kong and no doubt being apprehensive as to the future, that Chu Tak Hing wanted to ensure that the properties in the three relevant names went to his male issue, who at that time consisted only of his two sons Chu Yam Wa and Chu Yam Kwan, and I think that that must have been the intention of Chu Tak Hing in having that document made.

20. I now come to Exhibits F2 and F3. F2 and F3 are photostat copies of different parts of the booklet Exhibit F2D, and the certified translations of Exhibits F2 and F3 are respectively Exhibits F2A and F3A. The defendants say that they have not the evidence to show that F2 and F3 are forgeries, but they do not admit that they are genuine, that is that they were genuinely dated; and the defendants further say: how can the dates in the booklet F2D be genuine, because although F2 is dated the 6th December, 1941, F3 is dated the 26th October, 1946, and yet it was said in evidence that one copy of the booklet was given to Chu Tak Hing's son Chu Yam Wa, and as he died in 1945 how could the booklet containing a genuine entry dated the 26th October, 1946, have been given to him. However the defendants submit that if F2 and F3 are genuine documents that they are just as helpful to the defendants as they are to the plaintiffs.

21. The plaintiffs say that the first defendant admitted that she found a copy of the booklet F2D when her solicitors enquired if she had a copy, and that she must have been in possession of it before 1961, because according to the first defendant Chu Tak Hing then locked his door and did not allow her access to documents, and that the first defendant had said that she did not take any of Chu Tak Hing's documents at the time of his death and that her only documents were the property books handed to her by the eldest son of the second concubine, and that these factors went to show that the copy of Exhibit F2D had been in the first defendant's possession and was genuine, first defendant being the widow of Chu Yam Wa. The plaintiffs further state that they proved Exhibit F2D by calling one of the writers of it, namely Chu Shuet Hon and that he was not cross-examined as to the genuineness of Exhibit F2D which also contained Exhibit F3, and that there was no evidence that Exhibit F2D was not a genuine document. In regard to Exhibit F3 being dated the 26th October, 1946, the plaintiffs submit that, although there is no evidence showing it to be so, Chu Tak Hing could have asked for the return of Exhibit F2D to write F3 in it.

22. I am satisfied on the evidence, and particularly on the evidence of Chu Shuet Hon, that Exhibit F2D, of which Exhibits F2 and F3 are photostat copies of parts of Exhibit F2D, is a genuine document and that Exhibits F2 and F3 are genuinely dated, and I think that Chu Tak Hing must have written in the portion shown in F3 after Chu Yam Wa's death.

23. Chu Shuet Hon said that he wrote out Exhibit F2 on the instructions of Chu Tak Hing because F1 was not very clearly worded, and that after F1 had been made out Chu Tak Hing's health improved considerably, and that that was why F2 was made out. He said that Exhibit F3 was made out so that no one would accuse himself of holding Chu Tak Hing's documents, and that it was his (Chu Shuet Hon's) own idea, and that accordingly Chu Tak Hing wrote out F3 for him to keep.

24. Chu Shuet Hon, who was Chu Tak Hing's nephew and who had been brought up by Chu Tak Hing, his father apparently having been killed by robbers in China, joined the Post Office Department, and as a result of that he resigned as manager and trustee in 1941, although he did not actually execute the formal deed conveying the legal estate (Exhibit C4) until the 18th October, 1946, the war having intervened.

25. Exhibit F2A is a curious document, and it would appear to assist both the opposing sides in the action. For instance the first sentence reads:

"I was authorised by my uncle Chu Tak Hing to be the registered manager of the property standing in the three names of Chu Tak Yam Tong, Chu Nam Yuen and Chu Wai Chee at Taipo Hui, New Territories."

That would clearly indicate that Chu Shuet Hon was the registered manager of the properties in the relevant names, and in my view indicates registration under section 15 of the New Territories Ordinance (Cap.97), for under that section managers are registered. But in the next sentence he says the names belong to Chu Tak Hing, although he does not go as far as saying that the names are Chu Tak Hing's aliases. He then relates what is to happen to the properties "if in future" Chu Tak Hing gives them to his living male children. He then goes on to say in the document that he will submit a report to the District Office, Tai Po, to make a change in the records for new managers to take over. That being read with the first sentence might well indicate that it was contemplated that a change would have to be made in the registration of managers, again indicating the use of what was then the present section 15 of the New Territories Ordinance. The document then states that the new managers are to take care of the younger brothers and protect the properties "owned by them" (the inverted commas are mine) so that they may jointly enjoy an equal share each of the rights and interests. That would clearly appear to be in favour of the defendants, and I do not think that the words "If in future" and following words can apply to that passage because of the intervening portion dealing with the change of managership. I think on the whole that this document is slightly more in favour of the defendants than the plaintiffs, because although it does state that the 3 relevant names belong to Chu Tak Hing, and that in the future he may give the properties to his male sons, yet it certainly indicates that the manager of the properties is registered, and registered at the District Office, Tai Po, and the only way I think that a manager of land can be registered is under what is now section 15 of the Ordinance, and further it indicates that the properties are owned by the younger brothers. However this document is so conflicting that I do not think that one can attach much weight to it.

26. In regard to Exhibit F3A, the first sentence reads :-

"I, Chu Tak Hing, formerly entrusted my nephew Chu Shuet Hon with the work of manager of the properties of my Chu Nam Yuen, Chu Wai Chee and Chu Tak Yam Tong for over ten years and (he) faithfully assisted (me), for which (I am) very grateful."

The word "my" in that sentence may indicate that the three relevant names were Chu Tak Hing's names, or it may be used as indicating the three family Tong names that he had created, however the penultimate sentence clearly indicates that the new managers were registered with the District Office, Tai Po, and registration of managers at the District Office in my view would indicate registration under what is now section 15 of the New Territories Ordinance. The date stated in Exhibit F3A of the 14th October, should be the 18th October, the No.114994 there stated referring to the memorial with that number, of which Exhibit C4 is a photostat copy, the memorial referring to the transfer of the trusteeship from Chu Shuet Hon to the first and second defendants. It may be said at this stage that it was an argument for the defendants, in respect of their suggestion that Exhibit F3 was not genuinely dated, that if it had been genuinely dated the 26th October, 1946, Chu Tak Hing would not have made a mistake in the date of memorial No.114994 which was registered only 8 days before the date on Exhibit F3A, whereas if Exhibit F3 had been written much later the mistake was much more likely. That certainly is a point, but it is also possible for a person to make a mistake in a date of an event shortly after the event has occurred, and as I have already stated on the evidence I am satisfied Exhibit F3 is correctly dated.

27. Section 13 of the New Territories Ordinance (Cap.97) provides:-

"          In any proceedings in the Supreme Court or the District Court in relation to land in the New Territories, the court shall have power to recognize and enforce any Chinese custom or customary right affecting such land."

28. Section 15 of the same Ordinance provides :-

"          Whenever any land is held from the Crown under lease or other grant, agreement or licence in the name of a clan, family or t'ong, such clan, or t'ong shall appoint a manager to represent it. Every such appointment shall be reported at the appropriate New Territories Land Office, and the Land Officer on receiving such proof as he may require of such appointment shall, if he approves thereof, register the name of the said manager who shall, after giving such notices as may be prescribed, have full power to dispose of or in any way deal with the said land as if he were sole owner thereof, subject to the consent of the Land Officer, and shall be personally liable for the payment of all rents and charges and for the observance of all covenants and conditions in respect of the said land. 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 Land Officer may on good cause shown cancel the appointment of any manager and select and register a new manager in his place. If the members of any clan, family or t'ong holding land do not within three months after the acquisition of the land make and prove the appointment of a manager or within three months after any change of manager prove the appointment of a new manager, it shall be lawful for the Crown to re-enter upon the land held by such clan, family or t'ong, which shall thereupon become forfeited. Such re-entry shall be effected by the registration of a memorial thereof in the appropriate New Territories Land Office."

29. It is the case for the defendants that the managers of the properties in the three relevant names were registered under this section, whatever the number of this particular section was at any relevant time, the number of the section having been changed from time to time, and that the three relevant names were and are family Tong names of the Chu family.

30. The plaintiffs on the other hand say that the three names are not family Tong names, but other names of Chu Tak Hing, and that the registration was not under the New Territories Ordinance but under the Land Registration Ordinance, and that if there was a registration under section 15 or its equivalent section in the former Ordinance then it was registration of the managers of Chu Tak Hing's private Tongs.

31. It is to be noted that at the head of all the memorials, Exhibits C1-C13, it is stated to be "A Memorial required to be registered in the District Office, New Territories" (or in the case of Exhibit C13 "in the District Administration, New Territories",) and that it then states "under the provisions of the Land Registration Ordinance and the New Territories Ordinance."

32. I now come to the expert evidence, which I think is very important, and in my view quite independent and reliable expert evidence given on behalf of the defendants was heavily in their favour.

33. Mr. John Li, the Executive Officer in charge of the Land Registry of the District Office, Tai Po, who came to give evidence on subpoena from both the plaintiffs and the defendants, and who produced the A and B file of Exhibits, said in effect that the B Exhibits were lists of names of beneficiaries of the Tong names in this case. It is to be noted that the Exhibit B file states "Member lists" on the outside, and all the documents inside are headed "List of Members", and lists of Chu Tak Hing's male issue are on the lists, and the names of Chu Nam Yuen, Chu Tak Yam Tong and Chu Wai Chi are each given as owners, and the lists of Chu Tak Hing's male issue appear under headings such as "Members of Chu Nam Yuen as follows :-", "Members of the Tong as follows:", "Members of the Tong Tso as follows :"-" and each is signed by Chu Tak Hing and signed as reported by him, except for one, Exhibit B5, which was signed and reported to the District Office, Tai Po, by the first defendant. These are official lists registered at the District Office by Chu Tak Hing, apart from Exhibit B5 which is the one registered by the first defendant. Chu Tak Hing in effect states in these Exhibits that his male issue are the members of the Tongs.

34. Mr. Li gave evidence to the effect that the list of members in Exhibit B were those in respect of section 15 of the New Territories Ordinance formerly section 19, and were used for their record purposes.

35. Lam Tsap Choy, a village elder in the Tai Po area, who was called as a witness for the plaintiffs, said that there were private Tongs, and that if a person buys property in the name of a private Tong the property belongs to him, and that Chu Tak Yam Tong was a private Tong. He said that he had known Chu Tak Hing about 40 years and that Chu Tak Hing had other names namely Chu Tak Yam Tong, Chu Wai Chi and Chu Nam Yuen and that those were the only other names of Chu Tak Hing that he knew of. He said very seldom would a person have more than one public or family Tong never two, and that very few people set up two Tong names, which meant none did so, and that he did not know of any public Tong names. He finally said in cross-examination that it was as a result of what Chu Tak Hing had to him that he discovered that Chu Tak Hing had the other names of Chu Tak Yam Tong, Chu Nam Yuen, and Chu Wai Chi. I was not very impressed by the evidence of this witness.

36. Mr. David Akers-Jones, Deputy District Commissioner of the New Territories during his evidence said :-

37. The court reporter has used the spelling "Cho", but I think that the more usual spelling is "Tso". Also, phraseology during evidence was used a little loosely in one respect, namely in references to the registration of properties under section 15 of the New Territories Ordinance, whereas in fact it is of course the managers of such properties that are registered under section 15 and not the property itself, although no doubt further particulars would be registered because otherwise it would not be shown of what they were managers, but Mr. Akers-Jones says what occurs in the registration.

I think that the normal spelling of the Chinese term is "sze lei."

Referring to the "B" Exhibits Mr. Akers-Jones said :-

Continuing his evidence Mr. Akers-Jones said :-

38. Mr. Cheung Shui-wing, M.B.E., was also subpoenaed to give evidence as an expert witness for the defence. He also gave some evidence on fact. Since 1913 he has lived in the New Territories, was in Government service from 1932 to 1968, and from 1939 until he went on leave prior to retirement he worked in the Land Office Section of the District Office, Tai Po, except for the war years, becoming the clerk-in-charge of the Land Office Section in 1948, which position he held until he retired.

39. Mr. Cheung said that he met Chu Tak Hing in 1939 when the latter was chief clerk of the District Office, Tai Po and they used to see each other nearly every day in the office.

40. During his evidence Mr. Cheung said :-

41. The evidence of Mr. John Li, Mr. Akers-Jones, and Mr. Cheung Shui-wing, which I have cited, in my view is sound, and I accept what they there say as being correct. I may also add that I consider that all their evidence is reliable, but I have not deemed it necessary to set out all their evidence, but only what seems to me to be the essential parts.

42. It is a case for the defence that Chu Tak Hing had parcels of land conveyed into the relevant names, and intended the parcels of land to be held in trust by managers or trustees for the sole benefit of his male issue, and that he thereby had made gifts of the parcels of land to his male issue, and that these gifts were perfected by the delivery thereof into the hands of managers and trustees.

43. The defendants submit that the creation of a trust is divided into two parts :1 The intention to create the trust; and 2 the completion of that intention. They say that they rely on Exhibits F1 - F3, the N Exhibits in their original form - that is before they were altered, and the B Exhibits, to show that intention, and that the completion of that intention is seen in the appointment of Sze Lei or managers as evidenced by documents in the C, G, and H bundles of Exhibits, and that in those documents 'M' or 'T' are shown in the English and Sze Lei in the Chinese version, there being evidence that "M" and "T" meant Sze Lei. The defence, both for the purpose of showing the intention, and for the purpose of showing the completion of that intention, rely also on Chinese law and custom in the New Territories and section 15 of the New Territories Ordinance, section 15 being an attempt to graft a custom into the section.

44. Coming to the N Exhibits, which are photostat copies, with certified translations from the two property books Exhibits NA and NB, Exhibits N1 to N29 are taken from property book NA, whilst Exhibits N30 to the end are taken from property book NB.

45. I think that these Exhibits are in favour of the defendants. The property books were written by Chu Tak Hing, and are in his handwriting. The two property books each have a preface; the certified translation of the NA property book is Exhibits N7 to N12, and that of the second property book NB is Exhibits N33B and N33. The two prefaces are similar except that that the one in property book NB has an extra portion at the end which is Exhibit N33. The prefaces are written in 1942.

46. It is to be noted that the theme of the prefaces is preserving landed property for future generations, which accords with the Chinese custom of conveying land to family Tongs; and it is interesting to note such phrases as these :(N10) "Another word for those young men who keep the properties of their fathers or grandfathers"; "my children and grandchildren ought not to consider, being the manager of landed properties, as a low-graded job"; "Now if any of my sons or grandsons think that managing his family property as being low ......"; (N11) "Those things should be known by those who are given the responsibilities of preserving properties"; (N12) "I am more convinced that in life landed property is indispensable and I do hope my children and grandchildren to be born from generation to generation would be alive to these matters and preserve the family from being destroyed"; N33 "Tak Hing (at that ) time fifty-six years of age ...... felt that in human life land property was indispensable and hoped and wished that son and nephew (to be) born later could hand down from generation to generation and everyone of them to be alive (to this fact) and preserve (the properties) carefully so as to avoid the family being broken and destroyed"; "It is better to preserve the existent property than to aspire to achievement."

47. Continuing with the N Exhibits, Exhibit N14 refers to the properties of Chu Tak Yam Tong, gives the trustees, and gives the beneficiaries who were Chu Tak Hing's male issue, and makes reference to reporting of the beneficiaries to the Tai Po Land Office, but Chu Tak Hing has altered it, no doubt at a later date when he wished to gain control of the properties, adding such words as "The Tong name solely owned by Chu Tak Hing" and "after the death of Chu Tak Hing". Exhibit N19 says properties of Chu Wai Chi, giving the names of the managers, and gives the beneficiaries, who were Chu Tak Hing's male issue, but again Chu Tak Hing has altered it by adding such words as "Chu Tak Hing used his alias to register his personally owned" and "After Chu Tak Hing's death all sons alive can succeed to enjoy". It also refers to reporting to the Land Office, Tai Po. From a study of the documents I am quite satisfied and find that Chu Tak Hing altered the N Exhibits as alleged by the defendants, and I think that he clearly must have done so when he wished to gain control of the properties, and did so for that purpose, and I think that it is quite apparent from the originals of Exhibits N14, N19, N21, N35, N37, N39, and N41 that they were altered in the way the defendants suggest. The N14, N19 and N21 Exhibits, which are in the NA book, each state one of the relevant names as owner of the properties, state the trustees or managers, and state the beneficiaries, who were Chu Tak Hing's male issue, and they are all in Chu Tak Hing's handwriting, but later Chu Tak Hing has added words to make it appear they were his personal properties. The original Exhibits in the NB book of Exhibits, N35, N37, N39, and N41 have all been altered to show "successors" or male issue, and I have no doubt that "beneficiaries" were there, as in the NA book, before these alterations were made. Alterations, which may be termed as legitimate alterations, were made to some of these exhibits in respect of who were the beneficiaries, on account of the change in Chu Tak Hing's living male issue. The references to reporting and to the Tai Po Land Office obviously refer to the B Exhibits. Among these N Exhibits may be seen each of the relevant names. Exhibits N17 and N17A are translations of Exhibit N16, but these exhibits do not refer to property in the action, but to property which belonged to Chu Tak Hing's father Chu Chok Fu, and are Jing Sheung properties. Similarly Exhibit N23 does not refer to property in the action. Exhibit N25 refers to the alias Chu Heung Chi (or Chee). Exhibits N29 and N43 do not refer to land the subject matter of the action.

48. In regard to the P Exhibits, P6 is a summons dated the 27th December, 1950 from the District Office, Tai Po, to tenants of property in the name of Chu Nam Yuen, concerning arrears of rent, and Exhibit P7, written by Chu Tak Hing, appears to be a brief written by him for the purpose of the hearing of that summons on the 3rd January, 1951. P8 is a typed copy of P7. P8 is quite inconsistent with Chu Nam Yuen being an alias of Chu Tak Hing, and is an admission that the properties are family properties. The first two paragraphs state :-

The underling has been done by me to illustrate the inconsistency with aliases, and the theme is clearly that the family owns the land.

49. The plaintiffs say that the simple issue is what did Chu Tak Hing intend to do by putting the properties in the names of trustees for the benefit of the relevant names, and the plaintiffs' case is that Chu Tak Hing transferred properties to trustees for the benefit of himself in the names of his aliases, and that the registration of these transactions cannot in any way affect their nature, nor can registration alter the legal consequences of these transactions. The plaintiffs allege that there was no settlement, and even if there were a settlement it was not perfected, because a settlement by conveyance to trustees also requires purposes of the settlement, and no purposes of the settlement had ever been filed, and that the transaction lacked certainty; however they agree that the real question is whether or not Chu Tak Hing had the intention to settle the property, and who is the beneficiary or beneficiaries of the trusts.

50. It is true that Exhibit G2 has written on it "Deeds registered in my alias Chu Wai Chi" but that writing is not a part of the deed but a note written on it, and may well have been written by Chu Tak Hing when trying to gain control of the properties and written for that purpose. If the writing had been part of the deed it would have been a very different matter. The same applies to Exhibit G44; that deed has a note written on it stating "Deeds registered in my alias Chu Nam Yuen". I do not attach any weight to these writings.

51. The case of Milroy v. Lord⁽³⁾, is the well-known authority for the proposition that in the case of a voluntary settlement the settlor must have done everything necessary to transfer the property, and in that case Turner, L.J. said :-

"          I take the law of this court to be well settled, that, in order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property, and render the settlement binding upon himself. He may, of course, do this by actually transferring the property to the persons for whom he intends to provide, and the provisions will then be effectual; and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes; and if the property be personal, the trust may, as I apprehend, be declared either in writing or by parol. But in order to render the settlement binding, one or other of these modes must, as I understand the law of this court, be resorted to, for there is no equity in this court to protect an imperfect gift. The cases, I think, go further, to this extent, that if the settlement is intended to be effectual by one of the modes to which I have referred, the court will not give effect to it by applying another of those modes. If it is intended to take effect by transfer the court will not hold the intended transfer to operate as a declaration of trust, for then every imperfect instrument would made effectual by being converted into a perfect trust."

The case of Re Rose (deceased) Rose & Others v. Inland Revenue Commissioners⁽⁴⁾ is another case in respect of the same proposition.

52. Apart from expert evidence, the verbal evidence is much conflicting, and relevant parts largely consist of what Chu Tak Hing said and did, when of course Chu Tak Hing himself is not available to tell us what he himself in fact said or did or be cross-examined on such evidence. Counsel for the plaintiffs in his final address said that reliance should be placed more on documents in the case than on the verbal evidence, whilst senior counsel for the defendants in his final address said that the only really relevant verbal evidence, apart from identifying handwriting, was that of Mr. Akers-Jone and Mr. Cheung and he submitted that the all important evidence was the documents. In my view, the most reliable way to determine the substantial issue in this case is primarily and predominantly on the documentary evidence and reliable independent expert evidence, and as I have already stated, I consider that to be the evidence of Mr. Li, Mr. Akers-Jones, and Mr. Cheung.

53. I am satisfied and find, on the evidence of Exhibits F1 - F3, Exhibits N7 - N12 and Exhibits N33B and N33, and having regard to the alterations which I think, in the circumstances, occurred to them, and to which I have referred, the Exhibits N14, N19, N21, N35, N37, N39, and N41, and on the evidence of the B file of Exhibits and Exhibit P7, taking into consideration the expert evidence of Mr. Li, Mr. Akers-Jones, and Mr. Cheung, that Chu Tak Hing intended to create family Tongs in the three relevant names according to Chinese custom in the New Territories, creating a trust for his living male descendants from time to time in accordance with Chinese custom in the New Territories, and on the evidence of the C, G and H Exhibits, that he perfected that intention by having the relevant properties conveyed to the relevant Tong names with a manager and trustee or with managers and trustees, and that he further complied with his intention by having the conveyancies registered at the District Office, Tai Po, and by lodging at the same office the list of members of the Tongs, namely the relevant B Exhibits.

54. I am also satisfied and find on the evidence of Mr. Akers-Jones and Mr. Cheung that the managers of the relevant properties were in fact registered under the provisions of section 15, or the equivalent section at any relevant time, of the New Territories Ordinance.

55. Not only am I not satisfied that the three relevant names were aliases of Chu Tak Hing, but I am satisfied that they were not his aliases; and similarly not only am I not satisfied that the three relevant names were Chu Tak Hing's private Tong names, but I am satisfied that that is not so.

56. It follows that I find that Chu Tak Hing was not the beneficial owner of the properties in the three relevant names, but that his living male descendants from time to time are the beneficiaries.

57. There was some evidence of a custom of an eldest son taking two shares of family Tong or Tso property - apparently a custom connected with the Confucian belief, (see Mr. Akers-Jones' evidence page 19 and Mr. Lam's evidence pages 221-2 of my notes) but the evidence on this matter was very scant and I am not satisfied what the position is, and I make no finding in respect to it.

58. In the circumstances, of all the relief claimed by the plaintiffs the only relief I am prepared to grant, apart from the question of costs which I reserve until I have heard counsel on the matter, is to make a declaration as claimed (apart from the word "Further") in paragraph 2B at the end of the plaintiffs amended statement of claim, which refers to the alias of Chu Yi Fong, and which Declaration I hereby make. The rest of the plaintiffs' claims are dismissed. In regard to the claim in paragraph 2A of the amended statement of claim, although I am not prepared to make that declaration because I do not think that it is necessary to do so for reasons which I have already given, there may be a question of costs to be considered in regard to the claim for that declaration.

25th May, 1968.

(1) 4 H.K.L.R. 37.

(2) 5 H.K.L.R. 121.

(3)1861-73 A.E.R. 783 at 789

(4)1952, 1 A.E.R. 1217