Leung Kuen Fai v. Tang Kwong Yu and Others

HCMP 3305/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3305 OF 1999

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Coram: Deputy High Court Judge Lam in Court

Dates of Hearing: 14 September 2001, 17 January 2002 and 16 May 2002

Date of Handing Down Decision: 18 June 2002

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D E C I S I O N

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1.In this action, the Plaintiff claimed to have dispossessed the registered owner of a piece of land in the New Territories for more than 20 years and sought declaration that the title of the registered owner was extinguished pursuant to Section 17 of the Limitation Ordinance. According to land search record, the registered owner is "Tang Kwong Yu (or U) Tong or Tang Kwong Yu Tso" with several persons appointed as managers for the Tong or Tso. For present purposes, it does not matter whether it is a Tong or Tso. I shall call it "the Tso" in this decision. Whether it is Tong or Tso, there is no dispute that it is a type of Chinese hereditary landholding preserved in the New Territories. The issue I have to decide concerns the application of the doctrine of adverse possession to this kind of hereditary landholding. In a nutshell, the Defendant said that there cannot be any adverse possession so long as there is a beneficiary or member of the Tso or Tong whose claim to the land is not time barred at any moment in time. I shall call this the trust argument. Given the large number of land holdings in the New Territories registered under Tso or Tong or similar institution, the question is obviously of some general importance. An alternative argument of the Defendant was based on an earlier case of Tsang Wing-lung v Tsang Lun [1993] 2 HKLR 23. It was argued that by virtue of Chinese customary law, which is applicable in the New Territories by virtue of Section 13 of the New Territories Ordinance Cap. 97, the concept of limitation of action has no application regarding recovery of land in the New Territories. I shall call this the customary law argument. This point has wider implications because if this argument were correct, it would apply to all the land in the New Territories except those excluded from the operation of that ordinance.

2.I heard this matter by way of trial of preliminary issue. That issue was framed as follows,

"Whether by reason of births of male descendants to the Defendant from time to time as affirmed in the 1st and 2nd Affirmations of Tang Kam Wah filed herein on 14th March 2000 and 25th April 2001 respectively or by virtue of the application of Chinese custom or customary right affecting land, (a) the Defendant's title to the property registered in Tuen Mun New Territories Land Registry as the Remaining Portion of Section A of Lot No. 2279 in Demarcation District No. 130 ["the Property"] and (b) the right on the part of the Defendant and its managers to recover possession of the Property, have been preserved intact notwithstanding any adverse possession thereof the Plaintiff might be able to establish."

In addition to the evidence set out in the affirmations, oral testimony were also adduced before me concerning, inter alia, the dates of birth of some members of the Tso. Counsel for the Plaintiff did not object to such evidence being adduced.

3.There is not much dispute as to the facts. Although the Defendant did not admit the possession of the Property by the Plaintiff, for the purpose of the trial of preliminary issue, I shall assume that the Plaintiff would be able to establish that he and his father has been in continuous possession of the Property to the exclusion of others since 1923. Evidence was adduced by the Defendant as to the birth of certain members of the Tso from 1912 to 1990. Counsel agreed that in Hong Kong up to 1990, those below 21 years old were infants. Based on those evidence, it is clear that if the limitation period starts to run again whenever a right of action accrued to a new member of the Tso and taking into account of the extension of the limitation period to 6 years after each member attained majority, the Defendant has established that at any point in time between 1923 to today, there was at least one member whose right of action has not been barred under the Limitation Ordinance or the Real Property Limitation Act 1833. This is not disputed by Mr Lim, counsel for the Plaintiff. Hence, I do not propose to recite such evidence in this decision. I would only record that between 1923 and 1991, the evidence showed that at least the following new Tso members were born,

*For reasons given below, the limitation period for persons born prior to the commencement of the Limitation Ordinance in 1965 should be governed by the Real Property Limitation Act 1833. Under that Act, the relevant limitation period for recovery of land was 20 years. For disability, there was an extension of limitation period to 10 years after cessation of disability (see Section 16 of the Act). The transitional provision in Section 38(5) of the Limitation Ordinance provides that the provisions under the Act continued to govern cause of action accrued prior to the enactment of the Ordinance unless the Ordinance provided for a longer limitation period. Hence, a period of 31 years from date of birth was the limitation period given to those born prior to 1965. For those born between 1965 and 1 October 1990, the extension on account of disability would expire on 27 years from date of birth (21 years plus 6 years). Since 1 October 1990, with the enactment of the Age of Majority (Related Provisions) Ordinance Cap. 410, the definition for infant in the Interpretation and General Clauses Ordinance Cap. 1 was also amended by ordinance 32 of 1990. As a result, 18 replaced 21 as the age of majority. Hence, for persons born after 1 October 1990, the relevant limitation period should be 24 years.

The relevant legislation as to limitation period

4.Before I deal with the submissions of the parties, I shall set out the relevant legislative framework concerning limitation period. Since the adverse possession in the present case started in 1923, we have to go back in time to trace the applicable law. Before the enactment of the Limitation Ordinance Cap. 347 in June 1965, the applicable law in Hong Kong was the English legislation on the subject. Counsel for both parties seem to be under the misapprehension that the English legislation of 1873 and 1939 were applicable. With respect, that is wrong. Since we are dealing with a time before the Application of English Law Ordinance 1966 Cap. 88 (now repealed) was enacted, English law was brought into Hong Kong at that stage by section 5 of the Supreme Court Ordinance. In 1923, that section read as follows,

"Such of the laws of England as existed when the Colony obtained a local legislature, that is to say, on the 5th day of April, 1843, shall be in force in 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 the laws passed by the said legislature."

5.Hence, the legislation imported into Hong Kong was the one in force in England on 5th April 1843. This did not include any subsequent amendments or repealing statutes (see In re Shang Kiang-yuen [1968] HKLR 192 at 194; Peter Wesley Smith, The Sources of Hong Kong Law, p. 90). On 5th April 1843, the relevant English legislation regarding limitation period on recovery of land was the Real Property Limitation Act 1833. Although there had been subsequent amendments and enactments in England (Real Property Limitation Act 1874 and Limitation Act 1939), they did not affect the position in Hong Kong. This is reflected in the Schedule to the Limitation Ordinance which set out the English enactments ceased to apply in Hong Kong upon the enactment of the Limitation Ordinance in 1965. The 1833 Act was listed in the Schedule whilst the 1874 Act and 1939 Act were not.

6.Between 1843 and 1965, the relevant law applicable in Hong Kong was the Real Property Limitation Act 1833. Since 1965, the relevant statute has been the Limitation Ordinance.

7.The relevant provisions in the 1833 Act are as follows. Section 2 provided that the time limit for bringing an action would be 20 years next after "the time at which the right to ... bring such action shall have first accrued to some person through whom [the plaintiff] claims; or if such right shall not have accrued to any person through whom he claims, then within 20 years next after the time at which the right to ... bring such action shall have first accrued to [the plaintiff]." Section 1 contained a definition of the expression "the person through whom another person claim". It means "any person by, through, or under, or by the act of whom, the person so claiming became entitled to the estate or interest claimed, as heir, issue in tail, tenant by the curtesy of England, tenant in dower, successor, special or general occupant, executor, administrator, legatee, husband, assignee, appointee, devisee, or otherwise, and also any person who was entitled to an estate or interest to which the person so claiming or some person through whom he claims, became entitled as Lord by Escheat".

8.Section 3 defined when a right to bring action would be deemed to have first accrued. In respect of future estate or interest, it stated,

"When the Estate or Interest claimed shall have been an Estate or Interest in Reversion or Remainder, or other future Estate or Interest, and no person shall have obtained the possession or receipt of the profits of such land or the receipt of such rent in respect of such estate or interest, then such right shall be deemed to have first accrued at the time at which such estate or interest became an estate or interest in possession..."

9.Sections 16 and 17 dealt with person under disability, including infant. It provided for an extended limitation period of 10 years after the cessation of the disability subject to an overriding time limit of 40 years after the right of action first accrued. Section 18 stipulated that there would not be further extension by reason of successive disabilities.

10.Section 24 laid down that the same limitation period applied to claims in equity. It said,

"... no person claiming any land or rent in equity shall bring any suit to recover the same but within the period during which by virtue of the provisions herein-before contained he might have made an entry or distress or brought an action to recover the same respectively if he had been entitled at law to such estate, interest, or right in or to the same as he shall claim therein in equity."

11.Section 34 provided for the extinguishment of title upon the expiry of the limitation period.

12.Although the limitation period for recovery of land in England has been reduced subsequently to 12 years by the 1874 Act (and the same period was also provided for in the 1939 Act), this did not affect the position in Hong Kong for reasons already given.

13.When it was enacted in 1965, section 7(2) of the Limitation Ordinance provided a limitation period of 20 years. It was reduced to 12 years by an amendment in 1991. By reason of the transitional provision in Section 38A, for action first accrued before 1 July 1991, the limitation period remained to be 20 years.

14.Hence, on the facts of the present case, up to July 1991 the primary limitation period has always been 20 years. Section 7(2) of the Limitation Ordinance is similar in effect to Section 2 of the 1833 Act. Disregarding the amendments in 1991, it reads,

"No action shall be brought by any other person [viz. person other than the Government] to recover any land after the expiration of 20 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person ..."

Section 2(2) provides that a person shall be deemed to claim through another person, if he became entitled by, through, under, or by the act of that other person to the right claimed. This is similar to the definition in Section 1 of the 1833 Act.

15.There are also provisions in the Limitation Ordinance with regard to future interest (section 9), equitable interests (section 10), extinguishment of title (section 17), extension of limitation period on account of disability (section 22). Basically the underlying concepts are similar to those in the 1833 Act although the wordings for some provisions are slightly different. I shall come back to such differences later.

The nature of a Tso and the interest of its members

16.Regarding the nature of a Tso, a good starting point is the often quoted dicta of Mills-Owens J in Tang Kai-chung v Tang Chik-shang [1970] HKLR 277 at 279-80,

"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."

His Lordship further observed at p. 294 that Tso was a mode of devolution unknown to the English common law. It was preserved by Section 13 of the New Territories Ordinance and the rule against perpetuities was held to be inapplicable (see also Kan Fat-tat v Kan Yin-tat [1987] HKLR 516). At p. 304, Mills-Owens J held that Tso was a trust and the registered managers were trustees within the meaning of the Trustee Ordinance.

17.In the earlier case of Chu Tak-hing v Chu Chan Cheung-kiu [1968] HKLR 542, Scholes J described Tongs as a trust for living male descendants from time to time in accordance with Chinese custom in the New Territories. In that case, the court held that the beneficiaries of the trust were the living male descendants from time to time of the settlor who created the family Tongs.

18.In Tang Kai-chung v Tang Chik-shang [1970] HKLR 277, the court held that partition of Tso land would be destructive of the social structure of the clan. Hence, its member could not seek partition against the wishes of other members. At p. 319-20, Mills-Owen J summarized the evidence as to dealings regarding Tso land,

"There was a distinction to be drawn between the sale of lands in the Worshipping group and the sale of other lands in 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 [e.g. to raise fund for educational purposes such as building a school or to raise funds for repairing tombs, see p.318]; 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 subject 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."

Further down at p. 320, the conclusions of the learned judge were as follows,

"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 distribution of moneys per capita."

19.In Kan Fat-tat v Kan Yin-tat [1987] HKLR 516, Deputy High Court Judge R Tang QC also examined the rights of the member in the dealing of Tso properties. After a thorough review of the authorities and the evidence before the court, the learned judge concluded at p. 537I to J that the custom in the New Territories was that disposition of land required the consent of all members of the Tso and unanimous consent was also required for partition. Further, at p. 539B to F, the learned judge said,

"I am of the opinion, just as a member may not force a sale, nor a partition (regardless of s.15), a member may not compel a distribution, as a matter of Chinese customary law. In my opinion, what one member cannot do, a majority of members cannot do either. ... Dissolution by unanimous consent might have been tolerated on the basis that there was no legal sanction against it and of course there was no one to object. ... I believe the true rule is that there can be no distribution without unanimous consent of all Tso members and a family meeting is where such unanimous consent may be given. ... I am not saying that as a matter of Chinese custom distribution may take place provided there was unanimous consent. Rather my decision is a negative one, namely, that there is no Chinese customary law, proved to my satisfaction, which would entitle any member or any number of members to demand distribution such that a court seized of the matter would enforce the demand. I do not think there was any Chinese custom permitting sale or distribution as such. Though in the absence of opposition there will be no one to stop it ..."

As to the mode of distribution, on the evidence before the court, the learned judge felt unable to find and therefore declined to declare what the correct mode of distribution was according to Chinese custom (see p. 546I). The learned judge further said at p. 547I that the members might by unanimous agreement decide the mode of distribution. Regarding the use of the income derived from Tso property, His Lordship declined to grant any declaration (see p. 547J to 548B).

20.There was an important qualification in the judgment of the learned judge. At p. 539F, he said,

"It is not for me to decide in this action and I do not so decide, what rights, if any, infants or unborn interests may have in any such distribution or indeed in any sale or partition."

At p. 548C, he explained why,

"...in the course of the hearing I asked counsel whether infants' and unborn interests should be represented. Counsel were of the opinion that they need not be. I expressed no opinion on it. In the result it does not matter since I have refused to grant any of the declarations sought."

21.Since the beneficiaries of the trust embodied in a Tso are the living male descendants of the common ancestor from time to time, it must follow that unless there is a cessation of the lineage, new beneficiaries would be born from time to time. Hence, from time to time, there would be beneficiaries who are infants. Moreover, until the cessation of the lineage, there are always possibilities as to new beneficiaries being born in the future. Hence, one would face with the question of unborn interest.

22.In Tang Kai-chung v Tang Chik-shang [1970] HKLR 277, infants and unborn interest were represented by the managers in the two camps pursuant to the Trustee Ordinance and the rules of the court (see p. 304). It was held that in such circumstances, the court has power to make a decree binding infants and unborn persons, including successive generations.

23.In Tang Yau Yi Tong v Tang Mou Shau Tso [1996] 2 HKLR 212, the Court of Appeal held that Tong and Tso are not legal entities. A declaration was made that the members of the Tso were entitled to beneficial interest in the property and the managers were not entitled to sell the property without the consent of the members.

24.From these authorities, I derive the following propositions which are relevant for present purposes,

(a) In respect of land in the New Territories within the scope of Section 13 of the New Territories Ordinance, Tso is recognized as a form of Chinese customary landholding.

(b) In the context of Hong Kong law, it has been established that the concept of trust is applicable to Tso with the managers as trustees and the members as beneficiaries. It is to be noted that this is an application of concepts of English law to a Chinese customary institution. However, by reason of the local circumstances, certain concepts in English trust law were held to be inapplicable, e.g. the rule as to perpetuity.

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

(d) In practice, with unanimous consent of all the members, the Tso property could be sold, partitioned or distributed. The members could also decide on the use of the surplus income generated from Tso property. However, as noted by Deputy Judge R Tang QC, Chinese customary law did not provide for that. Rather, it was allowed to happen because no-one would raise objection given the unanimous consent of the members.

(e) In the absence of a sale or partition or distribution, each member only has a life interest in the Tso property. As observed by Mills-Owens J, the interest of a member arose automatically by birth. Likewise, it extinguished automatically upon death of the member. Since the interest would not form part of the estate of a deceased member, there is no question of succession. The extent of the life interest at any point in time depends on the number of living members in the Tso.

(f) Although the court recognized that there might be unborn interests, I am not aware of and counsel did not cite any case touching upon the nature of such interest. In particular, it has not been decided whether the practice in sub-paragraph (d) above is consistent with the interest of the unborn members in Tso property. One possible explanation is that in accordance with Chinese custom applicable under Section 13 of the New Territories Ordinance, the future descendants simply have no interest whatsoever in the property until they are born and the managers are not obliged to protect their interests as trustees. However, I should not express any conclusion as to that in the absence of any evidence of Chinese custom before me. At the matter stands, I have to leave this question open and I propose to decide the present case without reference to these unborn interest since I do not find it necessary for me to do so for reasons given below.

25.Regarding the interest of a member in a Tso, Mr Chan, counsel for the Defendant, drew an analogy with the interest of a member in an unincorporated association. In this connection, he referred to the decision of Cheung J (as he then was) in Man Sham Chung Wui v Man Mei Kwan, HCA No.9852 of 1998, 10 June 1999. That was a decision in an application for striking out. In the judgment, the learned judge cited a passage from Warburton on Unincorporated Associations: Law and Practice concerning the application of the principle of Foss v Harbottle to unincorporated association. It was held that it was arguable that a member has a right to sue in respect of the wrongful letting of Tso property as it affected the proprietary interest of the member. At the subsequent trial, Deputy Judge A Cheung dealt with the question of locus standi on another ground.

26.Mr Chan also referred to the case of Chap Yick Clansman's Association v Mok Fai [1997] HKLRD 580. Le Pichon J (as she then was) held in that case that in respect of the holding of property for unincorporated association, there were four methods. Apart from the three categories set out by Cross J in Neville Estates v Madden [1962] Ch 832, a fourth mode was added. The first two modes are not relevant in the context of Tso. The third mode is a trust for purposes: the property is not to be at the disposal of the members for the time being but is to be held in trust for or applied for the purposes of the association as a quasi-corporate entity. On the facts, the learned judge held that the terms of the declaration of trust did not sit happily with this scenario because there was no reference to the purposes of the Association. The fourth mode is a trust for the members for the time being. Regarding this fourth mode, Le Pichon J at p. 585J - 586B,

"Such a trust is valid because at any one time all the beneficiaries can be ascertained. As there is nothing in the terms of the declaration of trust to prevent the members of the Association from freely disposing of the whole of the property, there is no infringement of the rule against perpetuities. Although the rule applies to unincorporated associations, it is the rule against inalienability and not that against remoteness of vesting that is relevant ..."

27.Mr Chan submitted in respect of Tso land, the trust is a trust for the members for the time being rather than a trust for purpose. That seems to me to be generally in line with the authorities cited above as to the nature of Tso and the interest of its members. Further, the practice stated in Paragraph 25(d) above would be inconsistent with a trust for a purpose under which the members would not be able to dispose of the property freely. In the present case, there was no express rule governing the use of the Tso property.

28.Two managers and a secretary of the Tang Kwong Yu Tong gave evidence before me. According to such evidence, it was set up to commemorate Tang Man Wai, the famous member of the Tang family in Kam Tin. They have a Genealogy and a name list recording the names of all members and distribution to each of them. However, there is no provision in these documents governing the use of the income or capital of Tso properties. I am satisfied that the trust in respect of Tang Kwong Yu Tong cannot be a trust for a purpose.

29.Regarding the fourth mode of property holding, Warburton, Unincorporated Association, 2nd Edn., at p. 46 said as follows,

"The members' interests are protected by the existence of a trust and they can use their rights as beneficiaries to ensure that the trustees apply the property for the benefit of the members set out in the declaration of trust. Also the members have an equitable interest in the property which they can enforce against any outsider who wrongfully acquires the associations' property. ...

The members are, between themselves, entitled to the whole of the beneficial interest in the property and, thus, there is no guarantee that the property will always be applied for the original purposes of the association. No part of the law of trusts can stop all the members agreeing together to apply the property in some other way. The future application of the property for the purposes of the association thus, ultimately, depends upon moral, and not legal, obligation."

30.It would follow from this analysis that under a trust for members, the future members do not have any proprietary interest in the trust property. In the context of some usual unincorporated associations like clubs or societies, there would be no problem because the existing members always have the power to decide whether new members should be admitted. However, this cannot be said in respect of Tso. The existing members of a Tso do not have the right to exclude future male descendants from the Tso. For reasons stated in Paragraph 24(f) above, I am not in a position to decide whether such unborn members have any interest in the Tso property which the court would protect. Hence, I do not propose to decide whether the analogy drawn by Mr Chan is valid.

31.Counsel for the Plaintiff, Mr Lim, submitted that the rights of the members of the Tso were only rights to distribution of income and as such not an interest in the land. He said that the members did not have any right to possession. He drew analogy with two situations. The first one is the interest of a shareholder in respect of the property of the company. That analogy is clearly wrong because as decided by the Court of Appeal in Tang Yau Yi Tong v Tang Mou Shau Tso [1996] 2 HKLR 212, the Tso, unlike a limited company, is not a legal entity. The second analogy he drew was between the interest of a member of a Tso and the interest of a beneficiary to an intestate estate. Mr Lim relied on the case of Earnshaw v Hartley [2000] Ch 155. It was a decision on Paragraph 9 of Schedule 1 of the Limitation Act 1980 which governed the determination of date of accrual of rights of action to recover land in the possession of one of the person entitled to a beneficial interest in the land. The Court of Appeal held that the interest of a beneficiary in respect of the unadministered estate of an intestate deceased constituted a beneficial interest for limitation purposes including that of Paragraph 9. In so holding, the court rejected the submission of counsel based on Commissioner of Stamp Duties (Queensland) v Livingston [1965] AC 694 that such person only have a right to require the estate to be duly administered and to receive a share of the net estate on completion of the administration instead of a beneficial interest in the proceeds of sale of the property. Hence, that authority showed that, if an analogy can be drawn with a beneficiary to an intestate estate, the interest of a member of a Tso is a beneficial interest in the land for limitation purposes.

32.In any event, on the authorities cited earlier, it is obvious that the existing members of the Tso have beneficial interests in the Tso property. In my judgment, such interests come within the meaning of equitable interests in land in Section 10(1) of the Limitation Ordinance. The definition of "land" in the Limitation Ordinance includes, inter alia, rentcharges and any legal or equitable estate or interest therein. The annual or periodic distribution that a Tso member is entitled to receive falls within the meaning of a rentcharge. According to Section 2, rentcharge means any annuity or periodical sum of money charged upon or payable out of land. Under Section 2(3), a right of action to recover land includes a right to enter into possession of the land or, in the case of rentcharges, to distrain for arrears of rent (which includes the amount payable by way of rentcharges, see definition of "rent"). Further Section 2(4) provides that regarding rentcharges, references to the possession of land shall be construed as references to the receipt of the rent. Hence, it does not matter that in the normal course of event, a Tso member would not enter into possession of the Tso land. His entitlement to receive a periodic distribution is sufficient, for the purpose of the Limitation Ordinance, to classify his interest as an interest in land. His claim for such "rent" is a right of action to recover the land under Section 10(2) of the Ordinance.

33.Moreover, given their position as beneficiaries, I see no reason why the members of the Tso could not claim for possession of the Tso land against stranger. Usually the managers would have taken action and the members do not need to initiate such action. However, if for certain reasons the managers failed to take action, the members should be entitled to commence an action for possession against a trespasser. I reject Mr Lim's submission that the member must sue through the managers of the Tso. Of course, the managers as trustees would have to be joined as parties to the action. But this does not mean that a member could not start an action. He would be doing so for the benefit of all members of the Tso. As between the members of the Tso and the trespasser, the equitable estate of the members in the property must prevail over the wrongful occupation of the property by the trespasser.

34.Regarding the position under the 1833 Act, there were similar provisions. In section 1, the meaning of the word "land" was extended to any share, estate, or interest in them and that of "rent" was extend to all annuities and periodical sums of money charged upon or payable out of any land. The limitation was applied to right to bring an action to recover any land or rent (see Sections 2 and 3). There was no equivalent in the 1833 Act in respect of Section 10 (2) and (3) of the Limitation Ordinance. I shall come back to this point later.

The trust argument

35.In view of the nature of Tso and the interest of its members in Tso property, Mr Chan submitted that by operation of Sections 10 and 22 of the Limitation Ordinance, the title of the Tong in the property could not be extinguished due to the continuous birth of new members giving rise to unbarred beneficial interest in the property.

36.Section 10 provides as follow,

"(1) Subject to the provisions of section 20(1), the provisions of this Ordinance shall apply to equitable interests in land, including interests in the proceeds of the sale of land held upon trust for sale, in like manner as they apply to legal estates, and accordingly a right of action to recover the land shall, for the purposes of this Ordinance but not otherwise, be deemed to accrue to a person entitled in possession to such an equitable interest in the like manner and circumstances and on the same date as it would accrue if his interest were a legal estate in the land.

(2) Where any land is held upon trust, including a trust for sale, and the period prescribed by this Ordinance has expired for the bringing of an action to recover the land by the trustees, the estate of the trustees shall not be extinguished if and so long as the right of action to recover the land of any person entitled to a beneficial interest in the land or in the proceeds of sale either has not accrued or has not been barred by this Ordinance, but if and when every such right of action has been so barred, the estate of the trustee shall be extinguished.

(3) Where land is held upon trust, including a trust for sale, an action to recover the land may be brought by the trustees on behalf of any person entitled to a beneficial interest in possession in the land or in the proceeds of sale whose right of action has not been barred by this Ordinance, notwithstanding that the right of action of the trustees would apart from this provision have been barred by this Ordinance."

37.Section 22 deals with the extension of limitation period in case of disability. Subsection (1) provides for an extended limitation period up to 6 years from the date when the person ceased to be under a disability. Infancy is a disability, see subsection (3). There are a number of provisos to subsection (1). Given the nature of Tso, a member becomes automatically vested with the beneficial interest in the property upon birth. He does not acquire such interest by way of succession. Nor does he acquire such interest by, through, under or by the act of another person. Neither the other members nor the managers need to do anything to vest such interest in him. Nor could they do anything to deprive him of such interest. Hence, the new member does not claim through another person within the meaning of that expression in the Limitation Ordinance (see Section 2(2) of the ordinance). Proviso (a) and (c) are therefore not applicable. Proviso (b) deals with successive disabilities but it is only applicable in cases where there the right of action has accrued to a person who remained disabled up to the time of his death. There is no suggestion that this situation has ever arisen in the present case. Hence, it is again inapplicable. Proviso (d) deals with recovery of penalty or forfeiture. Obviously, it is not relevant for present purposes.

38.I should mention that at the hearing, the witnesses described to me a registration process by which the newly born descendants would be recorded in the Register kept by the secretary of the Tso. The father of the newborn child would inform the secretary as to the birth. There would also be a ceremony at the ancestral hall by way of lighting of lantern, worship of ancestor and God before the name of a newborn member is registered. Upon the death of a member, the secretary would again be informed and his name would be deleted from the Register. Distribution of income is made by the secretary in accordance with the records on the Register. Hence, if a newborn child were not registered, he would not get any share from the distribution. That is only a hypothetical situation because according to the evidence, there has never been dispute regarding registration and the witnesses did not recall any case where a newborn member was not registered.

39.On the basis of such evidence, Mr Lim submitted that the beneficial interest is not vested upon the newborn member until his name was registered. I do not agree. The evidence of the witnesses only referred to the practice of the Tso regarding the administration thereof. There is no rule in the Genealogy to suggest that the membership of this Tso should be different from the other Tso in the New Territories. As a matter of law, the membership of the Tso and the interests of the members in the Tso property should be governed by the customary practice set out in the cases. I am sure that the registration of newborn members serves useful purposes from practical point of view. But such administrative measure cannot change the nature of a Tso. The Defendant Tso is a Tso in the New Territories with all the characteristic and incidence of this kind of institution. An essential character of a Tso is that all the living male descendants of the focal ancestor are members of the Tso and are therefore beneficiaries to the Tso property upon birth.

40.Hence, despite such evidence regarding the registration of newborn members, I hold that a member of a Tso acquires his interest in the Tso property upon birth and he does not claim through any other person for the purposes of the Limitation Ordinance.

41.This is important in the present context because the primary section governing limitation of actions to recover land is Section 7(2) which reads,

"No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person."

42.Mr Lim also suggested that the members of a Tso could not claim for possession by themselves. He submitted that such a claim could only be brought by the managers as trustees. As indicated in paragraph 33 above, I do not agree. With the fusion of law and equity, beneficial owner is also entitled to seek possession against a stranger. In General Finance, Mortgage & Discount Co. v Liberator Permanent Benefit Building Society [1878] 10 Ch D 15 at p. 24, Jessel M R said,

"... considering especially that the jurisdiction in equity and common law is now vested in every Court of justice, ... no action for ejectment or, as it is now called, an action for the recovery of land, can be defeated for the want of the legal estate where the Plaintiff has the title to the possession ..."

That principle was applied by the Irish Court of Appeal in Antrim County Land Building & Investment v Stewart [1904] 2 IR 357. Palles CB said,

"Where the plaintiff claims to be entitled to any right --- such as here, the right of possession of land --- by virtue of an equitable estate, the High Court, whatever may be the Division of it in which the suit may happen to be, must, so long as the suit remains in the Division, give the same relief as ought to have been given by the Court of Chancery in a suit properly instituted for the like purpose before the [Judicature Act]."

"... it would serve no useful purpose were I to discuss the exact form of procedure which, before the Judicature Act, ought to have been adopted by a Court of Equity as ancillary to determining the plaintiff's right of possession. ... Whatever might have been the course adopted, one thing is certain, that through the judgments of two separate courts the plaintiff would have been put into possession, and what then could have effected through two courts can and ought now to be effected by the one court."

See also Re O'Neill [1967] NI 129 and Mills v Lewis [1985] 3 BPR 9421. In an article published in [1955] 71 LQR 204, Professor Wade examined this rule in the context of equitable mortgage, see in particular p. 214-219 with regard to the historical development of enforcement of an equitable owner's right to possession. In fact, Section 10(2) of the Limitation Ordinance clearly envisages that each beneficiary has an independent right of action to recover land. Hence the estate of the trustee shall be extinguished only when "every such right of action has been so barred".

43.Even before the enactment of Section 10(2), similar views have been expressed by the learned editors of Darby & Bosanquet, A Practical Treatise on the Statutes of Limitations, 2nd Edn. (1893) in the context of limitation. At p. 420 of that textbook, it was said,

"It may be said too that, as the 34th section only extinguishes the title of the person whose remedy is barred, leaving the occupant with a title gained by possession and resting on the inability of others to eject him, the extinction of the title of trustee cannot of itself extinguish the title of the equitable owners; that, on the contrary, their title cannot be extinguished by the operation of the 34th section until the prescribed period has elapsed after their right to sue in the name of the trustee has accrued, or would, if such remedy existed, have accrued, having regard to the equitable limitations. If this be right, the trespasser in the case supposed would after the lapse of twelve years have a title subject to be defeated by any existing estate or interest, and there would be actual subsisting equitable estates recognized as such now by all Courts, the persons entitled to such estates or interests being the substantial owners of the land. In these circumstances the Courts would scarcely allow any extreme technical view to defeat the rights of the parties; but in any action for the recovery of land brought by the beneficial and substantial owners in the name of the trustees, or by the equitable owners in their own names, the Courts would not allow the trespasser to make use of the statute to defeat such substantial existing rights. It is believed that the actual point has never been the subject of a legal decision, but the view here advocated would seem to be supported by the judgment of the House of Lords in Scott v Scott [1854] 4 HLC 1065."

Hence, I hold that members of Tso do not need to claim through the managers in seeking to recover the Tso land against strangers.

44.It follows that on the question of limitation, the interests of the members have to be considered independently from the right of the managers. Further, even amongst members of the Tso, limitation periods could be different for different members since one does not claim through another. In Chung Ping Kwan v Lam Island [1997] AC 38 at 47 E, Lord Nicholls said,

"Adverse possession defeats the rights, whatever they may be, of the person against whom the possession is adverse. It does not defeat the rights of others."

45.Whenever a new member is born, a new equitable interest in the Tso property is created. A new limitation period under Sections 7(2) and 22 would start to run. The new limitation period would not expire until 6 years after the member ceases to be an infant.

46.By reason of Section 10(2) of the Limitation Ordinance, the title of the trustees would not extinguish so long as there is at least one beneficial owner whose right to recover the land is not barred. In the present case, Tang Pak Hin, a member of the Defendant Tong, was born on 7 August 1991. He has not even reached majority. His right to recover the land is not yet time barred. By operation of the Section 10(2), the title of the trustees has not been extinguished. In this respect, my conclusion is supported by the views expressed by Deputy High Court Judge Muttrie in Shenzhen Luohu Runan Industrial Limited v Un Kau Kung Tso, HCMP 2320 of 2000, 17 December 2001.

47.On the facts of the present case, at any particular point in time between 1923 and today, there was at least one member whose right to bring an action to recover land has not expired. This is verified by the table in Paragraph 3 above. Hence, I do not need to decide what would be the result if there were a gap during which the limitation period for each and every living member has expired. I would not express any final conclusion on this interesting point. To some extent, it depends on the nature of the interest of the unborn members of the Tso and whether those could be regarded as future interest under Section 9 of the Limitation Ordinance. As I said, in the absence of any evidence of Chinese customary law regarding those interests, I am not in a position to deal with this issue. In passing, I would point out that Yam J considered that the unborn interest could not be barred in To Kan Chi v Pui Man Yau, HCMP 562 of 1992, 26 November 1998, at Paras. 13.2 and 13.3. In Para. 13.2, the learned judge said,

"...members of a tso t'ong would include unborn members. The claim by these unborn members would be on their own rights as being a member of the [tso t'ong property] when born and their claim is not a claim through the members who are now living or lived in the past. Thus there is no reason to deprive them of their rights simply because of the inaction of those who were or are still living."

48.The above analysis on the trust argument is based on the provisions in the Limitation Ordinance. I must also examine the position under the 1833 Act that governed the state of affairs prior to 1965. If the claim of the Tso was barred prior to 1965, the Limitation Ordinance cannot revive it (see Section 38(4)(b) of the Ordinance).

49.The basic structure of the 1833 Act was similar to that of the Limitation Ordinance. For the present purposes, the concepts about land, interest in land, action to recover land and rent, circumstances in which a person is deemed to claim through another are similar in both pieces of legislation. I have mentioned about the disability period under the 1833 Act in Paragraphs 3 and 9 above. The overriding time limit of 40 years in Section 17 of the 1833 Act and provision governing successive disabilities in Section 18 are inapplicable for the reasons given in Paragraph 37 above regarding similar provisos under Section 22 of the Limitation Ordinance.

50.The material difference between the 1833 Act and the Limitation Ordinance appears in the provision regarding the limitation period for equitable interest. Section 24 of the 1833 Act has been set out in Paragraph 10 above. Its effect is the same as Section 10(1) of the Limitation Ordinance. However, the 1833 Act did not contain the equivalent of Section 10(2) and (3) of the Limitation Ordinance. In this regard, similar provisions were only introduced in England in section 7 of the 1939 Act. Does it make any difference in the present case?

51.To answer this question, one has to trace back the development in England since the 1833 Act concerning the right of beneficial owner to bring an action to recover land. I am grateful to Mr Chan who referred me to a textbook published in 1909, John Lightwood, The Time Limit on Actions. At p. 79 to 82, the learned author recited the development of the law in England concerning the operation of the limitation statutes regarding equitable interests. For quite some time, the position was that when the interest of the trustee was barred, the rights of the equitable owners were also barred. The title of the beneficiary was treated as being dependent upon that of the trustee. With the fusion of law and equity a contrary view began to emerge, see paragraph 43 above. The decision of the Court of Appeal in Re Nisbet & Pott's Contract [1906] 1 Ch 386 confirmed the change. At p. 80, the learned author said,

"It follows from that case that equitable interests rank as independent estates in the land, and continue to be enforceable against the legal owner of the land for the time being, whether he has acquired it by assignment or by disseisin, unless, in the former case, he can claim to be a purchaser for value without notice --- a claim which of course cannot be made by a disseisor."

Further at p. 81,

"... in the case of an equitable estate, the extinction of the trustee's title under section 34 [of the 1833 Act] is confined in its effect to that title. The interest of the cestui que trust is an independent interest, and the operation of the statute against this interest is quite separate from its operation against the estate of the trustee. The statute does not run against the cestui que trust's interest until the cestui que trust has a present right to assert it, and, moreover, the cestui que trust is entitled to any additional time allowed by the statute for disability."

52.I also derive assistance from another treatise on the subject published in 1943, shortly after the enactment of the 1939 Act. In Preston & Newsom, Limitation of Actions, 2nd Edn., the learned editors dealt with the position prior to the 1939 Act at p. 128-129,

"Before 1940 such legal estates were barred in twelve years [by virtue of the 1874 Act], but the stranger obtained a legal estate subject to the equities: see Allen v Sayer [1699] 2 Vern.368; Scott v Scott [1854] 4 HLC 1065. But the rule was apparently otherwise with trusts for sale; for there, when the trustee's estate was gone, the trust was held to be gone also: Bolling v Hobday [1882] 31 WR 9. But time could run in favour of the stranger against the beneficiaries successively, for the trust on which he took the legal estate was only a constructive one, and so not within the Real Property Limitation Act, 1833, s. 25."

53.These analyses are consistent with the current academic views regarding the effect of pre-existing equitable interest vis-à-vis squatter. See Megarry & Wade, the Law of Real Property, 6th Edn., Paras. 4-013 and 21-057; Gray, Elements of Land Law, 3rd Edn., p. 280-281.

54.Hence, even without Section 10(2) and (3) of the Limitation Ordinance, by operation of the principle laid down in Re Nisbet & Pott's Contract [1906] 1 Ch 386, the squatter cannot obtain an estate in land free from the equitable interests of the beneficiaries unless the respective limitation periods of each and every beneficiary has expired. The only difference is the extinguishment of the legal title of the trustee, it would be preserved under Section 10(2) but not under the 1833 Act.

55.Regarding the case of Bolling v Hobday [1882] 31 WR 9, it was a decision of Chitty J. The learned judge held that the rights of the beneficiaries in the proceeds of sale of a property extinguished when the title of the trustee to the property was barred under the 1833 Act. According to the report, two reasons were given by the judge for his decision. The first one was that upon the extinguishment of the legal estate, the trusts by which that estate was affected were also extinguished. This might be correct on the facts of the case because there was nothing to suggest that the limitation period regarding the claim of the beneficiaries would expire on a different date from that applicable to the trustee. But it by no means follows that the same can be said when different limitation periods are applicable regarding the claim of the trustee and that of the beneficiary. The second reason was that the beneficiary in that case was only entitled to a share in the sale proceed, the trust being a trust for sale. This has no application to the Tso situation.

56.Coming back to the present case, assuming that the Plaintiff has been in adverse possession since 1923, the legal title of the managers would be barred on a date earlier than 1965. The enactment of Section 10(2) and (3) cannot revive their title. However, by reason of the independent nature of the title of the members, the Plaintiff has not been able to establish that the title of all the beneficiaries has been extinguished. As shown in Paragraph 3 above, the equitable interests of at least three members have not yet been time barred. They are Tang King Loi, Tang Ka Hei, Tang Pak Hin.

The customary law argument

57.The Defendant did not adduce any evidence as to Chinese customary law at the hearing. Mr Chan relied on the decision of Deputy High Court Judge Sharwood in Tsang Wing-lung v Tsang Lun [1993] 2 HKLR 23. At p. 26, the unchallenged expert evidence was as follows,

"Under Chinese law and custom there are no rules of limitation. As general concepts limitation of actions and prescription of rights were unknown to the traditional Chinese legal system and in fact it was not uncommon in traditional China to litigate, or even to re-open litigation, in respect of disputes over property many decades or even centuries after the occurrence of the events on which the outcome of such disputes depended."

58.The relevant conclusion of the learned judge is at p. 27,

"I am satisfied that the Hong Kong law of limitations, is an "aspect of English law", and that, even though it might be procedural, it would affect the operation of the substantive Chinese law which applied to New Territories land by virtue of Section 13 of [the New Territories Ordinance]. Therefore it must be disregarded, in exactly the same way as Mills-Owens J disregarded the rule against perpetuities."

59.It seems that the learned judge thought that by virtue of Section 13 of the New Territories Ordinance application of customary law was mandatory. In this regard he followed the decision of Mills-Owens J in Tang Kai-Chung v Tang Chik-shang [1970] HKLR 276 and counsel did not argued otherwise (see p. 26). Section 13 provides as follows,

"(1) ... in any proceedings in the Court of First Instance 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."

60.However, in the later case of Wu Koon Tai v Wu Yau Loi [1997] AC 179, the Privy Council held in an appeal from Hong Kong that old customary land law could not be allowed to cut across and to trump the new system for deducing title introduced into the New Territories after 1898. A submission by counsel that effect should be given to the applicable Chinese customary law based on Section 13 was rejected (see p. 187D to F). Although Tang Kai-Chung v Tang Chik-shang [1970] HKLR 276 was not referred to in the judgment of Lord Browne-Wilkinson, it had been cited by counsel for the plaintiffs (see p. 181H).

61.In Tang Kai-Chung v Tang Chik-shang [1970] HKLR 276, Mills-Owens J reviewed the history as to the introduction of the English law to the New Territories and the enactment of various pieces of legislation regarding the application of Chinese customary law in the New Territories (see p. 287 to 291). At p. 294 to 295, his Lordship came to the conclusion that the application of Chinese custom and customary rights was mandatory instead of discretionary. Two reasons were given : (1) the use of the same expression ("shall have power") in Section 13 as the provision that empowered the Land Officer to decide land disputes and (2) chaos would ensue if the application of custom were merely discretionary.

62.Purely as a matter of ratio decidendi, the decision of Mills-Owens J on the prevalence of Chinese customary law over English law by reason of Section 13 could be confined to two points. Firstly, in the following ruling at p. 295,

"... 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."

Secondly, in the ruling that to allow partition would be contrary to Chinese custom (see p. 298 and 321-2). If I may say with great respect, there cannot be any doubt that these rulings of the learned judge were correct. However, there could be difficulties if one were to extrapolate from these rulings a general proposition that by virtue of Section 13, the court must apply Chinese customary law in all disputes affecting land in the New Territories.

63.The decision of the Privy Council showed that notwithstanding Section 13, one cannot apply Chinese customary law in every aspect of land disputes even though the subject matters of such disputes were land in the New Territories. I do not think it is correct to suggest that the decision of the Privy Council was an exception by reason of Section 17 that dealt specifically with succession. One of the issue before the Privy Council was the right of the purchaser from the son. At p. 188-189, Lord Browne-Wilkinson resolved this by concepts under the general law. In my judgment, the rationale of the Privy Council was that in the devolution of title, general law prevails over Chines customary law even for land in the New Territories. His Lordship said so in terms at p. 187H. It follows that Section 13 cannot be construed as stipulating that in all matters concerning land in the New Territories, the court must apply Chinese customary law.

64.In fact, to hold otherwise could lead to absurd results and would clearly be contrary to the well established practices in the courts in Hong Kong. Not only do the general law apply to devolution of title in the New Territories, they also apply to issues like restrictive covenants, easement, leases, mortgages, town planning affecting land in the New Territories. There has not been any suggestion that Chinese customary law should be applied regarding these disputes. Even for Tso lands in the New Territories, it cannot not be imagined that the Tso needs not observe the restriction on use of the land imposed by the lease conditions or the relevant legislation because there was no such restriction under Chinese customary law.

65.Coming back to Tsang Wing-lung v Tsang Lun [1993] 2 HKLR 23, the plaintiff in that case claimed entitlement to the estate of his father who died intestate. The estate consisted of properties in the New Territories. After the death of the father, the properties were registered under the names of two brothers. The action was brought by the plaintiff against those two brothers. By the time of the trial, the plaintiff had settled with one brother whilst the other had died. The deceased brother's estate was represented by the Official Administrator. One of the issue taken by the Official Administrator was limitation. Two points were raised by the plaintiff in response. Firstly, he argued that by reason of Section 13, Chinese customary law applied and there was no rule of limitation. Secondly, the action was in the nature of a claim by beneficiary to recover trust property from trustee, Section 20(1)(b) applied. Deputy High Court Judge Sharwood accepted both arguments of the plaintiff. As I said, the learned judge and counsel proceeded on the basis that since the subject matters were land in the New Territories, the application of customary law was mandatory. With great respect, for reasons given, I beg to differ.

66.Mr Lim pointed out that in that case, the learned Deputy Judge was only concerned with the effect of limitation with regard to claims arising from succession. He submitted that different consideration applies when one is dealing with the interest of third parties. I do not propose to decide whether this is a valid distinction. Since I do not regard Section 13 as making the application of customary law mandatory, I cannot accept Tsang Wing-lung v Tsang Lun [1993] 2 HKLR 23 as a sufficient authority for holding that adverse possession cannot be established in the New Territories as a matter of law.

67.I am conscious of the fact that in To Kan Chi v Pui Man Yau, HCMP 562 of 1992, 26 November 1998, at Paras. 13.1 and 13.2 Yam J followed the approach of Deputy High Court Judge Sharwood and held that there is no rule of limitation to bar the claim of the members of any clan, family or tong in Chinese law and custom. I have cited Para. 13.2 of the judgment of Yam J in Paragraph 47 above. With the greatest respect and with some diffidence, I venture to suggest that the point made by Yam J in that paragraph should be considered in the context of the trust argument on the basis that the Limitation Ordinance is applicable. The result would be the same, viz. that the claim of the members were not time barred, but the route is different.

68.I acknowledge that in Para. 13.1, Yam J did express the view that by Section 13, application of Chinese custom is mandatory. For reasons given, and with greatest respect, I beg to differ.

69.Cases of adverse possession involving land in the New Territories come before the court from time to time. Notwithstanding the decision of Deputy Judge Sharwood, I am not aware of any case (apart from the decision of Yam J) in which the court held that adverse possession could not be established because of Section 13. Mr Chan, who have a lot experience in this kind of litigation, confessed that he has obtained on behalf of squatters numerous declarations of possessory title regarding New Territories land from the court. In fact, most of the cases of adverse possession in Hong Kong touch upon land in the New Territories and some of those have reached the highest authority, e.g. Chung Ping Kwan v Lam Island [1997] AC 38. To say the least, it would be mischievous if the court were to hold now that the concept of adverse possession has no application in the New Territories. Given my conclusion as to the construction of Section 13, I do not think the court should apply Section 13 in a manner which allows Chinese customary law to prevail over the relevant limitation statutes which have been applied in the New Territories for decades.

70.In coming to such conclusion, I bear in mind that the Limitation Ordinance was enacted by the local legislature in 1965. If it were thought that the provisions therein should not be applicable to the New Territories by reason of some pre-existing Chinese customs, I fail to see the reason why there was no express provision to such effect in the Ordinance.

71.Should there be any difference in respect of Tso property? Section 13 does not differentiate between Tso land and other land in the New Territories. Neither does the expert evidence adduced before Deputy Judge Sharwood. Tsang Wing-lung v Tsang Lun [1993] 2 HKLR 23 did not concern Tso property. For the preservation of the interest of the members and Tso as an institution, I am of the view that my decision on the trust argument has already placed a Tso in a much better position than other owners of land in the New Territories regarding the operation of the Limitation Ordinance. I do not see any justification for further protection being given to them by holding that the Limitation Ordinance has no application to Tso property at all pursuant to Section 13. In fact, in my analysis under the trust argument, I have given effect to Section 13 by following Tang Kai-Chung v Tang Chik-shang [1970] HKLR 276 and Kan Fat-tat v Kan Yin-tat [1987] HKLR 516 regarding the nature of the Tso and the interest of its members.

72.For these reasons, I hold that the provisions of the Limitation Ordinance and, prior to 1965, the 1833 Act, apply to Tso property in the New Territories notwithstanding Section 13 of the New Territories Ordinance.

Conclusions

73.I therefore determine the preliminary issue against the Defendant regarding the customary law argument. On the trust argument, my determination is that the title of the managers could have been extinguished upon lapse of 20 years from 1923. However, in any event, the equitable interests of the following members of the Tso have not been extinguished: Tang King Loi, Tang Ka Hei, Tang Pak Hin.

74.It is not very clear to me whether the Defendants were sued in their capacity as trustees in the present action or as representatives of all the members of the Tso. I do not know whether Tang King Loi, Tang Ka Hei, Tang Pak Hin, or at least one of them, would join or be joined as parties to this action. In view of that, I shall hear parties on the order or direction that I should make in the light of my determination. The matter should be restored before me for that purpose.

Representation:

Mr Malcolm Lim, instructed by Messrs Leung Kin & Co., for the Plaintiff

Mr Louise Chan, instructed by Messrs Wong, Hiu & Co., for the Defendant