Tang Yuk Kam and Others v. Tang Hing Loi and Others

HCA004328/1981

BETWEEN: -

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Coram: Jackson-Lipkin, J. in Chambers.

Dates of Hearing: 14th and 28th February and 1st March 1985.

Date of delivery of Judgment: 1st March 1985 at 10.05 a.m.

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JUDGMENT

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(Delivered in English: Translated into Cantonese for the Village Elders).

1. Several unhappy disputes have arisen concerning some land in the New Territories. It causes me considerable pain to see Chinese gentlemen litigating in public over family matters. It should not happen, but it has. So I must deal with it.

2. Now there are two actions. One was started in 1981, in which the managers of TANG LEE YAU TSO are the Defendants. That is the one before me to-day. In 1984, another action was commenced in which those managers were the Plaintiffs. Neither action has been heard.

3. The 1981 action was called on for hearing on the 6th of January in the Year of the Pig: I gave certain direction. Here we are, in the Year of the Ox, and matters still have not come back before me. The 1984 action which was commenced in the Rat Year has still not come up for hearing - a situation that I do not propose to permit to be perpetuated: There is a very large number of members of the TANG family, the TANG clan, and the various TSOs waiting to receive their share of the proceeds of sale of the TSO land. They may want the money for proper and commendable purposes such as ancestral worship, or the building or restoration of ancestral halls: They may wish it for the education and betterment of their children, their grandchildren and their great grandchildren. It is essential that these unhappy disputes be settled as soon as possible.

4. What is before me to-day is an application, before any decision has been made in the action. I am not being asked to decide any of the disputes between the parties: I am not even being asked to decide who are the persons entitled to the money: I have been given hardly any information whatever about the background. The matter has been put before me almost as if it were a foregone conclusion that I would release moneys. Those moneys are presently in Court, earning a good rate of tax-free interest. I am asked to order a distribution, not of all the money, but of a proportion of it, a proportion worked out almost arbitrarily, at a time when I do not even know how many people are entitled to share in it, or who they are.

5. Now, on the side of the application for the interlocutory release of the money, I am told there are 94 persons entitled - 48 are of age, 46 are under age. Of the 48, only 30 have signed the documents supporting this application. The 18 others have been signed by persons in respect of whom not a shred of evidence has been put before me that they had lawful authority to sign on their behalf. Five of them are resident under the Queen's protection here in Hong Kong. 13 of them are resident in foreign countries.

6. Of the 46 under age, 3 have signed personally. But, just as in Imperial China, so in Hong Kong, the Judges are guardians on behalf of the Sovereign of all persons under age. Protection of persons under age is one of the major functions of the Judges. Of those under age, 3 have purported to sign personally. I do not know what their ages are: They may be so young that they did not know what they were signing: I just do not know: I have not been told. I shall disregard those signatures.

7. Of the remaining 43, 30 fathers have signed on their behalf. Those signatures of course I do accept. A father is guardian of each of his children by the Law of Nature, by the Laws of England, which are as near as possible to the Law of Nature, by the Laws of Hong Kong, and by the Laws applying to the New Territories of this Colony.

8. There are 13 signatures by persons purporting to be guardians. There has not been put before me the slightest evidence that those persons have any authority to act as guardians. For all I know, those 13 youngsters may have fathers who are living. There is no evidence before me as to whether their fathers agree or disagree.

9. Now that is put before me on the application for distribution. But there was put before me on the last occasion, in the Year of the Rat, an advice from my younger brother MIU Hung-chow. I should say that younger brother MIU Hung-chow is a man highly respected for his knowledge of Chinese Law. On behalf of the applicants for this distribution, he told me, in his opinion, that there could be distribution only by agreement of all the male members for the time being of the TSO family: page 65.

10. Those who are objecting are not objecting to the distribution of the money itself, but to the distribution of the money at this early stage - before the Court has determined who the beneficiaries are, and in what shares. They have been advised by Dr. HU Hung-lik, a man whose opinion I respect greatly, and whose knowledge of Chinese law is also profound. Following his opinion that a majority should approve before the distribution (page 57), a document has been put before me shewing that there are 76 and not 94 persons entitled - 59 adults and 17 under age. 44 of those adults have signed personally, 15 signed by other persons whose authority I know not.

11. Of the persons under age, 13 have signed personally and for the same reason, I do not accept those signatures. Of the remainder, only one has his father's signature: 3 signatures were those of by purported guardians. But, even if that arithmetically would amount to a majority, I still do not know whether there are 76 persons entitled or 94. If there are 94, 45 is not a majority.

12. When the matter was last before me, I made it quite clear that the proper form of registration of membership of the TSO should be undertaken; just as it was undertaken several years ago. Since that time, there have been, unfortunately, deaths, as is the course of nature, and equally, as is the course of nature, there have, happily, been births. Further registration is clearly required. I made it quite clear, the last time this was before me, that registration should be undertaken as soon as possible. It has not been. Yet I am nonetheless asked to make a distribution.

13. Furthermore, I am told - but it has not yet been proved before me; yet I cannot ignore it - that persons over a certain age are entitled to more than one say in the affairs of the TSO. Although it has not yet been proved formally before me, I have been informed that persons over 60 are entitled to one additional say, and over 70, two additional says: page 45. That, of course, is said to be Chinese Customary Law. It seems to accord with the Natural Law as well. Who is better qualified to decide what should happen with TSO property than the old men of the family, calling on their experience of years, their experience of life, and their knowledge of family affairs? But until I know whether or not that is correct, and until I know how many are over 60 and how many are over 70, how on earth can I decide whether there is a majority in favour or a majority against, whether there is unanimity. It is impossible to work out the majority until I know who are the members and how many votes they have.

14. Now it is urged upon me that I should look at what happened to the 1984 action. If I were to accede to that request, which I do not propose to do, for it has no relevance to this application - but if I did, I would find out that there had been, in those proceedings, proper registration of the membership; that the decision to distribute was unanimous; and that, significantly, not all the money went to persons, but a proportion of it went, as is right and proper, to ancestral worship.

15. I am sitting here in the Queen's Courts as a Hong Kong judge, and not an English judge, and the laws and customs of the Chinese inhabitants of the New Territories under the Queen's protection are equally part of the laws of Hong Kong which, in relation to land in the New Territories, I am bound to administer. The view I formed on New Year's Eve was fortified by everything I heard yesterday - that this application is premature. It was fortified by what I heard yesterday, and it has not been changed by what I heard to-day.

16. Distribution prior to Judgment is a matter in my discretion. For all the reasons I have given, I do not propose to order a distribution, and, additionally, I exercise my discretion against so doing at this stage. Of course, there will be distribution as soon as I can get people to get a move on, and get these Actions heard.

17. I wish to make it quite clear, gentlemen, what I have just said, that, on the matter before me, I do not think the exercise of my discretion even arises, because there is nothing, or, at least, insufficient material, upon which to exercise that discretion. But, if there were sufficient and cogent evidence before me upon which I could exercise my discretion, despite all the unknown factors, I would not exercise my discretion at this stage.

18. This application therefore will be dismissed with costs, with a Certificate for two counsel, unless either Mr. Kowk or Mr. Cheung objects to such Certificate.

Representation:

Solicitors: Messrs. Chan & Cheng for the Plaintiffs.

Messrs. Woo & Woo for the Defendants.

In Attendance: Several Village Elders.