Read the full judgment text of HCA 004101/2005 on BabelCite. This High Court CFI judgment was delivered on 10 March 2006 before Deputy High Court Judge Saunders.
Civil procedure – striking out – O 18 R 19 – whether statement of claim discloses reasonable cause of action – Chinese customary law – Tong – partnership – rule against perpetuities – public policy – New Territories Ordinance (Cap 97) s 13(1) – extension of time to appeal under O 3 R 5 and O 58 R 1/3 – claim by plaintiff to be member/beneficiary/partner of two Chinese Tongs (Chan Him Muk Tong and Lee King Sun Tong) and a partnership allegedly formed in 1600 by Chen Tiquan and Li Shengzuo – properties on Hong Kong Island held under fictional names – alleged breaches of trust from 1924 to 2001 – held: claim wholly misconceived and struck out – Hong Kong courts' power to enforce Chinese customs in relation to land confined to New Territories under s 13(1) of New Territories Ordinance (Cap 97) following Tang Kai-chung v Tang Chik-shang [1970] HKLR 276 and Kan Fat-tat v Kan Yin-tat [1987] HKLR 516 – Tong offends rule against perpetuities by restricting devolution to male descendants taking life interests with gift never vesting, per Halsbury's Laws of England Vol 32 paras 905(1) and 905(3) – Tongs not charitable – partnership as pleaded not recognised at English or Hong Kong law as it is contractual and consensual, not transmissible by birth, per Lord Millett in Hurst v Bryk [2002] 1 AC 185 – foreign law not enforced where contrary to Hong Kong public policy, per Rousillon v Rousillon (1880) 14 Ch D 351 and Yeap Cheah Neo v Ong Cheung Neo (1873-75) LR 6 PC 381 – pleadings incapable of repair by amendment – appeal from Master's order of 28 November 2005 giving leave to file Re-Amended Statement of Claim dismissed for want of prosecution, with no affidavit or explanation for the 30-day delay, following Postwell Ltd v Cheng Kap Sang [2004] 1 HKLRD 355 – order nisi that Plaintiff pay Defendants' costs on party and party basis, his own costs on Legal Aid Regulations.
Legal issues: Extension of time to appeal from Master's order · Enforceability of Tong membership rights in relation to Hong Kong Island land · Tong as offending the rule against perpetuities · Whether the pleaded partnership is recognised at Hong Kong law · Enforcement of foreign law contrary to Hong Kong public policy
Outcome: Application to extend time to appeal refused; appeal from Master's order dismissed; statement of claim struck out as disclosing no reasonable cause of action.
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