Hau Poon Sek and Others v. Hau Chi Kin and Another
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HCA 2168/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 2168 OF 2004 ---------------------- BETWEEN
---------------------- Before: Deputy High Court Judge Lisa Wong, SC in Court Dates of Trial: 19, 20, 21, 22, 23 and 27 May 2008 Date of Judgment: 20 February 2009 ------------------------ J U D G M E N T ---------------------- 1.What the Court has to decide in this action is whether the Defendants, Hau Chi Kin (侯志堅)and Hau Kin (or Chi) Cheung (or Cheong or Cheng) (侯健昌), are members/beneficiaries (有份人) of Hau Shiu (or Siu or Chiu or Shu) Ki Tong (侯紹箕堂) (“Shiu Ki Tong”), a tong registered under s.15 of the New Territories Ordinance (Cap. 97) (“the Ordinance”) and of which the Plaintiffs, Hau Poon (or Pun) Sek (侯磐石), Man Choi Ho (文才好), Hau Koon Kei (侯冠基) and Hau Man Ming (侯文明), are the current sze lei (司理) (managers). THE HAU CLAN IN PING KONG VILLAGE, SHEUNG SHUI 2.Hau Poon Sek, Hau Koon Kei and Hau Man Ming, the first to third-named Plaintiffs, Hau Kai Fat (侯繼發), the husband of Man Choi Ho, the fourth-named Plaintiff, and the Defendants are all descendants of one Hau Poon Chung (侯本中) alias Hau Hip Yiu (侯協堯), the 23rd generation ancestor of the clan surnamed Hau (“the Hau Clan”) in Ping Kong Village, Sheung Shui, New Territories through Hau Kam Cheung (侯錦章), the elder son of Hau Poon Chung, and Hau Sek Kui (侯錫琚) alias Hau Kei Sau (侯琪秀), the son and heir adopted posthumously for Hau Kam Cheung who had died without leaving any male issue from his younger brother, Hau Fung Cheung (侯鳳章). 3.Insofar as it is material to this action, as shown in the genealogy charted in Schedule 1 to this Judgment (“Schedule 1”),
DIVISION OF HOUSEHOLD (分家) AMONG THE 5 FONGS 4.Hau Sek Kui died in 1894. As evidenced by a document dated 1895 referred to at the trial as “the 1985 fan ka Document”, disclosed and produced by the Defendants and accepted as authentic by the Plaintiffs, a division of Hau Sek Hui’s household took place in 1895. 5.The 1895 fan ka Document reads as follows:
6.Included as one item with the aforesaid is a two page document (which shall be included in the shorthand description “the 1895 fan ka Document”) beginning with the following 3 lines :
(Hau) Tun (or Dun) Yan Tong (侯敦仁堂) (“Tun Yan Tong”) is a tong focused on the said 23rd generation ancestor, Hau Poon Chung alias Hau Hip Yiu. What follows is then a list of fields that were sheung yip (嘗業) (ancestral property) passing down from Tun Yan Tong to Tai Chak (大宅) (referring to Hau Kam Cheung’s branch of the family) and Yi Chak (二宅) (referring to Hau Fung Cheung’s branch of the family), the income receivable from each such field, etc. 7.As shown in Schedule 1, Hau Sek Kui was survived by his widow, Tang Si (鄧氏), his concubine, Wong Si (黃氏), and 4 sons namely, Hau Lun Cheung, Hau Hin Cheung, Hau Chun Cheung and Hau Chik Cheung. 8.According to the 1895 fan ka Document, Tang Si, pleading the stress of advanced years, called upon her brother, Tang Wai Lun (鄧惠麟), to effect an equal division of Hau Sek Kui’s household among his 5 sons in the presence of the family elders. 9.Since Hau Sum Cheung had predeceased Hau Sek Kui without leaving any male issue, Tang Wai Lun, acting in accordance with the dying wishes of Hau Sek Kui, first of all arranged for the adoption of Hau Lun Cheung’s eldest son, Hau Ping Hong (侯炳匡) alias Hau Wun Man (侯煥明), to the line of Hau Sum Cheung. 10.As explained by Professor Hugh Baker, the Defendants’ expert on Chinese custom, in his Supplemental Opinion dated 13 May 2008, the property dealt with at the household division evidenced by the 1895 fan ka Document fell into 3 categories:
11.Unfortunately, what is left of the 1895 fan ka Document does not show the breakdown of division of the ka estate among the 5 fongs or what sheung kuk or sheung yip were comprised of. FAMILY TONGS FOUNDED BY THE HAU CLAN 12.Members of various generations of the Hau Clan had founded and had, since the coming into force of the Ordinance, have registered under s.15 thereof a number of tongs. Shiu Ki Tong is one such tong. Other than Shiu Ki Tong and Tun Yan Tong mentioned in paragraph 6 above, the following Hau family tongs also feature in this case:
LAND HOLDINGS OF THE 5 FONGS & THE HAU FAMILY TONGS 13.Included in the trial bundles are copies of the substituted Schedules of Crown Lessees dated 27 June 1907 (“the Crown Lease Schedules”) to the Block Crown Leases dated 27 March 1905 of Demarcation Districts (“DD”) Nos. 76, 77, 82, 84, 91, 92, 95, 100 and 108. 14.The Crown Lease Schedules show that as at 27 June 1907, each of Hau Ping Hong, Hau Lun Cheung, Hau Hin Cheung, Hau Chun Cheung and Hau Chik Cheung had registered to his personal name a substantial holding of land. However, due to the lack of information of the precise distribution of Hau Sek Kui’s ka estate among the 5 fongs, it is now impossible to ascertain whether and, if so, which of the lands registered in the names of Hau Ping Hong, Hau Lun Cheung, Hau Hin Cheung, Hau Chun Cheung and Hau Chik Cheung were transmitted to them from Hau Sek Kui though it would in my view be reasonable to suppose that at least some of such lands were inherited by Hau Ping Hong, Hau Lun Cheung, Hau Hin Cheung, Hau Chun Cheung and Hau Chik Cheung from Hau Sek Kui. 15.As for the tongs, it is agreed between the parties that as at 27 June 1907,
Incidentally, the Crown Lease Schedules are the earliest documents on which the names of Shiu Ki Tong and Suen Mao Tong appear, indicating that these tongs must have been formed before 27 June 1907. 16.As for Tai Chak Tong, there is no record of any land holdings registered to this tong. LOTS 666& 667 in DD 76, LOT 1241 IN DD 77 & LOT 358 IN DD 84 17.The lands co-owned by Shiu Ki Tong and Yi Chak Tong as at 27 June 1907 included Lots 666 and 667 in DD 76, Lot 1241 in DD 77 and Lot 358 in DD 84. 18.Lot 1241 in DD 77 and Lot 358 in DD 84 are still registered in the joint names of Shiu Ki Tong and Yi Chak Tong. 19.Lots 666 and 667 in DD 76 had long been disposed of as follows:
WHAT THEAVAILABLE TONG RECORDS SHOW 20.As will be seen later in this Judgment, much of the dispute between the parties in this action centres upon the formation and constitution of Shiu Ki Tong and, to a less significant extent, Suen Mao Tong. However, there are very few early records of the Hau family tongs, not to mention documents showing or evidencing their establishment. The 1918 Rent Book 21.Other than the Crown Lease Schedules (which, as said in paragraph 15 above, suggest or tend to suggest that Shiu Ki Tong was formed before 27 June 1907) and the various memorials registered in the District Office at Tai Po, the only such record that this Court has been shown is what has at the trial become known as “the 1918 Rent Book” which is a traditional Chinese thread-bound book with a cover bearing the title “民國七年戊午仲夏謄鈔新界糧冊”. 22.The 1918 Rent Book is produced by the Plaintiffs, the same having been kept by the Hau Sum Cheung fong, the most senior fong of the Hau Kam Cheung branch of the Hau Clan and of which Hau Poon Sek is the present head. According to Hau Poon Sek, the first witness as to fact for the Plaintiffs, the 1918 Rent Book was passed to him by his father, Hau Tze Lam (侯梓林), when Hau Tze Lam retired, and Hau Poon Sek took over, as a manager of various Hau family tongs including Shiu Ki Tong and Suen Mao Tong in 1969. 23.The title of the 1918 Rent Book suggests that it was transcribed from another document in the summer of 1918. The identity of the person who did so can no longer be ascertained. Since coming into being in 1918, the 1918 Rent Book had over the years been updated by additions/deletions as appropriate until times as recent as 6 March 1970 (to record the surrender of Lot 2329 in DD 91 by Shiu Ki Tong to the Government for the construction of a playground). As will be seen later, some but not all of the subsequently introduced contents can be traced. 24.The 1918 Rent Book is organized into chapters, each dealing with one tong with the following information: the manager(s) of the tong, the lot and demarcation district numbers and descriptions of the lands owned by the tong and in respect of each piece of land, the name of the tenant, the rent payable by the tenant to the tong and the Crown rent payable by the tong to the Government, etc. 25.Of particular relevance to this action is the chapter devoted to Shiu Ki Tong and Yi Chak Tong jointly :
26.There is also a separate and much shorter chapter on Shiu Ki Tong (the 18th to 19th pages). The only point of interest is that only the 4 fongs of Hau Sum Cheung, Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung rotated on duty (輪值) annually. In this regard, as shown in Schedule 2 to this Judgment, beginning from 11 October 1939, Shiu Ki has always had 4 managers, one from each of the 4 fongs of Hau Sum Cheung, Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung. Each of the Plaintiffs, the current 4 managers of Shiu Ki Tong, is drawn from one of these 4 fongs. 27.In contrast, the chapter on Suen Mao Tong (the 2nd to 9th pages) show that all the 5 fongs rotated on duty annually. In particular, Hau Chun Cheung was on duty for the years 乙丑 (1925), 庚午 (1930), 乙亥 (1935) and庚辰 (1940). After Hau Chun Cheung’s death in 1941, Hau Yun Wei started to take Hau Chun Cheung’s place on the roster from the year 乙酉 (1945). 28.Tai Chak Tong does not feature at all in the 1918 Rent Book. This, read together with the fact that there is no record of any land holdings registered to Tai Chak Tong, suggests to me this tong had long ceased to be operative. Indeed, Professor Baker thinks that it is possible that Tai Chak Tong was a commonly accepted name for Hau Kam Cheung’s branch of the family rather than a formally constituted tong, the first formally established tong in Hau Kam Cheung’s line probably being focused on his adopted son and heir, Hau Sek Kui. The Shiu Ki Tong Ledger 29.Another available record, though much later in time than the 1918 Rent Book, is a book entitled “國五十一年歲次壬寅正月初一立 紹箕堂祭祖進支數部” (“the Shiu Ki Tong Ledger”). As the title suggests, this ledger was started on the 1st day of the 1st month of the lunar calendar in 1962 (i.e. 5 February 1962). 30.The Shiu Ki Tong Ledger contains annual statements of the income and expenditure of Shiu Ki Tong from 1962 and 2005 (both years inclusive). According to Hau Poon Sek and Hau Liu Shun Yau (侯廖順有), the wife of Hau Cheuk Pui (侯灼培) and mother of Hau Koon Kei and the second witness as to fact for the Plaintiffs, the 4 managers of Shiu Ki Tong take yearly turns in collecting grain/rent and disbursing expenses of the tong as well as in keeping the Shiu Ki Tong Ledger. This is borne out by the manner in which the yearly income and expenditure accounts are kept. 31.Another point to note is that after paying all expenses, the surplus income of Shiu Ki Tong is invariably recorded as having been divided and distributed in 4 equal shares. The 4 beneficiaries are the 4 fongs of Hau Sum Cheung, Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung as identified in the long preamble at the 1st to 3rd pages in the following terms:
32.In view of the clear annual income and expenses statements in the Shiu Ki Tong Ledger, the authenticity and truth of which I accept, I reject the unsupported assertions by Hau Chi Kin (who is the only factual witness for the Defendants)
33.Apart from stating the beneficiaries for the record, the above quoted preamble also sets out the Crown/Government rent payable by Shiu Ki Tong :
34.The following notes in the handwriting of Hau Tze Lam in the margin space at the top of the 8th to 11th pages seek to explain why Shiu Ki Tong only has 4 shares to the exclusion of the Hau Chun Cheung fong :
Again, Mr Joseph Lam has not challenged Hau Poon Sek’s evidence that his father wrote this particular passage. 35.To summarize this passage, due to an unspecified dispute between the brothers of Tai Chak Tong in the early years, Hau Chun Cheung pressed for a division of the fields jointly owned by Tai Chak Tong and Yi Chak Tong. His 4 brothers, Hau Sum Cheung, Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung, therefore distributed one part of Tai Chak Tong’s half share to Hau Chun Cheung. The 4 brothers kept their shares intact, cancelled the name of Tai Chak Tong and renamed it Shiu Ki Tong. Lots 666 and 667 in DD 76, Lot 1241 in DD 77 and Lot 358 in DD 84 were specified as having been distributed to Hau Chun Cheung. Lots 666 and 667 in DD 76 had been sold by Hau Chun Cheung. The grain/rent collected from and the Crown rent payable for Lot 1241 in DD 77 and Lot 358 in DD 84 were to be shared by Yi Chak Tong and Hau Chun Cheung. SUEN MAO TONG: A CONTRAST 36.Suen Mao Tong has, throughout this action, been used for contrast. There is no dispute that
37.Another matter involving Suen Mao Tong is that according to Hau Poon Sek, prior to the Chung Yeung Festival in 1982, all the expenses incurred for sweeping the graves of the 20th to 24th generation ancestors of the Hau Clan were disbursed out of Shiu Ki Tong while Suen Mao Tong paid only for sweeping the grave of the 25th generation ancestor, i.e. Hau Sek Kui. At the request of the Defendants made after the signing of the document to be mentioned under the next heading in April 1982, Suen Mao Tong has since Chung Yeung Festival in 1982 shouldered the expenses for sweeping the graves of the 20th to 24th generation ancestors as well. This is disputed by the Defendants. 38.Hau Kin Cheung, the 2nd Defendant, as the manager of Suen Mao Tong on duty for 2005, was the last person to have custody of the ledger kept by Suen Mao Tong to record its income and expenses (which, I am given to understand, is in a form similar to the Shiu Ki Tong Ledger). Hau Kin Cheung was supposed to pass the book to Hau Man Ming, the next manager on the roster, in 2006 but claims to have lost it. Upon an order made upon the Plaintiffs’ application, Hau Kin Cheung made an Affirmation to such effect on 21 May 2008. Although Hau Liu Shun Yau’s testimony of a conversation that she had had with Hau Kin Cheung in which Hau Kin Cheung told her that he had given the Suen Mao Tong income and expenses ledger to his solicitors contradicts Hau Kin Cheung’s Affirmation, the Plaintiffs have not applied to cross-examine Hau Kin Cheung on his Affirmation. Hau Kin Cheung has not been called as a witness though he has given a witness statement which is, save for 5 paragraphs, identical to that of Hau Chi Kin and which I shall have to disregard. 39.However, the Court does have the Shiu Ki Tong Ledger which, consistently with Hau Poon Sek’s testimony on this point, shows that before 1982, the bulk of the expenses incurred by Shiu Ki Tong were for ancestral worshipping rites and that beginning from 1982, such expenses have ceased altogether. Also, the significance as to which tong pays for worshipping ancestors common to the 5fongs is that it is consistent with an understanding that of the 2 tongs, Suen Mao Tong is the one owned by all 5 fongs and should disburse expenses that should be shared between all 5 fongs. THE 1982 MEMORANDUM 40.On 19 April 1982, the managers of Shiu Ki Tong (who were then Hau Poon Sek, Hau Liu Tim Lan, Hau Cheuk Pui and Hau Man Ming) and the Defendants signed in duplicate a document entitled “紹箕堂分田証明書 77約第1241號及84約第358號地段 証明書” (“the 1982 Memorandum”). 41.The 1982 Memorandum reads as follows:
42.It is common ground that
43.The points of contention regarding the 1982 Memorandum between Hau Poon Sek and Hau Liu Shun Yau for the Plaintiffs on the one hand and Hau Chi Kin for the Defendants on the other hand are:
44.I do not consider it necessary to resolve every little factual difference between the parties. The questions set out in paragraphs 42(1) to (3) above are, to my mind, quite irrelevant, there being no dispute that the Defendants did sign the 1982 Memorandum. Leaving aside the truth or falsity of the content of the 1982 Memorandum which is of course the very issue that I have to decide in this case, the only question the answer to which would affect the evidentiary significance and weight to be attached to the document is that arising from the Defendants’ allegation of misrepresentation and undue influence. 45.The allegation of misrepresentation and undue influence runs as follows :
46.Hau Poon Sek’s evidence is that he had no direct personal knowledge of the matters stated in the 1982 Memorandum. He drafted that document from what appears in the tong records (in the forms of the 1918 Rent Book and the Shiu Ki Tong Ledger) as well as from what his father, Hau Tze Lam, had told him when he handed over to him the tong management which is consistent with the said tong records. Nevertheless, it would have been implicit in the managers’ endorsement of the 1982 Memorandum that they believed in its content. 47.On the other hand, it is not suggested that either of the Defendants signed the 1982 Memorandum without having been apprised of its content. Further, they had subsequently been given one of the 2 signed copies for their record. They have kept their copy for many years. They must have had abundant opportunities to review the document. The Defendants had not, until early 1999, taken any position inconsistent with the content of the 1982 Memorandum. 48.Further to my rejection of his evidence as to the receipt of a share of rent by their fong from Shiu Ki Tong, I have to say I have serious reservation as to the credibility of Hau Chi Kin’s overall evidence. He answers questions with long pauses. His answers are often inconsistent with each other, contradictory to documents or other objective circumstances and inherently implausible. He from time to time corrects answers previously given. He has no or no plausible answers to many questions which are clearly pertinent. 49.In particular, I find it hard to believe that either of the Defendants would blindly accept anything just because Hau Poon Sek, Hau Cheuk Pui and Hau Man Ming said so or sign the 1982 Memorandum if the matters stated therein were news to them. I believe they indorsed the 1982 Memorandum because its content accords with their own understanding of the position of the Hau Chun Cheung fong vis-à-vis Shiu Ki Tong which is that the Hau Chun Cheung fong does not belong to Shiu Ki Tong. 50.Any or any claimed understanding to the contrary would be incredible in the circumstances. The 1st and 2nd Defendants were respectively 25 and 28 years old as at the date of the 1982 Memorandum. The 2nd Defendant had for some years since Hau Yun Wai’s death took over his position as a manager of Suen Mao Tong representing the Hau Chun Cheung fong, acting alongside 4 managers from the other fongs of the Hau Sek Kui’s branch of the family. Hun Yun Wai had, to the knowledge of the Defendants, inherited that position from his adoptive grandfather, Hau Chun Cheung. The male descendants of the Hau Chun Cheung fong have always been receiving a 1/5th share of Suen Mao Tong’s surplus income. In contrast, I have already held in paragraph 32 above that Hau Yun Wai had not during his lifetime received any distribution from Shiu Ki Tong, nor have the Defendants after his death. Neither Hau Yun Wai nor either of the Defendants had/have been a manager of Shiu Ki Tong. The lack of participation by Hau Yun Wai and the Defendants in the management and income of Shiu Ki Tong is particularly acute when contrasted with the situation vis-à-vis Suen Mao Tong. It goes without saying that I also reject Hau Chi Kin’s evidence that Hau Yun Wai had during his lifetime told him and his brother that they also had a share in Shiu Ki Tong. If Hau Yun Wai had so told the Defendants, one would have expected them to steadfastly refuse to sign the 1982 Memorandum. 51.For the sake of completeness, the Defendants also seek to wriggle out of the 1982 Memorandum by pleading want of consideration. As I see it, the 1982 Memorandum merely records a past transaction and does not purport to effect any new contract. The concept of consideration has no application. TRANSACTIONS GIVING RISE TO THE PRESENT DISPUTE Resumption of portion of Lot 1649 in DD 91 by the Government 52.Against the aforesaid background, on 6 November 1998, the District Lands Office North (“DLON”) served on the Plaintiffs as managers of Shiu Ki Tong and the managers of Yi Chak Tong Government Notice No.5080 dated 16 October 1998 to the effect that a portion measuring 687.9 square metres of Lot 1649 in DD 91, co-owned by Shiu Ki Tong and Yi Chak Tong, would be resumed by the Government. By DLON’s further letter dated 23 February 1999, the Government offered the two tongs HK$2,452,536 by way of compensation. Shiu Ki Tong’s share was HK$1,226,268 (“the Compensation”). Insofar as Shiu Ki Tong is concerned, complications had however arisen. 53.Firstly, DLON’s said letters were addressed also to Hau Chak Wing (侯擢榮), an alias of Hau Hin Cheung who was the sole manager of Shiu Ki Tong until his death in 1910. They were so addressed because the records kept by the Land Registry in respect of Lot 1649 in DD 91 still showed Hau Chak Wing as a manager of Shiu Ki Tong. Apparently, the Appointment of Trustee dated 10 March 1911 (Memorial No.16296), whereby Hau Ping Hong (侯炳匡) using his alias Hau Wun Man (侯煥明) and Hau Ping Hong (侯平匡) using his alias Hau Wun Yiu (侯煥堯) were appointed as managers of Shiu Ki Tong in replacement of Hau Chak Wing who had since deceased, omitted to identify the lands affected by the death of Hau Chak Wing. DLON regarded the continued registration of Hau Chak Wing as a manager of Shiu Ki Tong to be a matter going to the Plaintiffs’ title to, inter alia, Lot 1649 in DD 91 and refused to release the Compensation to the Plaintiffs. The title defect so perceived by DLNO was eventually removed by the Plaintiffs applying to this Court and obtaining in HCMP 2613/2002 a declaration that the Plaintiffs were the only duly appointed current managers of Shiu Ki Tong on 19 December 2002. 54.Secondly, the Defendants had in the meantime since 14 January 1999 asserted to DLON their membership of Shiu Ki Tong, thereby causing the Government to continue to withhold the Compensation despite the said declaration in favour of the Plaintiffs. To cut a long story short, the Plaintiffs did not receive the Compensation until 23 July 2004 and then only after the Plaintiffs had commenced HCAL 21/2004 against the Director of Lands. 55.It is unnecessary for me to refer to all of the Defendants’ letters to DLON. What I note with particular interest are the following :
56.That is to say, the Defendants initially claimed an interest in Shiu Ki Tong by contending that :
57.This line of argument is clearly bad and is no longer pursued by the Defendants. Indeed, it is the Defendants’ own pleaded case in paragraph 34(c) of their Re-amended Defence and Counterclaim that under Chinese law and custom, upon adoption, the adopted son would cease to be the heir/successor of his natural father but would become the heir/successor of his adoptive father. Sale of Lots 882 & 994 in DD 95 58.Next, by an Agreement for Sale and Purchase dated 22 August 2003 (“the Agreement”), the Plaintiffs agreed on behalf of Shiu Ki Tong to sell Lots 882 and 994 in DD 95 for the price of HK$1,916,640. Completion was to take place within 21 days from the Plaintiffs giving the purchaser written notice of consent to the sale by the District Officer North (“DON”) under the Ordinance. The sale and purchase was conditional upon and subject to, and the Plaintiffs were required to use their best endeavours to obtain, DON’s consent on or before 30 June 2004, failing which the purchaser could opt either to extend the completion date for 12 months or to rescind the Agreement. If the consent of the DON should be not forthcoming on or before the extended date of completion, either party should have the option to rescind the Agreement. 59.As it turned out, DON withheld his consent because the Defendants refused to withdraw their claim of membership of Shiu Ki Tong. 60.The Defendants took such position notwithstanding the fact that on 4 September 2003, the 1st Defendant, in his capacity as the Village Representative of Ping Kong Village (a position which he occupied from 1 April 1999 to 31 March 2007), attested the signing of a document entitled “祖/堂物業出售、轉讓同意書” (which was required in support of the Plaintiffs’ application to DON) by all members of Shiu Ki Tong which included neither of the Defendants. The Plaintiffs, quite understandably, place reliance on the 1st Defendant’s attestation of this document. However, I doubt the usefulness of such fact to the Plaintiffs’ case given that by the date of this document, the Defendants had been and were still asserting membership of Shiu Ki Tong. On this, I am inclined to look on favourably the 1st Defendant’s explanation that he thought it was his duty as the Village Representative to be a witness. 61.The Plaintiffs issued the Writ of Summons herein on 20 September 2004. 62.The time for the Plaintiffs to obtain DON’s consent was repeatedly extended up to 30 June 2007. THE ISSUE 63.As said at the beginning of this Judgment, the issue arising for determination in this action is whether the Defendants being the male descendants of Hau Chun Cheung are members of Shiu Ki Tong. 64.Before I turn to the pleadings for the parties’ cases, it is clear to me that neither the Plaintiffs nor the Defendants appreciated at the pleading stage the fact that Hau Sum Cheung had predeceased Hau Sek Kui and therefore could not have himself partaken in either the fan ka in 1895 or the subsequent establishment of Shiu Ki Tong or Suen Mao Tong although his fong was represented in these events by his adopted son and heir, Hau Ping Hong. I shall therefore read all references to Hau Sum Cheung in the parties’ pleadings (which I shall broadly summarise under the next 2 sub-headings) as references to Hau Ping Hong, the head of the Hau Sum Cheung fong at the material times. Plaintiffs’ pleaded case 65.In seeking a declaration that the Defendants are not and were never members of Shiu Ki Tong, it is the Plaintiffs’ primary case that Hau Chun Cheung was never a member of Shiu Ki Tong, the same having been founded by Hau Sum Cheung (Hau Ping Hong), Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung with properties belonging only to them from a fan ka from which Hau Chun Cheung also received a share. 66.Alternatively, if Shiu Ki Tong were founded by all 5 sons of Hau Sek Kui, the Plaintiffs say that shortly after its establishment, at Hau Chun Cheung’s request, there was a “full and final equal division” of the property of Shiu Ki Tong among Hau Sum Cheung (Hau Ping Hong), Hau Lun Cheung, Hau Hin Cheung, Hau Chun Cheung and Hau Chik Cheung. In effect, Shiu Ki Tong ceased upon such division of its property but re-commenced in the same name with the same members as before except Hau Chun Cheung and his male descendants. 67.And, until almost half way through the trial, the Plaintiffs identified a half share in each of Lots 666 and 667 in DD 76, Lot 1241 in DD 77 and Lot 358 in DD 84 to be all the property that had been distributed to Hau Chun Cheung either in the fan ka under the Plaintiffs’ primary case or in the division of tong property under the Plaintiffs’ alternative case. They further say that of these 4 plots of land, the managers of Shiu Ki Tong and Yi Chak Tong sold Shiu Ki Tong=s half shares in Lots 666 and 667 in DD 76 and gave the proceeds to Hau Chun Cheung in August 1909. As for Lot 1241 in DD 77 and Lot 358 in DD 84, at Hau Chun Cheung’s request, Shiu Ki Tong retained registered ownership of a half share in each of such lands, but Hau Chun Cheung was thereafter responsible for paying Crown Rent on them and receiving the rental income from them. 68.There are problems. 69.First, the Plaintiffs proceeded under the impression that Lots 666 and 667 in DD 76, Lot 1241 in DD 77 and Lot 358 in DD 84 which had a combined area of 1.38 acres represented a 1/5th portion of the total land holding of Shiu Ki Tong and Yi Chak Tong. As shown in paragraph 9 of Hau Poon Sek’s Witness Statement dated 21 April 2006, the Plaintiffs arrived at this 1/5th ratio on the premises that all the lands in which Shiu Ki Tong was interested were owned jointly with Yi Chak Tong and that there were only 31 lots of such land with a total area of just 6.95 acres. This is clearly wrong. As stated in paragraph 15(1) above, in fact, Shiu Ki Tong co-owned 53 lots (13.34 acres) with Yi Chak Tong. In addition, Shiu Ki Tong also solely held 44 lots (11.84 acres). 70.The Plaintiffs have in the course of the trial re-re-re-amended the Statement of Claim to the effect that the property that had been distributed to Hau Chun Cheung either in the fan ka under the Plaintiffs’ primary case or in the division of tong property under the Plaintiffs’ alternative case included Lots 666 and 667 in DD 76, Lot 1241 in DD 77 and Lot 358 in DD 84. What other property was or might have been distributed to Hau Chun Cheung is admittedly unclear. 71.Second, the fan ka referred to by the Plaintiffs must be that evidenced by the 1895 fan ka Document which has been accepted as authentic by the Plaintiffs. The 1895 fan ka Document records a division among all the 5 fongs at the instigation of Hau Sek Kui’s widow, and not a division between Hau Chun Cheung on the one hand and the other 4 fongs on the other. The notion that after a distribution to each of the 5 fongs, Hau Ping Hong, Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung then put everything distributed to them back into common ownership by their 4 fongs seems to me to defeat the very idea and purpose of the fan ka. 72.The Plaintiff’s primary case is also somewhat difficult to reconcile with the fact that Hau Ping Hong, Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung each had a substantial land holding under his personal name. As said in paragraph 14 above, although it is now impossible to trace the lands that were transmitted from Hau Sek Kui to the 5 fongs following the division of his ka estate in 1895, I consider it reasonable to think that at least some of the lands that were registered to Hau Ping Hong, Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung personally came from Hau Sek Kui. 73.Second, the only real property divided by way of fan ka in 1895 was the estate personal to the household of Hau Sek Kui. Lots 666 and 667 in DD 76, Lot 1241 in DD 77 and Lot 358 in DD 84 could not have been part of such estate as they had been registered to the joint names of Shiu Ki Tong and Yi Chak Tong. Although there was a gap of about 12 years between such registration and the fan ka, I have seen no evidence which suggests that the 2 tongs had or might have jointly acquired any land after 1895. In the absence of such evidence, it seems to me more logical on a balance of probabilities to assume that these 4 pieces of land were among the sheung yip coming down from Tun Yan Tong to Tai Chak and Yi Chak, the third category of property dealt with in the fan ka. 74.As for the land holding registered to the sole name of Shiu Ki Tong, I am attracted by Mr Lam’s proposition that such lands were the lands from which sheung kuk (the second category of property dealt with in the fan ka) was to be derived and shared by the 5 fongs in turn. 75.The Plaintiffs’ impromptu speculation, somewhat supported by their expert on Chinese law and custom, Professor Li Guilin, that the 4 fongs of Hau Sum Cheung, Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung had purchased lands from 1895 to 1907 which they then injected into Shiu Ki Tong appears to me to be less plausible. I do not agree with Mr Kenneth Lee and Mrs Dora Chan, Counsel for the Plaintiffs, that there would otherwise be no explanation why Hau Chun Cheung who was entitled to share in the sheung kuk had not been given any land owned by Shiu Ki Tong solely and from which sheung kuk was derived. I think the answer is that we simply do not now know the entity of the property that had been distributed to Hau Chun Cheung. 76.Hence, on balance, it seems to me that Shiu Ki Tong was a pool of the 4 shares in the ka estate distributed to the 4 fongs of Hau Sum Cheung, Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung by way of the fan ka in 1895. Defendants’ case 77.On the other hand, the Defendants contend that :
78.The Defendants counterclaim for declarations that they are members of Tai Chak Tong and Shiu Ki Tong. 79.I do not propose to make any declaration in respect of Tai Chak Tong. First, any such declaration would be academic. It is not disputed that Tai Chak Tong, if it had been formally constituted, would embrace all male descendants from Hau Kam Cheung including the Defendants. There is no record of any property registered to this tong. It had by all accounts long ceased operation. Second, a declaration of the Defendants’ membership of Tai Chak Tong would not in any way assist in the determination of the issue regarding the membership of Shiu Ki Tong. I do not see the latter tong to be a mere sub-set of the former tong minus Hau Sek Kui, without assuming the correctness of the Defendants’ case on the formation of Shiu Ki Tong. 80.The Defendants have since abandoned the propositions as to Chinese customary law mentioned in paragraphs 77(3) and (4) above upon Professor Baker’s advice that :
BURDEN OF PROOF 81.The Plaintiffs seek to put the burden on the Defendants to prove that they are or were members of Shiu Ki Tong. In support, Mr Lee and Mrs Chan quote from Phipson on Evidence, 16th Edition (2005), p.127, paragraph 6-06:
82.With respect, I disagree. I have difficulty with the notion that the Plaintiffs are entitled to the declaration sought unless the Defendants prove that they are not so entitled, which is in effect what is being suggested for the Plaintiffs. Onus is always on a person who asserts a proposition or fact which is not self-evident: Robins v National Trust Company Limited [1927] AC 515 (PC) at 520. The proposition that the Defendants are not and were never members of Shiu Ki Tong, disputed by the Defendants, is not self-evident to me on pleading. 83.The above passage cited by Mr Lee and Mrs Chan goes on to read:
In my opinion, the Plaintiffs cannot hide behind the negative wording in which they phrase the declaration that they are asking for. It could easily be re-phrased into affirmative terms, e.g. that Shiu Ki Tong is comprised of Hau Sum Cheung (Hau Ping Hong), Hau Lun Cheung, Hau Hin Cheung and Hau Chik Cheung and their male descendants only. 84.Seldon v Davidson [1968] 1 WLR 1083, cited by Mr Lee and Mrs Chan, is distinguishable. As explained by the Court of Appeal, the payment of money by the plaintiff to the defendant, admitted by the defendant, prima facie imported an obligation to repay it and it was for the defendant to prove the facts which he alleged showed that it was not repayable. 85.Tang Yau Yi Tong v Tang Mou Shau Tso [1995] 2 HKC 245, also cited by Mr Lee and Mrs Chan, is likewise distinguishable in that the defendant tso in that case asserted beneficial ownership of a 1/3rd share in land registered in the name of the plaintiff tong. The burden always falls upon the party asserting that “the equitable right is not at home with the legal title”: Crisp v Mullings [1976] 2 EGLR 103 (CA), at 103 F-G. 86.In any event, it is unnecessary to resort to the burden of proof in this case. Onus as a determining factor of the whole case can only arise if the tribunal finds the evidence pro and con so evenly balanced that it cannot say that either version of events contended for by the parties satisfies the balance of probabilities. Then, the onus will determine the matter. But if the tribunal can, after hearing and weighing the evidence, come to a determinative conclusion, the onus has nothing to do with it and need not be further considered. See Robins v National Trust Company Limited, op. cit., at 520. 87.In my view, this is a case where the evidence, properly considered on a balance of probabilities, does lead to a determinative conclusion. ANALYSIS 88.In so saying, I have not overlooked the many questions raised (not unreasonably) by Mr Lam for the Defendants:
I fully bear in mind that the evidence available does not provide answers to these questions beyond the realm of speculation. 89.Nor have I lost sight of the lack of direct evidence on the formation and constitution of Shiu Ki Tong. The Plaintiffs and the surviving undisputed members of Shiu Ki Tong were all borne after the material times. Hau Poon Sek admittedly gives evidence from what appears from the available records of Shiu Ki Tong (i.e. the 1918 Rent Book and the Shiu Ki Tong Ledger) and what his father, Hau Tze Lam, had passed on to him. Hau Tze Lam who wrote some of the relevant passages/notes in the 1918 Rent Book and the Shiu Ki Tong Ledger was himself not born until 1909 and could not have had any personal knowledge of the events in question. His additions to the 1918 Rent Book and the Shiu Ki Tong Ledger must, in turn, have been based upon what he had been told. 90.However, the gaps in the evidence must be put in the proper perspective which is that the events with which we are concerned occurred, if they did, a century ago. The loss of documentary records and material witnesses after such a long time is not as startling as it would have been if we had been concerned with more recent happenings. 91.The Court is not required to be satisfied beyond reasonable doubt. Rather it views what is missing against what is available on a balance of probabilities. 92.The relevant passages/notes in the 1918 Rent Book and the Shiu Ki Tong Ledger are not recent fabrications. Some of them were written by Hau Tze Lam. Hau Tze Lam was manager from October 1939 to December 1969. It is reasonable to assume that the passages/notes in handwriting that Hau Poon Sek cannot identify were put in by Hau Tze Lam’s predecessor(s). I can think of no or no credible reason that would cause Hau Tze Lam or his predecessors to put in the family tong records information that they did not believe to be true and correct. 93.More importantly, the general veracity of these passages/notes is reinforced by the available objective and undisputed or indisputable evidence as to the sharing of the management and income and expenses of Shiu Ki Tong:
Such evidence, especially when contrasted to the opposition situation in respect of Suen Mao Tong, is consistent with and admits only the conclusion that the Hau Chun Cheung fong has nothing to do with Shiu Ki Tong. 94.In Luxton v Vines (1952) 85 CLR 352, Dixon, Fullagar and Kitto JJ cited at 358 the following passage from the judgment of the High Court of Australia in Bradshaw v McEwans Pty Ltd (1951) unreported :
In my view, the circumstances proved in the evidence reasonably and definitely favour, on a balance of probabilities and not as a mere matter of conjecture or surmise, the conclusion that the Hau Chun Cheung fong to which the Defendants belong does not belong to Shiu Ki Tong. CONCLUSION 95.For the foregoing reasons, I declare that the Defendants are not, and were never, members or beneficiaries of Shiu Ki Tong. 96.The Plaintiffs ask for and I award them nominal damages (in the sum of HK$10) for the loss of the bargain mentioned in paragraph 58 above. 97.I also make an order nisi that the Defendants should pay the Plaintiffs the costs of this action, including all costs previously reserved (if any) to be taxed if not agreed.
Mr. Kenneth KH Lee & Mrs. Dora KH Chan instructed by Messrs. Rene Hout & Co. for the Plaintiffs Mr Lam Siu Wah, Joseph instructed by Messrs. Li & Partners for the Defendants |
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