Man Leung and Others v. Man Yuet Kwai and Others

HCMP 2270/1998 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO. 2270 OF 1998 ------------------------------   IN THE MATTER of the interest of Fuk Ma（福媽）in Man Shek Chung Wui （文石涌會）   and
IN THE MATTER of the sale proceeds of Lot No. 763 in D.D.99
	and
IN THE MATTER of Order 85, rule 2 and Order 22, rule 8 of the Rules of the High Court
---------------------------

BETWEEN
	MAN LEUNG（文良）	1st Plaintiff
	MAN YING LAM（文英林）	2nd Plaintiff
	MAN PING NAM（文炳南）	3rd Plaintiff
and
	MAN YUET KWAI（文月貴）	1st Defendant
	MAN YUT FU（文月富）	2nd Defendant
	MAN KAM HEI（文金喜）	3rd Defendant
	MAN KAM WAH（文錦華）	4th Defendant
	MAN LOI TSAI（文來仔）	5th Defendant
	MAN HO YIN（文浩然）	6th Defendant
	MAN KWOK LEUNG（文國良）	7th Defendant
----------------------------

Before: Hon G. Lam J in Chambers

Dates of Hearing: 20-22, 25-28 February, 2013

Date of Judgment: 9 April 2013

_______________

J U D G M E N T

_______________

I. BACKGROUND

1.This case concerns the entitlement to certain proceeds of sale of land in the New Territories owned by a “wui” (會), i.e. a customary Chinese unincorporated association.  The name of this association is Man Shek Chung Wui (文石涌會).  I shall refer to it below by its full name or simply as the “Wui”.

2.Man Shek Chung Wui was formed many years ago by members of the Man clan.  It had for a long time been the owner of a very large piece of low-lying land in San Tin district in Yuen Long known as Lot No. 763 in Demarcation District 99.  The Wui together with four “trustees” were already named as the lessee in the relevant Block Government Lease dated 27 March 1905.  As the Wui is not a legal person, legal title to the land was vested in the managers (司理人) as trustees. 

3.The interests of the members of the Wui were defined by reference to units of measurement of quantity of crops called “shek” (石) and “dou” (斗).  Each shek consists of ten dous.  The meaning of these units was explained by Le Pichon JA in Man Ping Nam, the manager of Man Sham Chung Wui v Man Mei Kwai (unreported, CACV 193/2002, 11 December 2002) as follows:

“It is common ground that members of the Wui were entitled to share amongst themselves a certain quantity of crops calculated according to the weight to be derived from cultivation of the land. Since the founding of the Wui, the unit of ‘interest’ of its members is registered or reckoned in ‘shek’ (石) … and ‘dou’ (斗). ‘Shek’ is the traditional Chinese measurement in weight of seeds which is a hundred catties. One ‘shek’ has ten units of ‘dou’. A person having one ‘shek’ … interest in the Wui would be entitled to the crops from a plot on which one ‘shek’ of seeds could be sown and planted.”

4.There were 45 members in the Wui.  Their interests totalled 32 sheks.  Many of the members were tsos (祖) or t’ongs (堂).  One member was itself a wui.  Some members were individuals surnamed “Man”.  There appeared to have been three female members, one of whom was described as “Fuk Ma” (福媽), with an entitlement of five dous, or half a shek.  This represents a one-sixty-fourth interest in the Wui.  (The other two female members were called金喜媽 and文明娘).

5.Although the Wui had been in existence for a very long time, it was only in 1981 that each member of the Wui was issued a booklet called owner’s or member’s book (業主部) (often referred to in the evidence of the witnesses as “land entitlement book” (業主田份部)).  The book specified the relevant member’s share in the Wui.  It also set out the articles of association of the Wui, according to which three managers would be elected to manage the affairs and promote the interests of the Wui.  The Wui would distribute the rent it collected to the members twice a year.  Each member would identify himself as a member of the Wui by production of his land entitlement book in order to collect his share of the rental income.

6.The land of the Wui, i.e. Lot No. 763 in D.D. 99, was sold in 1997.  There is no dispute that the net proceeds should be distributed to the members in proportion to their interests in the Wui. It is common ground that Fuk Ma, whoever she might be, had died.  The dispute that has arisen among the defendants is: who is now entitled to Fuk Ma’s share of the proceeds?

II. THE DEFENDANTS

7.In order to understand the dispute, it is necessary to examine the family relationships among the defendants.

8.While the Man’s is a clan with a long history, for the purposes of these proceedings, it is only necessary to start the genealogy with a person called Man Chiu Fuk (文醮福), also known as Man Sing Toi (文星臺). He lived in San Tin in the New Territories up to the early part of the twentieth century and was apparently the owner of various tracts of land there.

9.Man Chiu Fuk had a wife surnamed Cheng (鄭), but she bore him no son.  He had a “tsip” (妾) surnamed Tang (鄧), who had two sons.  After the first wife died, he took a “tin fong” wife (填房) surnamed To (杜), who gave birth to three sons.  It is unclear how many daughters each of these “wives” had, if any.  I shall refer to the three wives as “Madam Cheng”, “Madam Tang” and “Madam To” respectively.

10.Madam To’s three sons were called Man Chak Lam (文澤林), Man King Shu (文景舒) and Man Chiu Sheung (文超常).  Their descendants in the male line, so far as relevant, may be set out and briefly described as follows:

(1)  Man Chak Lam (文澤林) had one son called Man Hing Chuen (文慶傳), who in turn had two sons, namely, the 1^st and 2^nd defendants in these proceedings.  Man Chak Lam died before Madam To, in about 1955, and Man Hing Chuen, having emigrated to the Netherlands in about 1956 or 1957, died in around 1992.  The 1^st and 2^nd defendants are respectively about 67 and 66 years of age.  The 1^st defendant left Hong Kong in 1962 for Britain and later settled in the Netherlands.  The 2^nd defendant left Hong Kong in 1965 for Britain and later settled in Germany.  They still live in Europe.

(2)  Man King Shu (deceased in 1933) also had only one son, called Man Wai Nin (文位年 or 文偉年), who in turn had three sons.  Man Wai Nin had lived all his life in Hong Kong and died in 1976.  Two of his three sons are parties to these proceedings, namely, the 3^rd and 4^th defendants. The other (and the eldest) son is called Man Kam Tong (文錦堂).  He was not made a defendant to the action but he attended the trial as the representative of the 3^rd defendant, who lives abroad.  Both Man Kam Tong and the 4^th defendant have always lived in Hong Kong.

(3)  Man Chiu Sheung also had only one son, who is the 7^th defendant in these proceedings.  Man Chiu Sheung left Hong Kong for Britain in about 1962 or 1963 and died in 1985.  The 7^th defendant left Hong Kong in 1966 for Britain and settled in the Netherlands in 1970 until 2000 when he went to work in Mainland China.  He returned to live in Hong Kong in 2004.  The 7^th defendant himself has three sons but it is unnecessary to identify them since the interests of that line of the family are adequately represented by him.  He is about 67 years old.

11.Madam Tang’s two sons were called Man On Tai (文安泰) and Man Ping Nam (文炳南) (who was not the 3^rd plaintiff who had the same name).  Their descendants in the male line, so far as relevant, are as follows:

(1)  Man On Tai died in 1924, leaving one son, called Man Shou Tim (文壽添), who in turn had five sons, the eldest one being the 5^th defendant. Man Shou Tim was an opium-smoker who had always lived in Hong Kong and died in 1994.  The 5^th defendant emigrated to the Netherlands in 1969 and returned to Hong Kong in 1997.

(2)  Man Ping Nam had died prior to 1956.  He had one son, called Man Gan Cheung (文根祥), who in turn had four sons, the eldest of whom is the 6^th defendant. Man Gan Cheung went to Britain in the late 1950s and had lived there since, although he came back to Hong Kong from time to time.  He died in 1996.  The 6^th defendant left Hong Kong for Britain in 1968 and returned in 1988.

12.In short, the 1^st, 2^nd, 3^rd, 4^th and 7^th defendants descended from the union between Man Chiu Fuk and Madam To, whereas the 5^th and 6^th defendants descended from his union with Madam Tang.  The dispute in these proceedings lies essentially between these two camps.  The former took the position that Fuk Ma’s share of the proceeds of sale of the Wui’s land should be paid out to the descendants of Madam To’s three sons, per stirpes, whereas the latter contended that the proceeds should be paid out to the descendants of Man Chiu Fuk’s all five sons per stirpes.

III.  HOW THESE PROCEEDINGS AROSE

13.The plaintiffs in these proceedings were the managers of the Wui during the 1990s as registered under section 15 of the New Territories Ordinance (Cap. 97).  The 1^st plaintiff, Man Leung (文良), took office in 1985.  The 2^nd plaintiff, Man Ying Lam (文英林), was appointed in 1991.  The 3^rd plaintiff, Man Ping Nam (文炳南), had served the longest as manager, having been appointed in 1949.

14.In 1997, the plaintiffs decided to sell the land, i.e. Lot No. 763 in Demarcation District 99, which was apparently the Wui’s only substantial asset.  They entered into an agreement to sell it to an independent third party for $336 million with a completion date of 9 December 1997.  The conduct of the managers in relation to this sale was subsequently the subject of litigation between a member of the Wui and the managers, which eventually reached the Court of Final Appeal: see Man Ping Nam & Another v Man Fong Hang (2006) 9 HKCFAR 674.  Nothing in the present action however turns on this.

15.By September and October 1997, the 5^th and 6^th defendants had already made their position known to the managers that the proceeds should be divided among the five branches of Man Chiu Fuk’s family. 

16.Nevertheless, in November 1997, out of the deposit received by the managers, a sum of $500,000 was paid to each of the 1^st, 4^th and 7^th defendants in circumstances I shall describe below.  The sale of the land was completed on 9 December 1997.  According to the managers, after taking into account the expenses of the sale and other provisions, each “shek” in the Wui was equivalent to an entitlement to receive a total of $10,366,130.  Fuk Ma’s five dous would therefore entitle her successors to a share of the sale proceeds in the amount of $5,183,065. 

17.The 5^th and 6^th defendants continued to object to the distribution of the proceeds to the 1^st and 2^nd, 3^rd and 4^th and 7^th defendants in three shares, and contended that the 5^th and 6^th defendants’ families should also each get one share.  In late December 1997, a solicitors’ letter was sent to the managers on their behalves.

18.Because of the conflicting demands of the defendants, the plaintiffs eventually issued an originating summons seeking the determination by the Court of, inter alia, the following questions:

“1. Whether the defendants or any of them and/or any other person(s) are duly appointed lawful personal representatives of the estate of Man To Shi, commonly known as Fuk Ma (福媽), deceased and registered in the Land Entitlement Book (田份簿) of Man Shek Chung Wui (文石涌會) as Fuk Ma (福媽).

2.  To whom should the share of the said estate in the sale proceeds of HK$336,000,000.00 for the sale of that piece of immovable property situate at Lot No. 763 in D. D. 99 in the New Territories, Hong Kong by Man Shek Chung Wui (文石涌會) on 9^th December 1997 be paid”

IV.  THE COURSE OF THESE PROCEEDINGS

19.The originating summons was issued by the plaintiffs on 21 May 1998 against the 1^st to 6^th defendants and amended on 8 September 1998 to add the 7^th defendant.

20.The remainder of the proceeds representing Fuk Ma’s entitlement after deducting the sum of $1,500,000 already paid out, was (together with interest) paid into court in October 1998 in the amount of $3,764,690.40.

21.It is regrettable that following some initial activities and affirmations filed, the proceedings went dormant after 2000.  It was not until a decade later, after a letter was issued by the Court to the parties at the end of 2009 warning them that if the proceedings were abandoned the amount paid into Court would be forfeited, that the parties took steps to proceed with the action again.

22.Following resumption of activity in the action, it transpired that the three plaintiffs had all been removed by the members as managers of the Wui in 2005.  Two managers were appointed in their place, one of whom had since died and the other had resigned in 2008.  The plaintiffs’ legal representatives believed that the position of manager of the Wui had remained vacant since, but a defendant informed them during the trial that new managers had been appointed in 2012.  I was told by the plaintiffs’ representatives that they had immediately written to the new managers enquiring whether they wished to take over the conduct of this action, but no response was received up to the last day of the trial.

23.The plaintiffs were represented by counsel and solicitors at the trial before me.  Counsel informed me that the 3^rd plaintiff had died in May 2011, and that the administrator of his estate had declined to be involved in this action.  Given the nature of the relief sought it is unnecessary for present purposes to decide whether the action had abated in respect of the 3^rd plaintiff by reason of his death.  The 2^nd plaintiff is now about 85 years of age and is apparently demented.  A medical certificate dated May 2009 stated that he was “mentally dull” and “unable to recognize familiar faces, and unable to recall recent or distant memory”.  Counsel also told me that the 1^st plaintiff could no longer be located or contacted by the plaintiffs’ solicitors despite letters and telephone calls to him and even visits to his home.  Notwithstanding these developments, the solicitors had remained on record and counsel informed me that the plaintiffs took a neutral position and declined to call any witness.

24.The trial was in essence fought between the 1^st, 2^nd, 3^rd, 4^th and 7^th defendants on the one hand and the 5^th and 6^th defendants on the other. 

25.None of the defendants was legally represented at the trial although some had filed affirmations prepared by solicitors in the early stage between 1998 and 2000.  Each of them attended the trial, except the 3^rd defendant who had been given leave to be represented by his brother Man Kam Tong.  A solicitor, Man Yau Wai David, a younger brother of the 6^th defendant, was present in court during much of the trial and communicated with the 6^th defendant from time to time.

26.The 1^st, 2^nd, 4^th, 5^th, 6^th and 7^th defendants have each filed affirmations in support of their position.  Each of the defendants was given the opportunity to cross-examine the deponents of the affirmations.

27.The originating summons was issued in English and so were the affirmations filed at the early stage.  The later affirmations were made in Chinese.  The trial was conducted in Chinese.  Most of the defendants (except perhaps the 4^th defendant and his brother Man Kam Tong) had a working knowledge of the English language.  The 6^th defendant said that he was more proficient in English than in Chinese.  Where the relevant documents are in Chinese, I have derived my understanding from the original Chinese version.

V.  THE ISSUES

28.It is necessary to set out the defendants’ respective positions in more detail here in order to identify the real issues between them. 

29.The 1^st, 2^nd, 4^th and 7^th defendants’ position was that Fuk Ma referred to Madam To and that she was the absolute owner of the interest in the Wui during her lifetime.  They said that, as the male descendants of the three sons of Madam To, they were entitled to share her property among themselves in three equal parts.  The 5^th and 6^th defendants and their families had no entitlement because they descended from Madam Tang.

30.In contrast, the 5^th and 6^th defendants contended that Fuk Ma meant the wives of Man Chiu Fuk, and that all and any of his three “wives” were Fuk Ma.  They contended that the wives of Man Chiu Fuk held the interest in the Wui only for their maintenance but otherwise on trust for the male descendants of Man Chiu Fuk.  Since the 5^th and 6^th defendants were the male descendants of Madam Tang who was a Fuk Ma, they were also entitled to inherit the share in the Wui.  As there were five families that descended from two Fuk Mas, the proceeds should be divided into five equal shares.

31.Accordingly, the issue between the two camps of defendants is whether “Fuk Ma” was a reference to Madam To and the interest in the Wui was held by her or, rather, “Fuk Ma” was a reference to all the wives of Man Chiu Fuk including both Madam To and Madam Tang, and the interest in the Wui was held in their names for their maintenance during their lifetimes and thereafter for Man Chiu Fuk’s descendants in the male line.

32.In addition, depending on the answer to the above issue, I need to deal with the devolution of the interest.  This is uncontroversial.  There was no dispute between the parties that if Fuk Ma referred to Madam To and she held the interest herself, then the interest should be inherited by her descendants in the male line (直系男丁), which meant the descendants in the male line of her three sons.  Likewise, there was no dispute that if the factual premise of the 5^th and 6^th defendants was correct then the consequences they contended for should follow.

33.Finally, there is the question of who the proper and lawful representatives of Fuk Ma are.

34.I shall deal with these issues below in turn. But, first, I shall set out chronologically the facts and events as are common ground or as I find them.

VI.  THE FACTS AND EVENTS

The 1912 booklet

35.It is clear that Man Chiu Fuk owned various tracts of land in San Tin.  As stated above, he had three “wives”.  By the 1910s, Madam Cheng had long died, but Madam To and Madam Tang were still alive.  Madam To was in her 40s then.  It is not clear how old Man Chiu Fuk was, but he was probably becoming old and frail then and evidently turned his attention to what should happen to the family after he died.

36.There is evidence that in 1912, Man Chiu Fuk first earmarked some property for Madam To’s use.  A booklet with the title “杜氏所管谷部” was adduced by the 7^th defendant.  He said he found it among his father’s personal effects in the 1970s.  The front page of the booklet also contained the words “壬子年五月立”, indicating it was set up in the fifth month of the year “壬子”.  The year “壬子” corresponds to 1912 plus or minus any multiple of 60, and must in my view mean 1912 when seen in context.  I shall refer to this booklet as the “1912 booklet”.

37.The 1912 booklet set out various parcels of land and the names of the tenants farming them.  These include: Lot No. 2125 in D.D. 102; and Lot Nos. 1241, 1255, 1257, 1246, 1243, 3019, 3023 and 3029 in D.D. 104.  On the last written page it set out the following:

“土名深涌毛種五斗

第4號畊人礼祥

土名石涌毛種五斗

畊人 明公半

兆有半  ”

38.These words refer to a five-dou interest in Shek Chung and a five-dou interest in Sham Chung.  Having regard to all the facts and circumstances, it seems clear to me that these are references to the relevant wuis, i.e. Man Shek Chung Wui and another wui mentioned in the evidence, namely, Man Sham Chung Wui (文深涌會).  In other words, the shares in the wuis were earmarked in the 1912 booklet as being for Madam To’s benefit.  It is not clear whether the shares in these wuis were previously held by Man Chiu Fuk, or whether they were acquired by him for Madam To in 1912.  There is no evidence whether the managers of the wuis at that time recorded the relevant share (if at all) in the name of Man Chiu Fuk or Madam To.

39.The 1^st, 2^nd, 3^rd, 4^th and 7^th defendants understood the 1912 booklet to be a record of land provided by Man Chiu Fuk to Madam To for “吃口”, which they explained was a custom in their village whereby land would be provided, typically by a husband, for the maintenance of his wife after his death.  In this way, the widow’s living would be supported by the rental income from the land.

40.The 5^th and 6^th defendants challenged the authenticity of the 1912 booklet.  In their written final submissions they said that it was a forged document prepared by the 7^th defendant. In their oral submissions they said that if it was not fabricated by the 7^th defendant, then it might have been produced by the 7^th defendant’s father (necessarily many years after 1912) for his own purposes. 

41.I bear in mind that it is for the 7^th defendants who put forward this document to prove it was genuine, and not for the 5^th and 6^th defendants to prove that it was forged: Club Deluxe Ltd v Club Metropolitan Ltd [1995] 2 HKLR 69. 

42.Leaving aside the question whether the 5^th and 6^th defendants should be permitted to call into question the authenticity of the 1912 booklet, as they had not served any notice to challenge the document before the trial, I am satisfied that the document is genuine.  I accept the 7^th defendant’s evidence on how he had come upon this document.  The original of the booklet, which was produced at trial, was fusty and antiquated.  I do not believe the 7^th defendant would have fabricated the booklet.  In my opinion, the 5^th and 6^th defendants have failed to discharge the evidential burden that lay on them to raise a serious issue of forgery by the 7^th defendant or his father.  In fact, their allegation of forgery of the booklet was nothing but a bald assertion.

Division of property in 1915 and 1916

43.There is undisputed evidence that there were two divisions of property made by Man Chiu Fuk in 1915 and 1916 respectively.  On 4 November 1915, Man Chiu Fuk effected a division of property among Madam To and four of his five sons, namely, Man On Tai, Man Chak Lam, Man King Shu and Man Chiu Sheung.  According to the relevant memorial (no. 31099), Madam To was to become “owner” of Lot Nos. 1241, 1255, 1257, 1246, 1243, 3019, 3023 and 3029 in D.D. 104, i.e. all the land in D.D. 104 that was mentioned in the 1912 booklet. 

44.The parcel of land at Lot No. 2125 in D.D. 102, i.e. the remaining lot mentioned in the 1912 booklet, went to Man King Shu – one of the sons of Madam To. 

45.In other words, all the specified parcels of land mentioned in the 1912 booklet were disposed of by that division of property. Incidentally, this also shows that the 1912 booklet was not a record of the division of property itself in 1915 but a record of an earlier provision made for Madam To.  The memorial did not mention the interest in the two wuis. This is not surprising since the relevant land was registered in the name of the trustees of the wuis, and not in the name of Man Chiu Fuk or Madam To.

46.Through the division of property, each of the four sons got a number of lots of land and one or more houses. 

47.On 2 October 1916, Man Chiu Fuk executed a further division of property (registered by memorial no. 34093) in favour of Madam Tang and the remaining son, Man Ping Nam, in respect of various parcels of land.  The son was in addition given a house in San Tin.

Death of Man Chiu Fuk

48.Man Chiu Fuk died prior to 15 November 1920.  An instrument of that date registered in the District Office by memorial stated that, upon his death, his five sons succeeded to a number of specified plots of land.  These appear to have been land owned by Man Chiu Fuk which had not been the subject of any prior division of property.

From Man Chiu Fuk’s death to Madam To’s death

49.It is not disputed that Madam To died in about 1956.  Her two elder sons Man Chak Lam and Man King Shu had died in around 1955 and 1933 respectively.  It is not clear when Madam Tang died though it is common ground she had died before Madam To.

50.There is no direct evidence of who collected and received the rental income in respect of the five-dou share in the Wui (or, for that matter, in Man Sham Chung Wui) during the period from Man Chiu Fuk’s death to Madam To’s death. 

51.The 7^th defendant gave evidence, based partly on what he had heard from his parents subsequently and partly on what he had observed albeit as a 10-year-old child, that when Madam To died, there were insufficient funds for funerary expenses.  Her surviving son, Man Chiu Sheung (i.e. the 7^th defendant’s father) and his nephews, Man Hing Chuen and Man Wai Nin, actually tried to sell her interests in the two wuis.  They succeeded in selling her interest in Man Sham Chung Wui (文深涌會), but the interest in the Wui was eventually not sold and the document was not completed. 

52.The evidence given by the 7^th defendant was corroborated by the documents adduced by him, namely, a Chinese deed for the sale of Madam To’s interest in Man Sham Chung Wui and a draft or incomplete Chinese deed for the sale of her interest in Man Shek Chung Wui.  Copies of these two deeds were exhibited to the 7^th defendant’s affirmation filed in 1999 and the originals were produced by him at trial.

53.The deed of sale of Madam To’s interest in Man Sham Chung Wui, dated July 1956, stated as follows (with punctuation added):

「立斷賣鹹田契人文超常與侄文慶傳文位年等,茲因家慈文杜氏於本年三月十七日身故,欠資應用,叔侄兄弟商議,經大眾同意,將文杜氏遺下土名深涌圍第四號第十四份鹹田種五斗出讓與人。先招親房人等,各不能承後,憑中人文根和引至文潞英家內學說,允肯承買,當面議明價目,時值本港通用銀玖佰圓整,即日立契交易。該欵如數交與超常叔侄手收自用,並即將田推出與文潞英收租管業。此乃雙方情願,明賣明承,一賣百斷,寸角不留,永無收贖。日後如有轇轕等情,概歸賣主同中人理妥,與承主無涉。恐後無憑,特立斷賣契一紙文執為據。

契內深浦圍第四號第十四份為書寫錯誤,查實係

深涌圍第四號第六份,特予註明

立斷賣鹹田契人      文超常 文慶傳      文偉年

中      人

一九五六年七月      日」

In broad terms, this indicates that because there were insufficient funds for use when Madam To died, it was decided that the five-dou interest in Sham Chung would be sold to Man Lo Ying (文潞英) for $900, with Man Chiu Sheung, Man Hing Chuen and Man Wai Nin as the transferors.  The price was paid to them for their own use.

54.The draft deed for the sale of the interest in the Wui read as follows (with punctuation added):

「立斷賣鹹田契人文慶傳文位年等,茲因家祖母文杜氏於本年三月十七日身故,欠資應用,叔侄兄弟商議,經大眾同意,將文杜氏遺下土名石涌圍第___號第___份鹹田伍斗(內分二斗五\二斗五)出讓與人。先招親房人等,各不承買後,由文根祥提議由文超常揭資承受,經當眾議明田價,時值本港通用銀陸佰大圓整,即日立契交易。該欵如數由文超常親手交與文慶傳文位年兄弟收作辦理喪事之用,並即將田推出與文超常管業。此乃雙方情願,明賣明承,一賣百斷,寸角不留,永無收贖。日後如有轇轕等情,概歸賣主理妥,與承主無涉。恐後無憑,特立斷賣契交執為㨿。

立斷賣鹹田契人      文慶全

一九五六年       月      日」

In broad terms, this draft deed says that because there were insufficient funds for use when Madam To died, it was decided, at the suggestion of Man Gan Cheung, that the five-dou interest in Shek Chung would be sold to Man Chiu Sheung for $600, which would be used for Madam To’s funerary expenses, with Man Hing Chuen and Man Wai Nin as the transferors and payees.

55.The 5^th and 6^th defendants asserted that these two documents were forged.  The 1^st and 2^nd defendants also doubted their authenticity.  The 1^st defendant recalled that on the day when his father was to leave Hong Kong in 1956, the 7^th defendant asked him (the 1^st defendant’s father) to sign a deed, which he did.  The 1^st defendant said that the deed signed by his father was a larger piece of paper.  However, I do not think I can safely rely on such evidence which was based on a child’s impression of the size of paper, particularly given the long lapse of time.

56.The 1^st defendant also said he recalled that the name of Man Yuk Tong (文玉堂) appeared in the deed.  The 7^th defendant said that Man Yuk Tong, a well known scribe in the village, was the person who wrote the deed.  Again, I do not find the 1^st defendant’s recollection of this matter to be reliable.

57.The 5^th and 6^th defendants pointed out that the apparent signatures of Man Hing Chuen on the deeds relating to Man Sham Chung Wui and Man Shek Chung Wui respectively were different (the former being 文慶傳 and the latter文慶全).  However, according to the 2^nd defendant’s affirmation dated 25 October 2000, both文慶傳 and 文慶全 were names of his father.  Further, the 4th defendant and Man Kam Tong, who had the opportunity of inspecting the original in court, were certain that the signature of Man Wai Nin (文偉年) on the deed of sale relating to Man Sham Chung Wui was indeed their father’s signature.  Accordingly, they accepted the authenticity of that document.  On this footing, it would appear that Man Wai Nin did not at the time doubt that the two signatures above his own were genuine.

58.Moreover, there is evidence from the 7^th defendant, which I accept, that the deed of sale relating to Man Sham Chung Wui had been acted upon.  The purchaser (文潞英) subsequently transferred the interest back to the 7^th defendant’s family.  A land entitlement book was also issued by the managers of this wui and was kept by the 7^th defendant.  In around 1993, the 7^th defendant (like many other members of that wui) sold the share to a middleman when a developer tried to acquire the land held by Man Sham Chung Wui.  This shows that both the managers of Man Sham Chung Wui and the middleman were satisfied with the 7^th defendant’s title, which in turn suggests that the deed of sale of 1956 had taken effect.  In the 20 years since 1993, no one had challenged the 7^th defendant’s sale of the share in Man Sham Chung Wui and his receipt of the proceeds of sale.

59.The 5^th defendant asserted at trial that Madam To had joined a wui for the elderly, which would pay for members’ funeral expenses when they died.  He therefore questioned the accuracy of the recital in these two deeds which stated there were insufficient funds for funerary expenses when Madam To died.  No detail or supporting evidence had however been adduced by him about any such wui, despite the fact that the deeds had been in evidence since 1999.

60.I accept the two deeds were both documents produced in 1956.  I reject the allegation that they were forged by the 7^th defendant. 

61.Judging from its contents and provenance, the incomplete deed of sale of the share in Man Shek Chung Wui is likely to have been a document drawn up at the initiative of the 7^th defendant’s father.  I am, however, not satisfied that it had been signed by any person. The 7^th defendant himself accepted that the deed was not fully filled in and signed, and was therefore ineffective, and that the sale was not completed. 

62.Nevertheless, the document has evidential value as a unilateral statement originating from the 7^th defendant’s father.

From 1956 to 1970s

63.Who collected the rental income attributable to the share in the Wui after Madam To’s death is in dispute. 

64.The 7^th defendant said that at first his father did collect the income and, later, from about 1962 or 1963 onwards, his mother did, until 1973, when the task fell to Madam Ng Ding Lan (吳定蘭), known to people as 年嬸, who was the wife of Man Wai Nin and the mother of the 3^rd and 4^th defendants and Man Kam Tong.  I shall refer to her as “Madam Ng”. 

65.The 1^st defendant said that his mother collected the rent until 1975 when she emigrated to the Netherlands and handed over the task to Madam Ng.  However, what he recalled was that there were people, whom he understood to be tenants, coming to his home and paying rent to his mother in the sum of $2 or $4 about twice a year.  He did not know whether this related to the Wui or other land.

66.The 6^th defendant said his grandmother (i.e. Man Ping Nam’s wife) at first collected the rent, and then the 1^st defendant’s mother did until she later handed over the task the Madam Ng.  I do not accept this evidence which seems to me to be unreliable multiple hearsay.

67.There is no documentary evidence that corroborates any of these assertions.  On balance however I think that the 7^th defendant’s version is more credible, which I accept, given that his father was the only surviving son of that generation.

From 1970s to 1981

68.There is no dispute that from around mid-1970s, it was Madam Ng who collected the rental income attributable to the share in the Wui.  What Madam Ng did with the income so collected is, however, in dispute. 

69.The 1^st, 2^nd, 3^rd, 4^th and 7^th defendants contended that for as long as Madam Ng had collected the rental income, she had consistently divided it into three equal parts and distributed (i) one part to her own family, (ii) one part to Man Hing Chuen’s family via the 1^st and 2^nd defendants’ sister, Man For Oi (文火愛), and (iii) one part to the 7^th defendant via his sister, Man Suet Mui (文雪梅).  In other words, said these defendants, the rental income was divided among the three families that descended from the three sons of Madam To.

70.This contention is supported by a number of documents: first, a pocket diary for the year 1977 said to have been kept by Madam Ng.  Copies of extracts from it were produced by the 1^st and 2^nd defendants in their affirmations filed in 1998.  They were legally represented then and had apparently obtained such documents from Madam Ng’s family for use in the litigation.  The entries covered rental income collected from the Wui for the period from about 1983 to 1986.  However, the original was not produced, and the 4^th defendant said in his oral evidence that he had not seen this notebook before.

71.Parts of the exhibit are illegible.  So far as I can decipher, the entries in this notebook may be summarised as follows:

72.Secondly, there was another pocket diary for the year 1985 also said to be kept by Madam Ng, with handwritten entries covering the rental income for the period from 1985 to 1997.  Copies of extracts from this diary were exhibited to the affirmation of the 4^th defendant dated 3 July 2012, and he produced the original at trial.  The 4th defendant said that Madam Ng had told him that the notebook recorded the details of the rental income on account of the Fuk Ma share in the Wui.

73.The entries may be summarised as follows:

74.The entries in both notebooks indicated, by and large, that the rental income collected was divided into three equal parts and distributed to the three families who were descendants of Madam To, as described in paragraph 69 above.

75.Thirdly, the 1^st and 2^nd defendants adduced copies of 15 bank transaction advices issued by Hang Seng Bank evidencing, they said, the distribution of one-third of the rental income collected from the Wui by Madam Ng to Man Suet Mui who received it on behalf of the 7^th defendant’s family.  The details of these bank advices are as follows:

76.In his affirmation the 4^th defendant also exhibited copies of five of the above transaction advices, being those dated between March 1995 and March 1997.  The originals of these five advices were produced by the 4^th defendant at trial. 

77.In their affirmation filed in January 2013, the 5^th and 6^th defendants for the first time contended that the diaries and bank advices were false documents produced by the 1^st to 4^th defendants for the purpose of this litigation and in order to mislead the Court.  This is of course a most serious allegation.  Yet the grounds on which it was made are, in my view, flimsy to say the least.

78.First, the 5^th and 6^th defendants raised the question why the 1985 pocket diary was only adduced by the 4^th defendant in his affirmation in July 2012, when the litigation had started in 1998.  I do not think this is a ground for suspicion.  The 3^rd and 4^th defendants were throughout acting in person and wrote letters to the Court in simple terms on 12 January 1999 in response to the originating summons, without filing any evidence.  Thereafter the action went dormant until 2010.  Up to that point the 3^rd and 4^th defendants had played a very minor part in the proceedings.  The 4^th defendant’s affirmation filed in July 2012 was the first affirmation filed by him, no doubt after the parties were encouraged by the Court in case management conferences to finalise the evidence.

79.Moreover, the 4^th defendant gave evidence, which I accept, that the records he produced in these proceedings had been shown to the managers of the Wui at a meeting attended also by the 5^th defendant on about 30 October 1997, which I shall describe further below.

80.Secondly, the 5^th and 6^th defendants asked why there was an entry for the first half of 1986 in each of the 1977 diary and the 1985 diary, which entries were somewhat different from each other.  The figures entered were the same, but the recipients stated were different: see paragraphs 71 and 73 above.  I accept there is a discrepancy.  Unfortunately Madam Ng had died in March 2012 and could not be asked for an explanation.  I do not however think that this discrepancy is sufficient to throw the authenticity of the diaries into doubt. 

81.Thirdly, the 5^th and 6^th defendants allege that the rent for the second half of 1997 was collected by the 5^th defendant, not by Madam Ng.  On that basis they questioned the authenticity of the 1985 diary because it recorded receipt of rent for that period.  I deal with the incident of the collection of rent in 1997 in paragraphs 99 to 106 below.  In the light of my conclusion there that Madam Ng was present when the cheque for that rental distribution was provided by the managers, the premise of the 5^th and 6^th defendants’ point falls away.

82.The original of the 1985 diary was produced at trial by the 4^th defendant and seems to me to be a genuine document.  Moreover, the 4^th defendant also produced five original bank advices.  Such documents are not easy to forge.  These bank advices supported the corresponding entries in the 1985 diary.  There are also signatures and handwriting on the diaries recognised by the 1^st defendant and 7^th defendant respectively as their sisters’.  I accept the 1977 and 1985 diaries as genuine documents and reject the allegation that they had been forged by any of the 1^st to 4^th defendants.

83.There is therefore clear documentary evidence to support the contention of the 1^st, 2^nd, 3^rd, 4^th and 7^th defendants that Madam Ng consistently divided the rental income she collected among the three families.  This is also supported by the 1^st and 2^nd defendants’ evidence that their sister, Man For Oi, had on behalf of their family received a one-third share of the rental income, and the 7^th defendant’s evidence that her sister, Man Suet Mui, had on behalf of his family received another one-third share.

84.For their part, the 5^th and 6^th defendants allege that the rental income collected by Madam Ng from the Wui was used for ancestral grave-sweeping for all five branches of Man Chiu Fuk’s descendants twice a year at Ching Ming and Chung Yeung festivals.  There was, however, upon analysis no real factual basis for this allegation.

85.There was an assertion in the 5^th and 6^th defendants’ affirmation dated 26 March 1999 that “[i]t was decided between the said five families that the [rental income] was insubstantial and should be used for the ancestral homage by the five families”.  When asked in court, however, the 6^th defendant could not identify any real basis for saying there was such a decision.  In my view it would be very surprising, if there were such a decision, that Madam Ng would have made records for dividing the income in the way she did, and that the 5^th and 6^th defendants’ families would not have interfered with her distribution in so many years.

86.It is moreover common ground that income from a tso called Luk Uk Tso (六屋祖) (also known as Man Hoi Sheung Tso (文海常祖)) was used for ancestral grave-sweeping of the five families.  The 5^th and 6^th defendants claimed that such income was not enough.  It is true that the tso’s interest in the Wui was only 3.3 dous, and the defendants’ families together had only a one-sixth share in that tso.  The income from that interest would be very limited.  But the tso had other properties, including at least 24 lots of land in D.D. 98, 102 and 105, as shown by a notice of death and appointment of manager of the tso dated 28 February 1997.  In addition, the tso had a 6.6-dou share in Man Sham Chung Wui, until it was sold in 1997.

87.In his affirmation made in October 2000, the 2^nd defendant said that all the income of Luk Uk Tso was used to pay for all the expenses of grave-sweeping.  In response, in their affirmation made in December 2000, the 5^th and 6^th defendants simply denied it, while admitting that some of the expenses of grave-sweeping came from Luk Uk Tso.

88.Despite the fact that the 6^th defendant was a manager of Luk Uk Tso between 1997 and 2002 and the 5^th defendant was a manager in 2009 and thus should have had some knowledge of its affairs, they had not submitted any details or documentary evidence to explain how the income of Luk Uk Tso was consistently insufficient to pay for the expenses of ancestral grave-sweeping.

89.As admitted by the 5^th defendant in cross-examination, there were also other pieces of land owned by Man Chiu Fuk and therefore co-owned by the five families.

90.Further, some of the graves visited were those of the forebears of Man Chiu Fuk and the responsibility of grave-sweeping would fall on the descendants of both Man Chiu Fuk and his brother Man Chiu Wun, who had three sons.  This is why the witnesses referred in their evidence sometimes to grave-sweeping for the five families and sometimes to grave-sweeping for the eight families.  The 5^th and 6^th defendants gave no evidence of whether Man Chiu Wun’s descendants contributed to the expenses.

91.On the evidence, I find that the rental income had been collected by Madam Ng since around mid 1970s and consistently divided into three equal parts (without deduction) and distributed to the three families who descended from the three sons of Madam To respectively.

92.Moreover, according to the 4^th defendant, Madam Ng had told him that the income was derived from Fuk Ma’s share in the Wui, using the name “Fuk Ma”, as she always did, to refer to Madam To.  I accept this evidence, which in my view significantly supports the other evidence pointing to the conclusion that the share in the Wui had belonged to Madam To. Madam Ng was already part of the family when Madam To died in 1956 (her eldest son, Man Kam Tong, having been born in 1952).  Further, her husband, Man Wai Nin, had always lived in Hong Kong and died only in 1976.  Madam Ng’s understanding would have been based on her own knowledge as well as her husband’s knowledge of the facts.

The land entitlement book issued in 1981

93.Although Madam To and the other wives of Man Chiu Fuk had long been deceased, the land entitlement book in question was issued in the name of “Fuk Ma”. 

94.There is no earlier document of the Wui put in evidence setting out the identity of the members.  There is no evidence of who wrote down the name “Fuk Ma” on the land entitlement book.  Nor is there any evidence of when Fuk Ma’s share in the Wui first existed.  It is not clear how the relevant member was designated or called by the managers before 1981.

95.Nevertheless, it is telling that in paragraph 1 of the originating summons quoted in paragraph 18 above, the plaintiffs’ solicitors used the phrase “Man To Shi [i.e. 文杜氏], commonly known as Fuk Ma (福媽), deceased”.  This was no doubt based on their instructions, which reflected the managers’ understanding at the time.

Application for approval of sale of Wui’s property in 1992

96.In 1992, the members of the Wui resolved to sell the land (i.e. Lot No. 763 in D.D. 99).  An application dated 31 March 1992 was made to the District Office for approval of the intended sale.  The application stated that all the members of the Wui consented to the application, and had annexed to it a list of the members.  The relevant member was named as “Fuk Ma” (福媽).

97.There is no evidence of what exactly happened after this application and why the sale of land only took place five years later, in 1997.  What is likely however is that the proposed sale of the Wui’s land at a price in the region of hundreds of millions of dollars was a major event in the clan and was widely known and discussed among the clansmen.

Notebook of 1992

98.The notebook used by the managers of the Wui since around 1992 to record the names and contact details of the members specified the name of Madam Ng in a “remarks” column.  At the back of the notebook, in the pages for addresses, Man Kam Tong’s name, address and telephone number were put down for the member “Fuk Ma”.

Collection of rent in August 1997

99.A matter relied upon by the 5^th and 6^th defendants is that in August 1997, the 3^rd plaintiff issued a cheque to the 5^th defendant in the amount of $2,451 representing the second distribution of rental income in 1997 for Fuk Ma.  The 5^th defendant’s explanation was that on around 3 August 1997, he saw the 3^rd plaintiff in the village.  The 3^rd plaintiff knew he was entitled to the Fuk Ma share, and so gave him the cheque, leaving the 5^th defendant to fill in the payee’s name.

100.In cross-examination, Man Kam Tong (eldest son of Madam Ng) put to the 5^th defendant that when Madam Ng went to collect rent from the 3^rd plaintiff, the 5^th defendant was there and offered to take the cheque for $2,451 and to cash it for her. Madam Ng agreed and the 3^rd plaintiff made a record of receipt of rent in the land entitlement book that Madam Ng had brought with her.  But the 5^th defendant only gave Madam Ng $2,000 back claiming that he would keep the balance because he had a one-fifth share.

101.Man Kam Tong did not make an affirmation and these details were therefore not in evidence.  However, there was a statement signed by Madam Ng and dated 15 October 2000 exhibited to the second affirmation of the 2^nd defendant of October 2000, in which she stated that one-fifth of the rent was taken away from her by the 5^th defendant when she collected the second distribution of rent in 1997, and that she had explained this to the managers at the meeting held on around 30 October 1997 (as referred to in paragraph 112 below).  In their affirmation made in December 2000, the 5^th and 6^th defendants “specifically denied” the relevant paragraph in the 2^nd defendant’s affirmation, but gave no further response.

102.I do not accept the 5^th defendant’s evidence on this incident.  I think his version is inherently improbable.  In particular, I do not think that the 3^rd plaintiff would have given him the cheque without the land entitlement book being produced.  Article 4 of the articles of association of the Wui stipulated that all members must collect their rent by production of the land entitlement book. Moreover, the 5^th defendant was evasive when cross-examined about this incident and when asked whether there was such an encounter with Madam Ng, he repeatedly said “I don’t know”, though he finally denied there was such an incident.

103.Nor is there any explanation why the 3^rd plaintiff was able to make a record of the payment in the land entitlement book, which was in Madam Ng’s possession, if he had simply paid the 5^th defendant directly in the absence of Madam Ng.

104.In the 5^th and 6^th defendants’ affirmation made in March 1999, in explaining why the 5^th defendant collected the cheque in August 1997, it was stated that “it was the turn of the 5^th defendant to give homage to the Ancestors of the five families”.  When asked, however, the 5^th defendant was unable to explain when or how he used the sum of $2,451 or to show any record relating to its use.

105.Furthermore, it transpired from a minute produced at trial that it was only in October 1997 that the five families agreed to take turns annually to organise ancestral grave-sweeping.  The 5^th defendant’s turn would not arrive until 2000.  The assertion that the 5^th defendant took the cheque in August 1997 because it was his turn to organise grave-sweeping seems to me to be untenable.

106.It was also accepted by the 5^th defendant that Luk Uk Tso sold its 6.6-dou share in Man Sham Chung Wui in 1997 and arrangements were made by the five families so that, after the proceeds were divided, there remained a common fund of $250,000 from which to pay future grave-sweeping expenses.  When asked why he needed the cheque for $2,451 for grave-sweeping when there was a fund of $250,000, the 5^th defendant could not give any sensible answer.  Overall, I prefer Madam Ng’s version of this incident.

Sale of land in 1997

107.In the summer of 1997, the managers of the Wui entered into a provisional agreement to sell the land.  The formal agreement was entered into on 25 August 1997.

108.Substantial sums representing the deposit and part payment were received the managers after these agreements.  The managers duly notified the owners to collect their share of the deposit and part payment.  Fuk Ma being one of the owners, she was also entitled to a proportional share of the payment.

109.On 5 September 1997, the 5^th and 6^th defendants caused an unsigned letter to be issued to the plaintiffs, stating that the interest in the Wui held in the name of Fuk Ma was left by Man Chiu Fuk and should be distributed among the five male lines of descendants from Man Chiu Fuk, that is to say, the five lines descending from the three sons of Madam To and the two sons of Madam Tang respectively.

110.This was followed by a meeting of the parties on around 19 October 1997.  The managers gave the 5^th and 6^th defendants about a fortnight to produce evidence to show that they had an entitlement to the Fuk Ma share.

111.It appears that the 5^th and 6^th defendants wrote a further letter dated 28 October 1997 to the managers but no copy of this letter could now be found.

112.On around 30 October 1997, there was another meeting attended by, among others, the 4^th defendant and Madam Ng, the 1^st defendant, the 5^th defendant and a younger brother of his, and the 3^rd plaintiff possibly together with the 2^nd plaintiff, to discuss the entitlement to Fuk Ma’s share.  The 4^th defendant gave evidence, which I accept, that the 3^rd plaintiff told the 5^th defendant that he should produce evidence of his entitlement to the Fuk Ma share within five days.

113.On about 6 November 1997, the 5^th and 6^th defendants not having reverted with evidence to their satisfaction, the managers issued cheques in favour of the 2^nd, 4^th and 7^th defendants in the sum of $500,000 each.  It would appear therefore that the managers were, at that point, satisfied that the proceeds should be divided among the three families of Madam To’s sons, for otherwise they would not have paid out such large sums of money to them.

114.After completion, on 18 December 1997, the managers gave notice asking members of the Wui to collect their share of the balance of the proceeds of sale.  Soon afterwards, the managers received a letter dated 23 December 1997 from the 5^th and 6^th defendants which stated that the managers should not pay out Fuk Ma’s share to anyone and that legal proceedings might be required to resolve the dispute between the parties. 

115.This was followed by a letter of Messrs Leung Kin & Co, solicitors then retained by the 5^th and 6^th defendants, dated 24 December 1997, which asked the managers to pay the 5^th and 6^th defendants’ share to them within 7 days.  On the same day, the same solicitors also wrote to the 1^st, 4^th and 7^th defendants in similar terms.

116.Faced with conflicting demands from the defendants, the managers issued the originating summons in May 1998.

VII. WHO WAS THE MEMBER OF THE WUI

117.Based on the relevant evidence and findings set out above, I now deal with the issues referred to in paragraphs 31 to 33 above. The first question is whether Fuk Ma, as a member of the Wui, was a reference to all the wives of Man Chiu Fuk or only Madam To. 

118.The 5^th and 6^th defendants argued, focussing on the land entitlement book which bore the name “Fuk Ma”, that the share in the Wui “belonged” to all three wives of Man Chiu Fuk.  They said that all three of his wives were known as Fuk Ma. 

119.The other defendants accepted that it was customary in their village to refer to a man’s wife using the man’s first name with the addition of a suffix such as Ma (媽), Leung (娘), Shum (嬸) or Po (婆).  So if a man was named Fuk (such as Man Chiu Fuk), his wife could well be called Fuk Ma (福媽) by the villagers.  They also accepted that in theory all and each of his wives could be called Fuk Ma.

120.So, the 5^th and 6^th defendants argued, although Madam To was referred to by the later generations of the family as Fuk Ma, the share in the Wui did not belong to her but to all three wives of Man Chiu Fuk.

121.In my view, however, taking into account the 1912 booklet and the deeds of sale of 1956, there can be little doubt that the relevant share in the Wui was held by Madam To.  The 1912 booklet clearly indicated that a five-dou interest in each of Shek Chung and Sham Chung was allocated to Madam To.  In the context that was clearly a reference to the two wuis.  Of the 45 names of the members of the Wui, there is no suggestion that any name, other than Fuk Ma, could represent Madam To.

122.The deeds in 1956 expressly recited that Madam To had left five-dou shares in the two wuis.  Even the 5^th and 6^th defendants had not suggested the deeds could have been about some other property; instead, their contention was that the deeds were forged, which contention I reject as explained above.

123.Further, I consider it unlikely that all three wives of Man Chiu Fuk would have been made joint members of the Wui.  First, it was only after Madam Cheng had died that Madam To was taken as a tin fong wife.  So the notion that they were joint members of the Wui with the name Fuk Ma was highly improbable.  Secondly, if there were in fact two or three persons jointly entitled, it is in my view improbable that the managers would have used a single name such as Fuk Ma to denote all of them.

124.Moreover, the deeds of 1956 were evidence that the interests in the wuis were at the disposal of Madam To’s surviving son, Man Chiu Sheung, and the respective sons of her two other sons.  The deed relating to Man Sham Chung Wui specified Man Chiu Sheung, Man Hing Chuen and Man Wai Nin as the assignors or transferors and were signed by them.  This is quite inconsistent with any suggestion that the share was common property of all three wives and that it reverted to Man Chiu Fuk’s estate upon her death. Any asset in Man Chiu Fuk’s estate, as is common ground, would be property to which all five families descending from his five sons were entitled.

125.The unexecuted deed relating to Man Shek Chung Wui specified Man Hing Chuen and Man Wai Nin as the assignors or transferors, omitting Man Chiu Sheung, but the reason seems to me to be that Man Chiu Sheung was intended to be the assignee or transferee in that transaction.  In any event this is also inconsistent with any suggestion that the share in the Wui had become property in Man Chiu Fuk’s estate.

126.The receipt and use of the income from the Wui since the mid-1970s, as explained in paragraphs 68 to 92 above, also tends to show that the share in the Wui belonged to Madam To and, after her death, to her descendants in the male line.  As I have found, the rental income was collected and consistently divided by Madam Ng into three equal parts which were distributed to the three families of Madam To’s three sons.

127.The 5^th and 6^th defendants contend that they and their families had always assumed that the money distributed from the Wui on account of the Fuk Ma share was used for ancestral grave-sweeping of all five branches of Man Chiu Fuk’s descendants.  I reject this assertion for the reasons already explained in paragraphs 84 to 91 above.

128.The 5^th defendant’s father, Man Shou Tim, and the 6^th defendant’s father, Man Gan Cheung, had lived until 1994 and 1996 respectively. 

129.It is not in dispute that Man Gan Cheung was the manager of Luk Uk Tso at all material times until his death in 1996, and that this tso was also a member of the Wui with an interest of 3.3 dous. Man Gan Cheung would have represented Luk Uk Tso in respect of its interest in the Wui.  Man Gan Cheung would have known that the Wui had resolved to sell the land in 1992.

130.Up to his death in 1994, Man Shou Tim was an opium-smoker and was by all accounts often badly in need of money.  If he considered he had a share in Fuk Ma’s interest in the Wui, he would have asked Madam Ng for money out of the income she collected.

131.It seems to me significant that they took no step to claim any interest in the income derived from the five-dou interest in the Wui held in the name of Fuk Ma.

132.There is also evidence, which I accept, that the 6^th defendant’s father, Man Gan Cheung, had a very close relationship with the 3^rd plaintiff, Man Ping Nam, who had been a manager of the Wui since 1949.  The evidence shows that Man Ping Nam had never heard that the 5^th defendant’s father (Man Shou Tim) and the 6^th defendant’s father (Man Gan Cheung) had any interest in the Fuk Ma share in the Wui.

133.In my view, the preponderance of facts and evidence support the conclusion that the name “Fuk Ma” in which the interest in the Wui was held was a reference to Madam To, not a reference to all three wives of Man Chiu Fuk. 

134.In their affirmation of March 1999, the 5^th and 6^th defendants relied upon the fact that certain properties were transferred to all five families after the death of Man Chiu Fuk, namely, Lot No. 1440 in D.D. 104, Lot No. 737 in D.D. 102 and Lot No. 2309 in D.D. 102.  I do not think this is relevant.  All three properties were mentioned in the memorial of succession to property dated 15 November 1920 in favour of all five sons.  They were plainly land left by Man Chiu Fuk to which all five sons had succeeded.

135.The 5^th and 6^th defendants also relied in their affirmation of December 2000 upon the fact that the proceeds of sale of certain properties had previously been divided into five equal shares and distributed to the five families.  In my view this provides no support to their contention.  The documents relied upon were acknowledgment by representatives of the five families that the one-sixth share in Luk Uk Tso and income derived therefrom should be divided equally among the five families. This is of no consequence for there had been no dispute whatever that the interest in Luk Uk Tso was common property among the five families.

136.At trial the 6^th defendant further relied upon the records obtained from the Land Registry in respect of Lot No. 2952 in D.D. 104, which referred to Madam To being removed as trustee in 1954.  I am unable to see how this supports the 5^th and 6^th defendants’ case.  As shown by the relevant memorials (nos. 132597 and 85070), Madam To was simply being removed from trusteeship, on account of her old age, in respect of that piece of land, to which Man Wai Nin had succeeded as a minor in 1933.

137.In their third affirmation dated 18 January 2013, the 5^th and 6^th defendants claimed that Madam Ng had told the 5^th defendant and the 6^th defendant’s mother that they (i.e. the 5^th and 6^th defendants’ families) also had a share in Fuk Ma’s interest in the Wui.  I am unable to accept this evidence.  First, there was no hint of any such incident in the two previous affirmations of the 5^th and 6^th defendants, which were filed by solicitors acting for them.  It only emerged for the first time in their late affirmation in 2013 after Madam Ng had passed away in 2012.  When asked why he did not refer to this earlier, the 5^th defendant could not provide a sensible answer. Secondly, the 6^th defendant’s mother is alive and there is no explanation why she cannot give evidence or even a statement herself of what Madam Ng had allegedly told her.

138.I reject the 5^th and 6^th defendants’ contention.  I find that the interest in the Wui was held by Madam To herself, not by the three wives.  Madam To was the member of the Wui. When the land entitlement book was issued in 1981, the name Fuk Ma was used to denote Madam To.

139.The 5^th and 6^th defendants did not contend that, if the relevant member of the Wui was Madam To (as opposed to all the wives of Man Chiu Fuk), she had no more than a life interest.  Nevertheless I should say that I am satisfied that Madam To held that interest absolutely. Although the title of the 1912 booklet (i.e. “杜氏所管谷部”) used the word “管” which can be translated as “control”, it seems to me that, whatever might have been the position in 1912, it is more likely than not that Man Chiu Fuk had intended that, with the division of property in 1915, the share in the Wui should belong to Madam To absolutely.

140.As mentioned in paragraph 43 above, a division of property was registered in November 1915 in respect of various parcels of land.  Each of the specific parcels of land mentioned in the 1912 booklet was allocated.  All of them were given to Madam To, with one exception which was given to her son Man King Shu.  It seems to me probable that the remaining assets mentioned in the 1912 booklet, namely, the shares in the two wuis, were also disposed of so that the 1912 booklet was in effect superseded.  Coupled with the other available evidence described above, it seems clear to me that the shares had, by November 1915 at the latest, become the absolute property of Madam To.

141.I also think that the 1^st, 2^nd, 3^rd, 4^th and 7^th defendants were justified in saying that had the interest in the Wui become part of the estate of Man Chiu Fuk for the benefit of all his male descendants, the relevant member would have been regarded by the managers as Man Chiu Fuk Tso (文醮福祖).  That did not happen.  Instead, the shares were treated as property of which Madam To’s surviving son and grandsons were entitled to dispose.

VIII. DEVOLUTION OF THE INTEREST

142.On the basis that the interest in the Wui was held absolutely by Madam To, in the name of Fuk Ma, the next question that arises is how that interest devolved upon her death.

143.It is clear that such devolution was governed by Chinese customary law, either because the interest in the Wui fell within the meaning of “land” in the New Territories Ordinance (Cap 97) and section 17 thereof (which has been re-numbered section 13) then required the Court to apply Chinese custom and customary right in proceedings relating to New Territories land (see Tang Kai-chung v Tang Chik-shang [1970] HKLR 276, 294-295; Liu Ying Lan v Liu Tung Yiu [2003] 3 HKLRD 249), or because Madam To died before the coming into effect of the Intestates’ Estates Ordinance (Cap 73), and the inheritance to any leaseholds forming part of her estate was therefore governed by Chinese law and custom (see Ho Tsz Tsun v Ho Au Shi (1915) 10 HKLR 69).  In this context Chinese law and custom means Qing law and custom in force in this part of China in 1843 as varied by local custom: see Re Wong Choi Ho, deceased [1969] HKLR 391, 393-395; Lai Hay On v Commissioner of Rating and Valuation [2010] 3 HKLRD 286 at para. 36.

144.It is therefore unnecessary to consider the effect of the New Territories Land (Exemption) Ordinance (Cap 452) enacted in 1994 (in particular whether it has retrospective effect subject to the transitional provisions contained in section 12 of that Ordinance) or the applicability of those transitional provisions in this case.

145.Although Chinese law and custom, in cases where it is applicable, is applied in Hong Kong as a matter of local law rather than foreign law, the practice has been for the court to receive and act on expert evidence on such law and custom.  This practice has been described as “perhaps anomalous”, but “pragmatic and well established”: per Bokhary PJ in Suen Toi Lee v Yau Yee Ping appointed by Order to represent the Estate of Chu Lee alias Chu Lan Fan, deceased (2001) 4 HKCFAR 474 at para. 34.

146.In the present case, however, the 5^th and 6^th defendants did not dispute that if the share in the Wui belonged to Madam To during her lifetime, then upon her death it devolved to her three sons or their descendants in the male line.  Perhaps for that reason, despite the Court had given directions for expert evidence, no expert report was adduced by any party. 

147.I have consulted a number of authorities and texts but have not been able to find any guidance on Chinese law and custom as regards the devolution of a widow’s property – property which had been given absolutely to her by inter vivos transfer and not property left in her care by succession.  In these circumstances I consider that I should proceed on the basis of what was effectively common ground between the parties.

148.Accordingly, when Madam To died, the successors to her property would in principle be her three sons in equal shares.  But since two of her sons had predeceased her, her interest should pass to her surviving son (Man Chiu Sheung) and the sons of the sons who had predeceased her, i.e. Man Hing Chuen and Man Wai Nin, per stirpes.

149.The question of how the interest further devolved from them when they in turn died was not argued or discussed before me, it being assumed that it similarly devolved along the male line.  It is unnecessary for me to make a determination of that question.

IX.  PROPER REPRESENTATIVES

150.It is well established that the administration and representation of an estate is governed by ordinary Hong Kong law even where its distribution is governed by Chinese customary law: In the Estate of Chak Chiu Hang (1925) 20 HKLR 1; Ho Cheng Shi v Ho Sau Lam (1920) 15 HKLR 35. 

151.Section 17 of the New Territories Ordinance (Cap 97), which provides for a special mechanism of succession to property by registration with the Land Office, has been repealed in 1994.  This leaves grant of representation as the only proper form of succession.  While section 5 of the New Territories Land (Exemption) Ordinance (Cap 452) provides that the Probate and Administration Ordinance (Cap 10), inter alia, shall not apply to proceedings in respect of or in relation to land in the New Territories held in the name of any clan, family or t’ong, I do not think that it excludes the application of that Ordinance to an estate merely because the estate consists of a share in a wui, even though wui is a form of clan holding of land.

152.No probate or letters of administration having been granted in respect of Madam To’s estate, there is no one who can properly claim the proceeds from the managers or give a good receipt to them.  It will be up to Madam To’s descendants, in particular the 1^st, 2^nd, 3^rd, 4^th and 7^th defendant and Man Kam Tong, to take steps for letters of administration to be granted in respect of Madam To’s estate.  Once appointed, the administrators may apply to the Court for the proceeds of sale to be paid out to them for proper administration and distribution.

X. CONCLUSION AND ORDERS

153.In conclusion, I am satisfied for the reasons set out above that the interest in the Wui was held by Madam To absolutely during her lifetime and had upon her death devolved to Man Chiu Sheung, Man Hing Chuen and Man Wai Nin per stirpes in three equal parts.  None of the defendants is as yet a lawful personal representative of Madam To.  The money paid into court by the managers and now standing to the credit of this action should be paid out to the personal representatives of Madam To after a grant is made, to be administered and distributed in accordance with this judgment.

154.There will be a declaration and order accordingly.

155.Any parties who wish to make submissions regarding the costs of these proceedings should do so by way of written submissions to be lodged with the Court within 35 days of this judgment, after which I shall hand down a further decision on costs.

	(G. Lam)
	Judge of the Court of First Instance
	High Court

Miss Rachel Po, instructed by David Y.Y. Fung & Co., for the Plaintiffs

All the Defendants, except the 3^rd defendant, appeared in person, present.  The 3^rd Defendant was represented by his brother, Mr Man Kam Tong.