Tang Yau Yi Tong and Another v. Tang Mou Shau Tso and Others

IN THE COURT OF APPEAL

1995, No. 138
(Civil)

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Coram: Bokhary, Godfrey and Liu, JJ.A. in Court

Date of Hearing: 23, 24 and 25 April 1996

Date of Handing Down: 3 May 1996

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J U D G M E N T

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Bokhary, J.A.:

1. I will invite my brother Liu to give the first judgment.

Liu, J.A.:

2. At the commencement of this appeal, the court is invited to set aside the order of Cheung, J on terms. Counsel are unable to assure this court that a rehearing of these proceedings would bring any real comfort to the parties. Consensus is finally reached that this appeal should be prosecuted to its conclusion. Counsel are ready and willing to overlook technicalities and proceed with, what may be described as, the framed issues. In the light of concessions and/or clarifications by counsel, subject to the reservation that issue 4 was not raised at the trial, a list of issues was submitted and commented upon by both counsel. The list is designed for ready resolution of the core issues. This is, therefore, a rather unusual appeal from the determinations of Cheung, J who, by the various relief granted, in effect allowed the plaintiffs to sell land of their tong without the consent and free from the intervention of the defendants.

3. The list of issues as submitted is as follows:

"1. Whether, on the pleading, the Plaintiffs' only claim lies in damages for slander of title and the reliefs for declaration and injunction are just incidental to the claim on slander of title?

2. Whether, in law, a tso or the focal ancestor of that tso could be part of a tong?

3. Whether, in law, there could be and was a resulting trust of any interest in properties of (1st-named plaintiff) Tong in favour of the (1st-named defendant) Tso?

4. Alternatively, whether, on fact, any interest in the (1st-named plaintiff) Tong properties was dedicated to the (1st-named defendant) Tso or the focal ancestor of that Tso?

5. On the common fact that money had been spent for ancestral hall (in Tai Po),

(a) whether, on the fact, the payment was made by (Tang) Cheung Chun Yuen or the (1st-named defendant) Tso.

(b) whether, in law and on fact, the payment was for the land as well?

(c) whether, on fact the (Tang Cheung Chun) Yuen and the (1st-named defendant) Tso had identical membership and if so, whether it is open to the Defendants to rely on payments made by the (Tang Cheung Chun) Yuen to resist the Plaintiffs' claim?

6. On the Respondents' Notice, whether, in law and on fact, the Defendants are estopped from challenging the approval to sell given by Tang Chung Yeung and Tang Chuen Kei (sons of "Kam Tin" Tang Wai Tong) who were authorised to administer the Defendants' interest?"

4. I shall call Tang Cheung Chun Yuen "the YUEN", and 1st-named defendant Tang Mou Shau Tso "the TSO" and the 1st-named plaintiff Tang Yau Yi Tong "the TONG".

5. It is convenient to note the comments of counsel on these six issues with those by Mr Chan, leading counsel for the defendants, set out in para. (i) below and those by Mr Wong, counsel for the plaintiffs, in para. (ii):

Issue 1

(i) Although the trial judge overlooked this issue, the answer to it is yes;

(ii) No such claim was raised, but technicality would not be taken advantage of.

Issue 2

(i) Yes;

(ii) It would depend on the context of the judgment and in that context, the judge is correct.

Issue 3

(i) Yes;

(ii) In the context of the judgment, no.

Issue 4

(i) The judge provided no answer to this issue because of his holding that it was impossible for a Tso to be in a Tong but otherwise yes;

(ii) It was not raised at the trial and it is a red herring.

Issue 5(a)

(i) Payment was made by the YUEN on behalf of the TSO;

(ii) Payment was made by the YUEN for itself.

Issue 5(b)

(i) Yes, but as a matter of law it is not quite material;

(ii) No.

Issue 5(c)

(i) Yes, but the trial judge did not provide a direct answer; however he must have implicitly answered this question yes. The answer to the second limb of this issue is also yes;

(ii) The answers to both limbs are no

Issue 6

(i) No, and in any case it was not pleaded although this point was canvassed before the trial judge;

(ii) Yes.

6. I turn first to the facts. A piece of property comprising various lots in DD No. 6, Tai Po is registered in the TONG. The current manager of the TONG is the second-named plaintiff, Tang Tsan Wa. For the purpose of this appeal, a tso, a tong or a yuen is to be understood in the context of the New Territories Ordinance and Chinese customs and customary rights affecting land in the New Territories. See s. 13 the New Territories Ordinance; Tang Kai Chung & Another v. Tang Chik Shang & Others, [1970] HKLR 276 at pp. 280-1 & 306; Chu Tak Hing & Others v. Chu Chan Cheung Kiu & Others, [1968] HKLR 542. Manager, trustee and Sze lei are synonymous. As for a tso, it is worth noting the following passage in "The Pattern of Life in the New Territories in 1898" by J.W. Hayes in the Journal of the Hong Kong Branch of the Royal Asiatic Society, 2 (1962) 75 at p. 80: "The Tso is the more closely connected with the clan. Anyone can form a tong but a tso is definitely a clan affair, and of the nature of a serious ancestral trust." In a tso, the emphasis is placed on an ancestor, not the founder. The said lots in DD No. 6 were acquired by Tang Wai Tong, Tang Kei Mong and Tang Fan Shan in 1926, 1929 and 1930 respectively. Save for Lot No. 950 which was purchased by two of the three in 1926 at public auction, the other lots were acquired by the three jointly. The TONG was established as early as 1928, in which the lots were vested in 1940. It was claimed that Mr Tang Wai Tong in Kam Tin (the Kam Tin Tang), Mr Tang Fan Shan in Tai Po (the Tai Po Tang) and Mr Tang Kei Mong in Dong Guan (the Dong Guan Tang) caused their respective clans to be represented in the TONG and that in 1928, acting as manager and on behalf of the TSO the Kam Tin Tang agreed with the Tai Po Tang and Dong Guan Tang to pool together and build an ancestral hall in Tai Po in the said property in DD No. 6 for, in his case, worshipping his ancestor, the late Tang Mau Shau.

7. An ancestral hall was accordingly erected in Tai Po in 1928, and the defendants' case is that members of the TSO were attending regularly at the Tai Po ancestral hall in veneration of their focal ancestor, Tang Mou Shau. What transpired was that from the accounts of the YUEN, $5,231 was recorded as having been withdrawn in 1928 towards the erection of the Tai Po ancestral hall and $938 in 1940 towards its repairs. In Kam Tin, the YUEN had its ancestral hall in which Tang Mou Shau, the defendants' alleged focal ancestor for the TSO, was also the focal ancestor for worship. A son of the Kam Tin Tang, Tang Yuk Kwan (DW4), testified that before the war he visited the Tai Po ancestral hall to worship Tang Mau Shau when he was 17, i.e. some 56 years ago. The Tai Po ancestral hall collapsed during the Japanese occupation.

8. At a meeting held on 24 November 1965, two other sons of the Kam Tin Tang, Tang Chung Yeung and Tang Chuen Kei agreed "to hold" the Tai Po ancestral hall property in the name of their father for the TSO and made a declaration to the effect that it belonged to the TSO. On 27 July 1981, these two sons requested the Tai Po District Office "to register (their) names as members" of the TONG with respect to their "one-third property rights in all the property" in the TONG. This 1981 request may be said to be in conflict with the 1965 declaration, but no evidence was led to explain or otherwise elaborate on this 1981 request or the circumstances in which it was made.

9. Before us, the plaintiffs are prepared to accept the personal defendants as members of the YUEN. It is conceded that one of its purposes is to worship the focal ancestor Tang Mou Shau. But no one has come forward with the claim that Tang Mou Shau was ever worshipped at Tai Po by the Tangs in Kam Tin as members of the YUEN. Leading counsel for the plaintiffs argues that the YUEN is an entity different from the TSO and that therefore the 1928 $5,231 and the 1940 $938 recorded in its accounts could not have been contributions emanating from the TSO. It is submitted that consequently the YUEN's trust for the worship of the focal ancestor Tang Mou Shau in Kam Tin had not been overtaken, replaced or supplemented by a second trust for worshipping the same focal ancestor Tang Mou Shau in Tai Po. Benefits derived from these contributions must have been, so it is contended, brought under and subsumed in the trust for worshipping the same focal ancestor in the YUEN in Kam Tin. There was, so it is sought to argue, no dedication of the Tai Po property to the TSO for worshipping the late Tang Mau Shau. No reasons are advanced as to why two separately managed trusts for the same or a similar purpose could not co-exist. In the result, so counsel submits, because the personal defendants claim in these proceedings as members of the TSO, they have no locus standi; it is also urged upon this court that they should have filed their claim in their capacity of members of the YUEN. It is a little surprising that whilst both counsel are prepared to ignore technicalities, this stance is now being maintained by the plaintiffs as a sheet-anchor of this appeal. Counsel for the plaintiffs further submits that in any case the 1928 and 1940 contributions as reflected in the YUEN's ledger related exclusively to the structure of the ancestral hall which collapsed during the war and that no interest in the land had been acquired.

10. The YUEN and the TSO are decidedly different entities although they have identical membership, a fact "hotly disputed" by the plaintiffs. The YUEN and the TSO appear in different public records kept by the District Office. They maintain separate accounts and are managed by different managers, trustees or Sze leis. Receipts from and payments to the TSO and YUEN were also recorded in their respective Income and Expenditure Ledgers.

11. On 3 October 1991, the manager of the TONG, the 2nd-named plaintiff, gave notice of intention to sell the property in question in observance of the usual formality under the New Territories Ordinance. The TSO and the personal defendants objected to the sale. It is the plaintiffs' case that as claimed members of the TSO, the personal defendants have no interest in the property proposed to be sold and that they are not entitled so to object to the proposed sale. The same argument is run against the TSO. The judge decided in the plaintiffs' favour, and this is the defendants' appeal. However, the appeal has been reconstructed to avoid literalism and legalism in pursuit of a practical solution, and it is on this basis that we entertain it.

12. Lastly, it is contended that in 1965 the personal defendants and their TSO entrusted their interests to the two sons of the Kam Tin Tang, Tang Chung Yuen and Tang Chuen Kei, who consented to the proposed sale on 3 October 1991 and that the defendants cannot resile from the given consent.

13. I need not deal with issue 1. Counsel agree to disregard any procedural shortfall so as to enable the real issues to be resolved. Further, the contended deficiency is not incurable by amendment. Out of this list of issues, this appeal falls to be decided on, in the main, three questions, namely (1) whether a tso may join a tong or whether by so joining a tong in sharing an ancestral hall, the incidents of a tso would breach a fundamental rule of the ancestral worshipping trust that only direct male descendants of the focal ancestor may become its members, (2) whether by dedication or otherwise, a share of the Tai Po ancestral hall and land became vested in the TSO and (3) whether sufficient interest is held by members of the 1st-named defendant TSO, the Tang Mou Shau Tso, for objecting to the proposed sale.

14. The trial judge was unimpressed by the defendants' assertion that the TSO had, by its contributions through the YUEN, gained a foothold in the TONG. One tong may buy into another tong provided the in-coming tong is also qualified to participate in its trust. "A component lineage could withdraw from the clan by selling its share to other member lineage or perhaps to a previously excluded lineage. The clan may recruit new member lineage". Extended Kinship in the Traditional City by Dr Hugh Baker in C.W. Skinner (ed), The City in Late Imperial China 499 at p. 501. It would seem, therefore, unobjectionable for a tso, a trust in veneration of an ancestor, to buy into a tong formed for worshipping purposes. The judge held that "under customary law, the TSO could not be a beneficiary of the TONG". The judge's rejection of this "tso in tong" concept was primarily for the reason that with this TSO holding beneficial interest in the TONG, direct male descendants of brothers of the "originator" would be let in to share the benefits of the TONG, thus infringing the trite Chinese custom of admitting no other persons than direct male descendants of the focal ancestor as beneficiaries in a trust for ancestral worship. In this case, in the defendants' "TSO in TONG" claim with Tang Mau Shau as the focal ancestor, brothers of the founder, the Kam Tin Tang, and their respective direct male descendants would be entitled to interest in such part of the TONG as contributed to by the TSO. That is because as members of succeeding generations, the direct male descendants of the brothers as well as those of the Kam Tin Tang are both direct descendants of the 22nd generation focal ancestor Tang Mau Shau. In the defendants' case, no member paid respect to anyone who was not a focal ancestor of his worshipping trust. There is no breach. What Chinese custom prohibits is the admission as members of other direct male descendants than those of the ancestor nominated (the focal ancestor) in a tso or tong. In other words, membership of a tso or tong is confined to the direct male descendant of its focal ancestor. That is sheer common sense because no one but the direct male descendants of a focal ancestor would revere and honour him. Direct male descendants of a brother of the focal ancestor or "originator", as the judge put it, would not worship him and would be excluded from membership. In this case, the introduction of the TSO to the TONG by contributions from the TSO, albeit reflected in accounts of the YUEN, was for the purpose of worshipping Tang Mau Shau as the focal ancestor, two generations above the Kam Tin Tang who was the later 24th generation. The "originator" or focal ancestor in the defendants' case is Tang Mau Shau, and the direct male descendants of the Kam Tin Tang and his brothers are both direct male descendants of the earlier 22nd generation Tang Mau Shau. It was only when the judge rejected Tang Mau Shau as the focal ancestor in the defendants' assertion and held the founder Kam Tin Tang himself as the originator that he found himself in membership difficulty with direct male descendants of the brothers of the Kam Tin Tang in the TONG. In other words, with the focal ancestor in the defendants' assertion, the TSO in the TONG would not lead to such a generation disarray. Hence, there should be all the more reason for the judge to lend support to the defendants' assertion which would not give rise to any difficulty. His analysis was attempted on an erroneous premise. Moreover, it is now readily accepted that the focal ancestor for the Tangs in the alleged TSO's portion of the ancestral hall at Tai Po is Tang Mau Shau, not Tang Wai Tong.

15. Was there a dedication of the share of property in Tai Po to the TSO? According to the defendants, Tang Mon Shau used aliases, including (Tang) Cheung Chun, (Tang) Tsung Shan. From the public records in the Yuen Long District Office, the YUEN (Tang Cheung Chun Yuen) had been established before 1948, and prior to 1948 the Kam Tin Tang (Tang Wai Tong) was its manager. A yuen is a tong. That had been a practice well set in before the war. There were many yuens registered in Tai Po. See the expert evidence of Mr Cheung Shui-wing in Chu Tak-hing & Others v. Chu Chan Cheung-kiu & Others, supra. at p. 571. According to entries in The Income and Expenditure Ledger of the YUEN, in 1928 $5,231 was paid out for the construction of the Tang's Tai Po ancestral hall (Tsz Tong) and in 1940 $938 was paid for its repair. When the TSO, with its payments reflected in the ledger of the YUEN, took a share in the Tai Po ancestral hall, it must have acquired interest in the land on which it was erected. There is no evidence that the ancestral hall was an illegal structure and a Tsz Tong signifies perpetuity. It is inconceivable that the 1928 $5,231 contribution by the TSO was not intended to and did not acquire an interest in land. After all, the purchase price of the land for the Tsz Tong was then a mere few hundred dollars.

16. The defendants objected to the proposed sale on 30 October 1991, and a list of members of the TSO and the YUEN was later produced to the District Office on 7 November 1991. The list set out identical common membership for the TSO and the YUEN. The list is susceptible to the usual criticisms for post-dispute information, but what matters most about it is whether or not the information is true. The list was one supplied to the authority in the District Office, which is not known to be uninformed of these matters and has the power and means to investigate. There is no evidence that the list is inaccurate. In the evidence adduced before the judge are found indicia of identical membership in the TSO and the YUEN: it is conceded before us that one of the purposes of the YUEN was to worship Tang Mau Sau. It was, so it is now acknowledged, for the very same purpose that the said contributions were made towards the Tai Po ancestral hall. Save for their submission that the worshipping trust has remained with the YUEN, the plaintiffs no longer dispute the intention to worship the common focal ancestor Tang Mau Shau at the Tai Po ancestral hall. It is incongruous for different comprehensive groups to share a common focal ancestor. The TSO and YUEN have since, 13 March 1994, had even identical managers and all six of them support the claim that the TSO is a part owner of the properties in the TONG. No one has come forward to testify that the membership in the TSO and the YUEN is different. It is virtually undeniable that membership in the TSO and the YUEN is the same. With identity of membership in the YUEN and the TSO and in the absence of any claim made to the Tai Po ancestral hall property by the Tang clan in their capacity of members of the YUEN, the source from which the 1928 and 1940 payments were derived loses much of its importance. Save for the unexplained dubious 1981 request of the two sons of the Kam Tin Tang, members of the YUEN have made no claim to the Tai Po property. Only the TSO members lay claim to it. No member of the YUEN has ever claimed that the said contributions were not made for the TSO or that they were not made with the TSO monies. The plaintiffs' submissions are wholly speculative and ill-founded. The evidence is compelling that members of the TSO had bought into the TONG through contributions reflected in the accounts of the same group in the YUEN.

17. The YUEN and the TSO are separate entities with different managers and separate registrations in the District Office. Appointments of new managers for the YUEN made no reference to a share in the Tai Po property in the TONG. The 1941 $980 mortgage redemption of the TONG property was also not reflected in the records of the YUEN. One reason is simply that the TSO's share in the property no longer concerns the YUEN and that the YUEN could not be reasonably expected to continue to deal with such a share in its records. As separate entities, rent was received by the YUEN from the TSO in 1948, and payments were made by the YUEN to the TSO from 1921 to 1924. No inference of the YUEN retaining worshipping of Tang Mau Sau at Tai Po could be properly drawn. The clear intention to dedicate the Tai Po property to the TSO in veneration of Tang Mau Shau has not been displaced by these so-called omissions. It is quite unnecessary to deal with the possibility of a resulting trust in favour of the TSO, but in passing I must say that it is conceptually difficult to comprehend how a resulting Chinese worshipping trust could have arisen from a mere purchase of property with money of the TSO.

18. Lastly, I pass then to issue 6. In the witness statement of Tang Wing Tung, a manager of the YUEN and the TSO, he related to a meeting of members of the TSO in 1965, at which Tang Chung Yeung and Tang Chuen Kei, the said two sons of the Kam Tin Tang were asked to take over the TSO share in the TONG and make their joint declaration in favour of the TSO. In Tang Wai Fook's statement, he described this 1965 meeting as one attended by five members "and other senior members of the" TSO. It was resolved at the meeting that Tang Chung Yeung and Tang Chuen Kei "were holding their interest in the said lands for and on behalf of the" TSO. On 3 October 1991, the said Tang Chung Yeung and Tang Chuen Kei gave their consent to the Tai Po District Officer for selling the properties in question. The 1965 meeting of TSO has not been shown to have been attended by all its members or their accredited representatives. The resolution at the meeting, if properly carried, merely authorised "holding" of the lands, not dealing with them. Lastly, we know not in what capacity Tang Chung Yeung and Tang Chuen Kei consented to the sale in 1991. Did they purport to be members of the TSO personally, representatives of the TSO or administrators of the estate of the late Kam Tin Tang Wai Tong? The defendants cannot be bound by such a consent.

19. The personal defendants are, as it is now conceded by the plaintiffs, beneficially interested in the property in question but only as members of the YUEN and in such "correct" capacity admittedly they are or would have been entitled to object to the proposed sale. Counsel submits that since the personal defendants claim exclusively as members of the TSO, in that capacity their claim must fail. The plaintiffs have been cooperative enough to be prepared to ignore all technicalities, and apparently in the end they are left with little alternative but to seize upon a much less worthy pleading point in resisting this appeal. What stands out in this case is that only members of the TSO, not the YUEN claim to be entitled to object to the proposed sale, and it is highly speculative of counsel to submit that members of the YUEN, albeit with identical membership, are and should have been made proper parties.

20. Do the personal defendants hold sufficient interest to object to the proposed sale? For the reasons I have given, the personal defendants as members of the TSO are entitled to beneficial interest in the property in question and to object to the proposed sale.

21. The TONG and the TSO are not legal entities. The parties require to be amended by striking out the TONG and the TSO as the 1st-named plaintiff and the 1st-named defendant. The capacity in which Tang Tsan Wa (Manager) and the personal defendants sue would also need to be amended: Tang Tsan Wa to sue as manager of the TONG and the personal defendants as members of the TSO. I would allow the appeal and set aside the order of the judge. The Plaintiff's claim is therefore dismissed and a declaration made in terms of 1A of the Amended Notice of Appeal that these personal defendants as members of the TSO are entitled to beneficial interest in the suit property. I would further declare that Tang Tsan Wa suing as manager of the TONG is not entitled to sell the suit property without the consent of the personal defendants. I would order that the names of the 1st-named plaintiff and the 1st-named defendant be struck out and that the respective capacity of the 2nd-named plaintiff and the personal defendants be accordingly amended. I would make an order nisi that the personal defendants are to have costs here and below.

Godfrey, J.A.:

Introduction

22. This is an appeal from an order made by Cheung, J. on 26 April 1995, in an action about a dilapidated ancestral hall at Tai Po, New Territories ("the property") held in the name of "Tang Yau Yi Tong" ("the Tong"). In 1991 the manager of the Tong, the 2nd plaintiff Tang Tsan Wa, sought to sell the property to a developer; but the 2nd to 22nd defendants ("the defendants"), the members of a Tso called "Tang Mou Shau Tso" ("the Tso"), objected, contending that, as such members, they had an interest in the property and so were entitled to object (as they did) to the proposed sale. The manager of the Tong, being of the opinion that this claim of right was unjustified, instituted the proceedings before the judge, which the judge resolved in favour of the manager, declaring, by his order, that the manager was entitled to dispose of the property without the consent of the defendants. The defendants now appeal to this court.

Background

23. The ancestral hall was built between 1928 and 1930 on land provided for the purpose by Tang Kei Mong and a man called Tang Wai Tong. In 1940, this and other land was formally assigned to the Tong (the other land was provided by Tang Wai Tong together with Tang Kei Mong and Tang Fan Shan). The whole exercise was a joint venture; it is quite clear from the evidence (although the judge seems to have doubted it) that this ancestral hall was built for the veneration of ancestors of (1) Tang Kei Mong (representing the Tangs of Dongguan); (2) Tang Fan Shan (representing the Tangs of Tai Po); and (3) Tang Wai Tong (representing the Tangs of Kam Tin). The hall contains separate ancestral tablets maintained by the Dongguan Tangs, the Tai Po Tangs and the Kam Tin Tangs respectively. No problem arises so far as the Dongguan Tangs and the Tai Po Tangs are concerned. The problem concerns the Kam Tin Tangs. It is, again, quite clear from the evidence that the relevant ancestor to be venerated, in the case of the Kam Tin Tangs, was one Tang Mou Shau. The question is whether the members of the Tso, as such, are the persons entitled to the share of the Kam Tin Tangs in the property. The real contest in the case is between them and the personal representatives of Tang Wai Tong, although the latter are not parties.

The case for the defendants as members of the Tso

24. It is quite clear from the evidence (though, again, the judge seems to have doubted it) that HK$5,231 (a very substantial sum in those days) was put up by the Kam Tin Tangs for the construction of the ancestral hall. It was, however, provided, not by the members of the Tso as such, but by the members of a Yuen called the Cheung Chun Yuen, which, although not itself the same as the Tso, was also dedicated to the veneration of Tang Mou Shau and whose members were therefore the same as those of the Tso. (In 1940, the Yuen made a further contribution, of HK$938, for repairs to the hall.) Back in 1928, Tang Wai Tong was himself the manager of the Tso. When he died, two of his sons, Tang Chung Yeung and Tang Chuen Kei, took over from him, it being accepted by them, at a meeting of the Tso held in 1965, that Tang Wai Tong's interest in the ancestral hall was not his beneficially, but belonged to the Tso (this was recorded in writing signed by Tang Chung Yeung and Tang Chuen Kei on 24 November 1965).

The case for Tang Wai Tong's personal representatives

25. The 2nd plaintiff, the manager of the Tong, argued the case for Tang Wai Tong's personal representatives before us. Mr. Ronny Wong, Q.C., for the manager of the Tong, emphasised that the contribution, HK$5,231, to the cost of construction of the ancestral hall to which I have referred was made by the Cheung Chun Yuen and not by the Tso. He emphasised that the claim of right made by the defendants was made by them as members of the Tso, not by them as members of the Cheung Chun Yuen (or in any other capacity). He contended that Tang Wai Tong was involved in the construction of the ancestral hall for the (future) veneration of himself, not for the veneration of any earlier ancestor, and that, accordingly, only his descendants were entitled to the interest of the Kam Tin Tangs in the property, not the descendants of Tang Mou Shau (certainly not if claiming as members of the Tso).

Conclusion

26. The arguments of Mr. Ronny Wong, Q.C. appear to have found favour with the judge. I must say that I am, for my part, of a contrary opinion. The judge seems to me to have misapprehended the evidence (comprehensively reviewed in the judgment of Liu, J.A., which I have had the advantage of reading in draft), which was overwhelmingly in favour of acceptance of the claim of the descendants of Tang Mou Shau (represented by the Tso) and overwhelmingly against the personal claim of the estate of Tang Wai Tong. I would allow this appeal; set aside the order of the judge; strike out the named 1st plaintiff and the named 1st defendant (neither of which are legal entities); declare that the 2nd plaintiff, as manager of the Tong, is not entitled to sell the property without the consent of the defendants; and order that the costs of the defendants, here and below, be taxed and paid by the 2nd plaintiff to the defendants.

Bokhary, J.A.:

27. I, too, would allow the appeal. And I agree with the orders proposed by my brother Liu. So the appeal is allowed so as to make those orders.

Representation:

Mr Edward Chan, QC & Mr C.Y. Li inst'd by Leung Kin & Co. for appellants

Mr Ronny Wong, Q.C. & Mr K Chow inst'd by Raymond Hung & Co. for respondents