Tang Kun Nin, Tony Manager of Hung Shing Temple v. Cheng Wai Fong and Others
Read the full judgment text of HCA 87/2011 on BabelCite. This High Court CFI judgment was delivered on 12 March 2014.
2. I set out below a summary of the plaintiff’s claim according to the Statement of Claim filed on 21 February 2011 and the Reply and Defence to Counterclaim filed on 12 August 2011.
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HCA 87/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 87 OF 2011 ________________________
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________________________ I. INTRODUCTION 1.There is no dispute that:
II. PLAINTIFF’S CLAIM 2.I set out below a summary of the plaintiff’s claim according to the Statement of Claim filed on 21 February 2011 and the Reply and Defence to Counterclaim filed on 12 August 2011. 3.The Temple was built in/about 1763 for the villagers of four yeuk (約, “Yeuk”), ie Loi Tung (萊洞), Lung Yeuk Tau (龍躍頭), Lin Ma Hang (蓮麻坑) and Tan Chuk Hang (丹竹坑) of about 18 villages (“Four Yeuk”), for holding ancestral/religious worships, public events, and social gatherings. The Four Yeuk formed an unincorporated association and named themselves On Leung Yeuk. 4.The Temple was at the centre of the Four Yeuk, and was visited by the public and the villagers of the Four Yeuk. At first, Tang Yui Shan from Leung Yeuk Tau was the only manager in charge of the management/affairs of On Leung Yeuk. He failed to properly manage On Leung Yeuk, so the Four Yeuk decided that each Yeuk would nominate a representative to act as Manager, and the four co-Managers would jointly administer and manage the affairs of On Leung Yeuk. 5.The Temple was/is surrounded by four pieces of land owned by various villagers of the Four Yeuk (“Four Lots”), ie Lot No 1468, Lot No 2105,the Remaining Portion of Section B of Lot No 2106 andLot No 2107all of DD76 (“Lot 1468, Lot 2105, Lot 2106SBRP and Lot 2107”)identified in the schedule to the relevant government lease. The first owners of the Four Lots were:
6.In/about early 1900, a nun Leung Chi (梁智) alias Leung A Chi (梁亞智) (“Leung”) brought with her some children nuns to beg (化緣) at the villages of the Four Yeuk. Since the Temple needed a keeper and Leung (and her children nuns) seemed to have nowhere to go, the ancestors of the Four Yeuk (“Ancestors”) nominated her as keeper of the Temple, and allowed her to keep worship monies for her living expenses and the Temple’s daily expenses. She would ask the Managers for monies if the Temple needed repairs or to hold events. 7.Over time, the number of villagers who visited the Temple increased, and the Templerequired monies for expansion and maintenance. The Ancestors decided to acquire more land for the Temple’s expansion as well as more agricultural landfor letting purpose to generate income to meet the Temple’s needs. They solicited the owners of the Four Lots to sell/donate land to the Temple, and the Temple thereby obtained or (with worship monies) bought the Four Lots. For easy management and avoidance of possible conflict amongst the Four Yeuk, the Managers caused/permitted/authorised Leung to hold the Four Lots as legal owner on trust for the Temple, and further allowed her to accept rental income from leasing the agricultural lands of the Four Lots (“Rental Income”) on trust for the Temple. 8.Ah Pui (張杏培, “Pui”), Tai Kam Chau (戴金就, “Tai”), Cheung Tai (張齊, “Cheung”) and D1 (who was the youngest) were Leung’s disciples, and Pui was also master of Tai and Cheung. With the Managers’ consent/authority/permission, Pui helped Leung keep books and receive monies paid by the Managers to the Temple. In/about the 1960s, after Leung passed away, Tai and Pui with the Managers’ consent/ authority/permission succeeded Leung to become keepers to manage the Temple. Pui accepted the Rental Income on trust for the Temple, and she would ask the Managers for monies should the Temple required finance for repairs or to hold events. 9.Tai left the Temple in/about the early 1970s. With the Managers’ consent/authority/permission,D1 became the sole keeper to manage the Temple and to accept Rental Income on trust for the Temple. She would ask the Managers if the Temple needed monies for repairs or to hold events. The income generated by the Temple and the Four Lots were insufficient to maintain D1’s living expenses between 1991 and 2009, so at her request the Managers paid her a monthly salary of $2,000 (from 1991 to 1995) which was later increased to $2,500 (from 1995 to 2009).In short, the Managers entrusted and/or paid D1 to keep/maintain the Temple and the Four Lots, and with theirconsent/authority/ permission she became a trustee holding the Four Lots on trust for the Temple. 10.The ownership history of the Four Lots was as follows:
By reason of the above matters, the plaintiff claimed that D1 owed various fiduciary duties to the Temple as particularised in the Statement of Claim. 11.In/about end of November 2009, the government granted the Managers $800,000 to renovate the Temple (“Works”). But on/about 4 January 2011, when their contractor attempted to carry out the Works, they were denied access to the Temple by D1, D2 and D3(collectively, “Ds”).D2 and D3 claimed they were the owners of Lots 1468, 2105 and 2106SBRP (“Remaining Lots”). On 15 January 2011, aninterlocutory injunction was granted against the Ds restraining them from inter alia interference with the Works and reasonable enjoyment of the Temple. On 21 January 2011, the Ds gave undertakings to similar effect until judgment or further order. 12.On/about 9 November 2007, in breach of trust and fiduciary duties owed to the Temple and without the Managers’knowledge/consent/permission/authority, D1 wrongfully sold/assigned the Remaining Lots to and accepted monies from D2 and D3 at gross undervalue such as tomisappropriate trust property without consent/approval/knowledge/authority, or alternatively the Ds conspired together with the predominant intention to injure the Temple and/or to use unlawful means against the Temple so that they became constructive trustees in respect of all monies and properties received in relation to such transactions. The sale/purchase of the Remaining Lots at gross undervalue caused the Inland Revenue Department (“IRD”) to assessstamp duty, which the Ds did not pay, and the IRD charged and encumbered the Remaining Lots for payment of the same. 13.It was claimed that D2 and D3 all along knew and/or had actual/constructive/imputed knowledge that D1 held the Remaining Lots on trust for the Temple. The Temple further claimed to have suffered loss and damage, and sought inter alia the following reliefs:
14.It was averred in the Answers to the Request for Further and Better Particulars of the Statement of Claim filed on 3 June 2011 (“FBP Answers”) that the Temple, On Leung Yeuk, Tang Wing Shing Tong, Hung Shing Kung and Tang Chuk Hang Yeuk respectively was not a clan, family or t’ong within the meaning of sections 15-16 of the NTO. 15.In the FBP Answers, it was further averred that the former co-Managers of the Temple were Choi Cho Yau (蔡祖有, “Choi”), Tang Chong Tai, Tang Tim Shui and Ip Kat Ming. But according to the Old Appointment, one of the former co-Managers was Lo instead of Choi. I note, however, that Choi signed P’s Articles on behalf of Tang Chuk Hang.[2] III. Ds’ PLEADINGS 16.The Ds were formerly represented by the same firm of solicitors who filed a Defence and Counterclaim on their behalf on 17 June 2011. On 18 September 2013, I granted leave for Ds’ solicitors to cease to act for D1 after her death. On 13 November 2013, the D1’s solicitors filed the Certificate of Service of Order for Withdrawal of Solicitors from the Record, and formally ceased to act for D1. 17.The Ds denied the plaintiff’s claim, but for the purpose of the summonses discussed below, it is unnecessary to deal with all aspects of their substantive causes of defence. I set out their relevant pleas and averments below:
IV. PLAINTIFF’S REPLY AND DEFENCE TO COUNTERCLAIM 18.In the Reply and Defence to Counterclaim, the plaintiff denied the four co-Managers of the Temple each had only ¼ or limited power/authority to represent the Temple or that sections 13 and 15-16 of the NTO applied to the present action. In any event, the plaintiff claimed the other three surviving co-Managers had authorised/consented/approved the present action. It is unnecessary for the purpose of the summonses discussed below to refer to other matters pleaded in the Reply and Defence to Counterclaim. V. PROCEDURAL HISTORY 19.On 8 November 2012, Master Hui granted leave for the plaintiff to set the present action down for trial with a pre-trial review (“PTR”) before the trial judge. The trial was due to commence on 10 December 2013, and a PTR hearing was scheduled to be heard on 18 September 2013 (“1st PTR”). At the 1st PTR, I raised a number of matters with the parties. 20.First, although D1 passed away in May 2013 and D1’s solicitors ceased to act for her pursuant to leave granted on 18 September 2013. But the plaintiff did not take any step under Order 15 rule 7 of the Rules of the High Court (“RHC”) to proceed against D1’s estate (as defendant) or under Order 15 rule 9 of the RHC in respect of D1’s estate (as plaintiff by counterclaim). Such omission was not without significance since the plaintiff sought substantive reliefs against D1 in the present action. It was therefore doubtful whether the trial could proceed as scheduled. 21.Secondly, I queried the status of the Temple. If it were not a clan, family or t’ong within the meaning of sections 15-16 of the NTO as suggested in the FBP Answers, question immediately arose as to its legal capacity. If, say, it were an unincorporated association, it would be doubtful whether the Temple could sue by Tang KN as its Manager without a representation order. At the 1st PTR, Ms Lau, counsel for the plaintiff, agreed that this had to be clarified. 22.Thirdly, it was plain from the Ds’ pleadings that they challenged the plaintiff’s authority to sue in the name of “[Tang KN], Manager of [the Temple]”. But instead of taking out a striking out application, the Ds merely raised such challenge by way of defence. The parties did not raise such issue with any of the learned masters who dealt with the pre-trial case management, and the present action was set down for trial without resolving such question. 23.The legal principles in this respect are trite. “If the court becomes aware that the plaintiff is incapable of giving a retainer, it will strike out at the trial without any formal application …… But if the defendant desires to question the authority to sue in the plaintiff’s name, he must apply to strike out the plaintiff’s name at an early stage; he cannot by his defence dispute the authority, nor can he do so at the trial ……”[3] 24.At the 1st PTR, I drew the parties’ attention to Kammy Town Limited v Super Glory Corporation Limited[4] in which A Cheung J (as he then was) said as follows:
25.The above principles were summarised by the Court of Appeal in Liquidation Committee of Foshan Hongda Development Ltd v East Legend Investment Ltd as follows:[5]
26.It was therefore inappropriate to leave the disputed issue of the plaintiff’s authority to sue to the then upcoming trial. That being the case, given this unresolved dispute, there was serious doubt as to whether the trial could still proceed on the scheduled dates. 27.As a result of the above matters, Ms Lau and Mr Ng, counsel for D2 and D3, required time to take instructions, and I adjourned the PTR hearing to 7 October 2013 (“2nd PTR”). 28.On 3 October 2013, the plaintiff issued a summons for (a) leave to amend the Reply and Defence to Counterclaim as per the draft annexed thereto (“1st Reply Draft”), and (b) an order that the present action be carried on between the plaintiff and the Ds “without having to require the personal representative of [D1] to join in despite the death of [D1] in May 2013” (“P’s 1st Summons”). 29.By the 1stReply Draft, the plaintiff (a) averred that the Temple was/is a tso/t’ong, but the Ds could not pray in aid sections 15-16 of the NTO, and (b) did not admit On Leung Yeuk, Tang Wing Shing Tong and Hung Shing Kung were t’ongs and put the Ds to strict proof that sections 15-16 of the NTO applied. It was further averred that the 1stReply Draft would “overwrite” all FBP Answers to the limited extent that “the Temple was not a clan, family or t’ong within the meaning of Sections 15 and 16 of [the NTO]”. 30.On 3 October 2013, the plaintiff filed the affirmation of his solicitor Kwong Ting Chung Simon (“Kwong”) in support of P’s 1st Summons. It was said that the suggested amendments, which hinged on legal arguments, would not prejudice the Ds. It was further said that no one was willing to be the personal representative of D1’s estate because she (a) was a nun who never married and had no children/siblings/parents, (b) died intestate with no personal representative appointed to manage her estate, and (c) had meagre/nil earnings and no savings apart from her monthly salary of $2,500 and some worship monies generated by the Temple. Kwong claimed that given the Ds were jointly and severally liable, leave should be granted for the plaintiff to carry on the present action without any application under Order 15 rule 7 of the RHC. 31.I was not persuaded it would be appropriate to do so. I bear in mind that the plaintiff sought substantive reliefs against D1, and there was no information before me as to what steps had been taken to ascertain whether anyone was interested in D1’s estate (eg any search made at the Probate Registry), and if there was none, whether the Official Solicitor had been approached for assistance. Further investigative steps were plainly required. Ms Lau therefore applied, and I granted leave, for withdrawal of the application in paragraph 28(b) above. 32.At the 2nd PTR, I raised further queries on the proposed amendments in the 1stReply Draft. First, for proper amendment to be made in respect of the FBP Answers, application should have been made for leave to file and serve amended FBP Answers with the amendments marked up in red, and not by a general plea in the proposed Amended Reply and Defence to Counterclaim to “overwrite” relevant (but unidentified) parts of the FBP Answers. Secondly, the proposed amendments still did not make clear whether the Temple was/is a tso or a t’ong. So at the 2nd PTR, I granted leave for the plaintiff to amend P’s 1st Summons to deal with these matters. 33.Thirdly, the proposed amendments did not bring enlightenment as to why the Ds could not pray in aid sections 15-16 of the NTO when on the plaintiff’s case the Temple was/is either a tso or a t’ong. I therefore directed the plaintiff to either (a) file/serve affirmation in support of the amended P’s 1st Summons yet to be filed or (b) lodge/serve a written statement of law, whichever would be appropriate, on the proposed amendments. I also granted the following consequential directions, ie (i) leave to D2 and D3 to file/serve affirmation in opposition, failing which they shall inform the plaintiff in writing whether they would or would not oppose the amended P’s 1stSummons yet to be filed, and (b) leave to the plaintiff to file/serve affirmation in reply (if any). 34.Pursuant thereto, the plaintiff filed the amended P’s 1st Summons on 16 October 2013 (“Amended P’s 1st Summons”) with no changes to the 1stReply Draft but with proposed amendments to the FBP Answers in the manner marked in red as per the draft annexed thereto (“FBP Draft”). In contra-distinction to the 1st Reply Draft, the plaintiff in the FBP Draft averred that the Temple, On Leung Yeuk, Tang Wing Shing Tong, Hung Shing Kung and Tan Chuk Hang Yeuk were t’ongs within the meaning of sections 15-16 of the NTO. 35.On the same day, the plaintiff filed Kwong’s 2nd affirmation in support of the Amended P’s 1st Summons (“Kwong 2nd Aff”). The Kwong 2nd Aff confirmed that the Temple was registered with the Home Affairs Department as a t’ong under section 15 of the NTO as shown by the New Appointment, so the plaintiff would like to amend the FBP Answers by pleading that the Temple was/is a t’ong, which averment they claimed would not prejudice the Ds or cause delay to the trial. The Kwong 2nd Aff further confirmed that the plaintiff would apply for leave to add the other two surviving co-Managers of the Temple Ip and Tang FW to be the plaintiff in the present action against the Ds to forestall their challenge to the plaintiff’s authority to sue. 36.So on 18 October 2013 (which was two days out of time under the order made at the 2nd PTR), the plaintiff issued a summons (“P’s 2nd Summons”) inter alia for leave to re-amend the Amended Writ of Summons in the manner shown in green as per the draft annexed thereto (“Writ Draft”). By the Writ Draft, the plaintiff proposed to add Ip and Tang FW (being Managers of the Temple) as the plaintiff in the present action. 37.On the same day, the plaintiff filed the respective affirmation of Ip and Tang FW in support of P’s 2nd Summons that confirmed their consent to the commencement/continuation of the present action by Tang KN against the Ds as well as their authorisation for Tang KN to act on behalf of the Temple in the present action. For the avoidance of doubt, Ip and Tang FW being co-Managers of the Temple also agreed to join as the plaintiff in the present action. 38.On 31 October 2013, D2 and D3 issued a summons for the following reliefs (“Ds’ Summons”):
39.On 1 and 22 November 2013, D2 and D3 respectively filed the 2nd and 3rd affirmations of their solicitor Chong Fu Chuen (“Chong”) in support of D’s Summons (“Chong 2nd and 3rd Affs”), and on 13 November 2013 the plaintiff filed Kwong’s 3rd affirmation in opposition (“Kwong 3rd Aff”). 40.In view of the above outstanding matters, the trial could not proceed, and at the 2nd PTR I vacated the trial and directed the outstanding applications be made returnable before me on 10 December 2013 (which should have been the first day of trial) (“Hearing”). 41.As regards the approach to be adopted for the determination of D’s Summons, guidance could be found in Kammy Town Limited as follows:
42.At the Hearing, both Ms Lau and Mr Ng confirmed that D’s Summons could be summarily disposed of on affirmation without cross-examination. Most of the background matters were documented by uncontroverted documents and not seriously challenged. In the ultimate analysis, D’s Summons was likely to be determined by legal arguments. 43.At the Hearing, Ms Lau applied for retrospective leave to file/serve and to rely on Tang KN’s 2nd affirmation filed on 9 December 2013 to oppose D’s Summons, which application was opposed by Mr Ng. But upon more mature consideration, Ms Lau decided to withdraw such application. VI. D’s SUMMONS (a) Plaintiff’s applications 44.The plaintiff maintained that Tang KN had been properly authorised to sue on behalf of the Temple, but for the avoidance of doubt, the plaintiff applied by the Amended P’s 1st Summons and P’s 2nd Summons to (a) join the other two surviving co-Managers Ip and Tang KW as the plaintiff to confirm Tang KN’s authority to commence and continue the present action, and (b) admit the Temple was/is a t’ong within the meaning of section 15 of the NTO. But D2 and D3 argued that the plaintiff’s name (whether in the original or to be amended form) was defective, and the plaintiff’s claim was liable to be struck out. (b) Delay 45.Kwong claimed D’s Summons was a late application. But in my view, it lied ill in the plaintiff’s mouth to make such complaint when the Amended P’s 1st Summons and P’s 2nd Summons also came late, and when the plaintiff urged the court to consider adding Ip and Tang FW as the plaintiff in the present action on de bene esse basis in order to oppose D’s Summons. Since the outcome of D’s Summons would necessarily impact on the viability of the plaintiff’s claim, it must be resolved on the merits. (c) Kwong’s personal knowledge/belief 46.Chong claimed that Kwong was merely the plaintiff’s solicitor and not a co-Manager of the Temple, so there was no basis for Kwong to assert in the Kwong 3rd Aff that at all material times he had been “personally involved in management of affairs of the Temple”. Chong further claimed that on such basis Kwong could not have any personal knowledge in relation to the matters stated in the Kwong 3rd Aff. Be that as it may, the material background facts set out in the Kwong 3rd Aff were not materially challenged for the purpose of dealing with D’s Summons, which summons ultimately had to be resolved on interpretation of those largely uncontroversial facts in accordance with the law. (d) Plaintiff’s case 47.In my view, upon considering the overall affirmation evidence, it was not the plaintiff’s case that Tang KN is the sole Manager of the Temple. Rather, it was common ground that the Temple had four registered co-Managers, ie Ip, Lo, Tang KN ad Tang FW, but upon Lo’s death on 21 December 2005, the present surviving co-Managers are Ip, Tang KNand Tang FW. The Kwong 3rd Aff claimed that the three surviving co-Managers had authority to sue the Ds on behalf of the Temple (which was/is a t’ong) because whether or not Lo would be replaced by a new co-Manager was an internal matter for the Temple. The Temple’s business vis-à-vis outsiders could not be handicapped or put on hold because one of its co-Managers had died and was not yet replaced. Here, the dispute was not between opposing camps with some supporting D1’s appointment as trustee of the Temple’s properties and others refuting such appointment. Rather, it was the Temple that sued inter alia D1 (now deceased) as its trustee for her allegedly wrongful transfer/assignment/sale of the Remaining Lots to D2 and D3. Kwong claimed that the Four Yeuk were united in their intention to uphold the interests of their members, and D2 and D3 should not be allowed to take technical advantage when in truth the members acted consensually to seek recovery of the Remaining Lots that belonged to them. With the approval/consent of Ip and Tang FW, it was argued that Tang KN clearly had authority to commence the present action, but for the avoidance of doubt, Ip and Tang FW would join as plaintiff to feed the standing to sue if necessary. (e) D2’s and D3’s case 48.On the other hand, D2 and D3 claimed that given the history of the Temple (which was/is a t’ong) having been administered and managed by four co-Managers each of whom representing the interests of one of the Four Yeuk, the four co-Managers had to act jointly in order to properly commence the present action, and the absence of appointment of any new co-Manager to replace Lo meant the surviving co-Managers had no power/authority to commence and/or continue the present action against the Ds. D2 and D3 explained there was an established custom/practice of having four co-Managers to act jointly for all matters of the Temple which they claimed accorded with Chinese customary law. 49.The Chong 2nd and 3rdAffs claimed that “粉嶺洪聖廟佈告” dated 17 March 2008 and placed before the Temple (“Notice”) was issued in the names of the four co-Managers with chops affixed thereto (save that for unknown reason two of them were named as Ip Wah Ching (葉華清) and Lo Pak Fan (羅伯芬)). Chong claimed the Notice demonstrated the Temple had an established custom/practice of having four co-Managers to act jointly for all matters. 50.I pause here to note that Kwong claimed the validity of the Notice was not something that concerned D2 and D3; rather the Notice demonstrated that D2 and D3 must have knowledge that D1 was merely a trustee running the Temple for the plaintiff. To clarify, Kwong explained that Lo’s son Lo Pak Fan was at that time a potential candidate to replace his father as Manager, so he signed his name on the Notice. Ip Wah Ching acted for Ip Wai Cheung because Ip Wai Cheung was busy with his own affairs and wanted Ip Wah Ching to replace him as Manager, so Ip Wah Ching signed the Notice for Ip Wai Cheung. Kwong claimed the Notice only went to show that the Temple’s business was carried out in a casual and informal manner, and it was irrelevant to the present action. 51.Returning to Chong’s 2nd and 3rd Affs, Chong noted the Old Appointment dated 29 August 1958 that appointed four co-Managers of the Temple (ie Ip Kat Ming, Tang Tim Shui, Lo and Tang Chong Tai) was also registered against Lot No 1475 in DD76 (“Lot 1475”) at the Land Registry. The land search records revealed that shortly thereafter, the four co-Managers acted jointly to deal with land held by the Temple by jointly executing a Surrender of Crown Lease on 2 December 1958 to surrender a part/portion of Lot 1475 to the government (“Surrender”). 52.Chong further noted the plaintiff’s pleadings admitted that On Leung Yeuk was formed by the Four Yeuk consisting of about 18 villages for the management of the Temple, and that each Yeuk would nominate one representative to be the Manager in the administration/management of the affairs of the Temple. By the Amended P’s Summons, it was further admitted by the plaintiff that the Temple is a t’ong within the meaning of section 15 of the NTO, and Chong said it would follow that the villagers of the Four Yeuk would be members of the Temple. 53.The account record of On Leung Yeuk dated 15 November 1956 (under lunar calendar) (“P’s Articles”), which appeared to have come into existence about two years before the Old Appointment, contained the following “articles” that concerned the Temple:
54.Chong claimed that by virtue of such “articles”, the Temple had established a custom/practice of appointing four co-Managers acting jointly in dealing with not only the land held by the Temple as evidenced by the Surrender but also all other matters as stipulated in P’s Articles. 55.Chong said the land search records of the HLM Lot also showed that at least since the Old Appointment the Temple all along had four co-Managers appointed in accordance with section 15 of the NTO as follows:
Hence, the Temple had established a custom/practice of appointing new Manager(s) to replace deceased co-Manager(s) to maintain having four co-Managers. 56.Chong noted that Lo passed away on 21 December 2005, so for more than five years until issuance of the Writ of Summons on 17 January 2011, no one had been appointed and/or approved by the Secretary for Home Affairs to replace Lo in accordance with section 15 of the NTO. But pursuant to P’s Articles and the Temple’s established custom/practice, all four co-Managers from the Four Yeuk should act jointly in dealing with all matters of the Temple. Mr Ng complained (a) there was no evidence of the number of members of each of the Four Yeuk that was represented by one of the four co-Managers of the Temple, and (b) the stance of the Yeuk represented by the deceased co-Manager Lo as to the present action was unclear. 57.Although Ip and Tang FW in their affirmations claimed they together with Tang KN were the three surviving co-Managers of the Temple, so far no one had been appointed to replace Lo and no new co-Manager was registered with the Home Affairs Department in accordance with section 15 of the NTO. Chong claimed that Chinese customary law and/or the Temple’s established custom/practice demonstrated that as a matter of fact and law the three surviving co-Managers of the Temple would not have authority to sue because after Lo’s death they lacked full power/authority to act for the Temple to commence the present action against the Ds. (f) Burden of proof 58.In her written submissions, Ms Lau argued that since D2 and D3 took out D’s Summons to strike out the plaintiff’s name and claim, they should bear the burden of proof to establish that the plaintiff had no standing to sue. Ms Lau relied on the observation by Yuen J (as she then was) in Tang Man Kit and Foo Tak Ching (suing as managers of Wah Yan Mo Fan Heung) v Hip Hing Timber Company Limited that “[the] burden is of course on the Defendant to show that [the managers] have no authority to sue”.[6] 59.Tang Man Kit had spawned a large number of judicial decisions all the way to the Court of Appeal and the Court of Final Appeal. Later in this Decision, it will be necessary to set out the background of this case in order to put the rulings in context, but it suffices for present purpose to note that the decision by Yuen J (as she then was) was allowed on appeal by the Court of Appeal.[7] The matter went to the Court of Final Appeal,[8] and question arose as to whether the decision by Yuen J (as she then was) was a final or interlocutory one. The Court of Final Appeal held that it was a final order, which meant that the two-member Court of Appeal had no jurisdiction to determine the appeal. Subsequently, the original appeal was reinstated and heard afresh by a three-member Court of Appeal.[9] The appeal was allowed. 60.Yuen J (as she then was) did not give legal analysis for her observation as to the burden of proof set out in paragraph 58 above. Although, as Ms Lau pointed out, Lord Millett NPJ in the Court of Final Appeal mentioned that “[the] judge ruled that the burden was on the defendant to show that the plaintiffs had no authority to sue”,[10] he was merely recounting the history of the litigation. Such ruling by Yuen J (as she then was) was not a subject matter of the appeal to the Court of Final Appeal, which did not form any view on such ruling. 61.In my view, Mr Ng’s contention (as borne out by more recent authorities) that the burden fell on the plaintiff to prove authority to sue is more persuasive. 62.In Kammy Town Limited, Cheung JA said as follows:
63.Mr Recorder H Wong SC in Billion Express Industrial Limited v Tsang Hung Kong[11] followed Kammy Town Limited in holding that the plaintiff carries the legal burden of proving authority to sue whilst the defendant carries the evidential burden. He referred to Phipson on Evidence[12] and reminded that the evidential burden (which is no more than a burden to adduce evidence of what is asserted that is sufficient to go to the jury, ie that it is on its face believable) must not be conflated with the legal burden. Unless the defendant discharges the evidential burden, there will be nothing to contradict the prima facie effect of the evidence adduced by the plaintiff, but it is not quite the same as saying that the defendant bears the burden of proving his assertions on the balance of probabilities. The legal burden rests with the plaintiff and does not shift. 64.In the circumstances, whilst D2 and D3 carried the evidential burden, it is ultimately for the plaintiff to establish authority to sue on the balance of probabilities. (g) Chinese customary law 65.Mr Ng submitted that Chinese customary law was relevant pursuant to section 13 of the NTO, and that although D2 and D3 did not adduce any expert evidence I am entitled to take judicial notice of Chinese customary law and custom as found in previous decisions.[13] In Tang Che Tai & ors v Tang On Kwai & ors,[14] it was said that:
(h) Nature of a t’ong 66.Mr Ng argued that a t’ong is not a legal entity but a customary land trust. According to Tang Che Tai & ors,
(i) Sections 15-16 of the NTO 67.Sections 15-16 of the NTO provide that:
(j) Discussion 68.Mr Ng argued that since (a) properties held by the Temple were in the nature of trust property in which all members had beneficial interest, and (b) the power to deal with the Temple’s properties was vested in the four co-Managers under section 15 of the NTO, the four co-Managers being trustees were required to act jointly or unanimously in exercising such power. 69.Mr Ng submitted that P’s Articles, which provided that On Leung Yeuk was set up for the purpose of maintaining the relationship of the members of the Four Yeuk and the properties of the Temple, and which governed how the Temple should be managed (including the requirement that matters concerning the Temple should be decided by the four appointed co-Managers from the Four Yeuk), reflected the Ancestors’ original intention that each Yeuk was to have a representative appointed as Manager of the Temple to represent its interests. Mr Ng argued that all along the Temple operated along such basis, eg the four Managers were the signatories of the Temple’s bank account, and when Lo resigned as Manager in 2001 he recommended Choi to take up his position. 70.Mr Ng contended that since the present action was not commenced upon the consensus/agreement by all four co-Managers of the Temple (because Lo died without replacement before 2011), and there was no evidence of any meeting having been convened for the purpose of seeking the consensus/agreement of the Four Yeuk, the plaintiff whether by Tang KN alone or by Tang KN, Ip and Tang FW jointly would not have proper authority to commence the present action against the Ds, and the plaintiff’s name and claim were liable to be struck out. 71.Mr Ng cited Tang Kam Wah & ors v Tang Yat Ming & anor[15]and Mak Lai Chuen suing as sole manager of Mak Tsok Sui Tso v Lau Kar Yau[16] in support of his propositions. 72.In Tang Kam Wah & ors, there was dispute over the validity of a lease over land belonging to two tsos. The plaintiff claimed inter alia that under section 15 of the NTO and on the principle of unanimosity, only the respective managers of the two tsos being trustees acting unanimously in the exercise of their powers could deal with or lease tso properties, and the lease was invalid since it inter alia did not have the consent of and was not signed by all the managers of the respective tsos, hence such lease was incapable of binding the trust. Each of the two tsos should have six managers, one from each branch of descendants, but the lease was signed by only two of the Managers. 73.On the other hand, although the defendants did not take issue with the mandatory nature of section 15 of the NTO nor the principle of unanimosity, they argued that since the lease was agreed/approved at a duly convened meeting by the members of the tsos, it was valid and binding pursuant to a customary rule, and the court should not equate “manager” with “trustee” in the context of section 15 of the NTO or import the English legal concepts of “trustee” when construing section 15 of the NTO. 74.Chu J (as she then was) referred to the oft-cited description of a tso by Mills-Owens J in Tang Kai Chung & anor v Tang Chik-shang & ors[17] in which Mills-Owens J concluded that a tso is a trust and the manager registered under section 15 of the NTO is a trustee within the meaning of the Trustee Ordinance Cap 29.[18] In Leung Kuen Tai v Tang Kwong Yu (or U) T’ong or Tang Kwong Yu Tso, DHCJ Lam (as he then was) also concluded that the concept of trust applies to a tso with the managers as trustees and the members as beneficiaries, which is an instance of applying the concepts of trust in English law to a Chinese customary institution, but having regard to local circumstances, certain concepts (such as the rule against perpetuities) are held to be inapplicable.[19] 75.Chu J (as she then was) concluded that the well established legal principles of tso, tso property and managers appointed under section 15 of the NTO are as follows:
On the basis of the above principles, Chu J (as she then was) held that:[20]
76.Like the parties in Tang Kai Chung & anor, Ms Lau and Mr Ng also had no dispute that the principle of unanimosity applied to the Managers of the Temple being a customary land trust. But Tang Kai Chung & anorwas not concerned with the situation in the present action in which one of the co-Managers had passed away. Rather it dealt with the situation where some of the existing co-managers of the tso failed to endorse the lease, which was clearly in breach of the principle of unanimosity. 77.In Mak Lai Chuen suing as sole manager of Mak Tsok Sui Tso, DJ Mimmie Chan (as she then was) dealt with the Mak Tsok Sui Tso which was an entity for holding ancestral land under Chinese law and custom under section 15 of the NTO with beneficiaries comprising four branches of the Mak family. Mak Yuk Hon (descendent of the first branch) and Mak Lai Chuen (descendent of the fourth branch) were registered as managers of the subject land under section 15 of the NTO. Historically, the registered managers/trustees of the tso came from the first and/or fourth branches of the family. Mak Yuk Hon died in 1997 and there was no change to the registration of managers under section 15 of the NTO since members of the tso could not come to any agreement. 78.The disputed land was occupied by Mak Yuk Hon’s family, but in 2000 two tenancy agreements were entered into between the tso (signed by Mak Kam Fat and Mak Tim Fat) and the defendants (ie Mak Yuk Hon’s daughter and daughter-in-law) respectively. In 2005, the tso served notices to quit on the defendants, and later commenced action to recover vacant possession of the land, outstanding rent, mesne profits and interest. The defendants claimed inter alia that after the demise of Mak Yuk Hon, Mak Lai Chuen had no authority or right to act on behalf of the tso to issue the notices to quit and had no authority or capacity to commence action as the sole manager of the tso. 79.It was argued that under Chinese customary law, where two or more persons were appointed as managers of the tso, they act jointly and have joint power and authority to act, and on the death of one of such managers, the survivor does not automatically assume full power and authority, and the members of the tso must agree to appoint someone else to replace the deceased manager. 80.The learned judge held that section 15 of the NTO did not make express provision for such situation, and under section 13 of the NTO the court had power to and should recognise and enforce any Chinese custom or customary right affecting land in the New Territories.[21] The expert witness opined that Mak Yuk Hon and Mak Lai Chuen each had 50% power and authority to represent the tso, and this did not change on Mak Yuk Hon’s death such that Mak Lai Cheun would not automatically become the sole manager with full power and authority to represent the tso.[22] 81.Further, according to the expert witness, decisions by the tso and in particular important decisions such as decisions to select or cancel the registration of a manager “and decisions to evict members of the family of the Tso from Tso property, must be decided by the majority of all the members of the Tso, and not by the Manager himself. In [her] judgment, this point which emerges from the expert evidence of Professor Chang is important and quite distinct from the issue of whether, on Yuk Hon’s death, Lai Chuen as sole surviving manager has full authority to act for the Tso”.[23] The expert witness also opined that (a) if one family line of the various branches of the family did not participate in the decision making process it would seriously if not fatally affect the validity of any decision affecting the tso,[24] and (b) the notice of meeting was to be given to each family line thus giving them a chance to vote at the meeting on decisions affecting the tso was a pre-requisite for any valid meeting to make decisions which affected the tso.[25] 82.The learned judge concluded that after Mak Yuk Hon’s death, Mak Lai Chuen did not have the right to act for the tso to terminate the tenancies and to commence these proceedings to seek recovery of the land from the defendants :
83.What emerged from the above was that the subject matter of the dispute in Mak Lai Chuen suing as sole manager of Mak Tsok Sui Tso was between the surviving Manager and “insiders” being members of the family clan. According to the expert evidence, which the learned judge accepted, one of the defendants being the widow and daughter-in-law of members of the tso, although not literally being a member, had the same rights as her husband. The other defendant was a daughter of a member of the tso. The expert witness opined that “[an] unmarried daughter has certain rights to the Tso property and in the case of a married daughter who takes care of an elderly parent …… the daughter is given preferential treatment by the Tso …… On the strength of Professor Chang’s clear evidence, [the learned judge] find that [the defendants] have the right to challenge [the plaintiff’s] authority to act for the Tso in this case”.[26] 84.Here, Mr Ng submitted since the plaintiff pleaded that the Ds were trustees of the Temple, they could not be described as outsiders. I disagree. Insofar as the Temple being a t’ong is a customary land trust, the trustees are the Managers and the beneficiaries are all the members of the t’ong, which proposition Mr Ng accepted as seen in paragraph 52 above. There is no evidence that D2 and D3 are male members/descendents of the Four Yeuk. On the plaintiff’s case, they were merely wrongful purchasers of the Remaining Lots, and as such they became constructive trustees. As for D1, she is neither a daughter nor wife of any of the members of the Four Yeuk, but merely a salaried outsider whom the Managers of the Temple as trustees permitted to be the keeper of the Temple and legal holder of the Four Lots on behalf of the Temple. She was not an insider beneficiary of the Temple as a t’ong. 85.In any dispute as between the managers/trustees and the insider beneficiaries (ie the members of the t’ong and also widows and unmarried daughters of members of the tso as well as married daughters looking after elderly parents in Mak Lai Chuen suing as sole manager of Mak Tsok Sui Tso), it is always open to the insider beneficiaries to challenge the managers’ authority to sue for they are the very parties interested in the internal management of the t’ong. Hence, the defendants in Mak Lai Chuen suing as sole manager of Mak Tsok Sui Tso was entitled to challenge the authority of Mak Lai Chuen to act when there was no replacement for his co-Manager Mak Yuk Hon who had passed away. But the question is whether this conclusion still remains applicable when the dispute is between the Managers and outsiders. 86.Ms Lau argued that the authority of the Managers of the Temple to sue was an internal management matter for the Temple that did not concern D2 and D3 who were at all material times outsiders. She pointed out there was no evidence that any member of the Temple as a t’ong objected to the present action. Ms Lau further contended that since all the surviving co-Managers of the Temple are now prepared to join in the present action as plaintiff, there could not be any viable challenge to the plaintiff’s authority to sue, and D’s Summons should be dismissed. 87.Ms Lau relied on the observations by Lord Millett NPJ in the Court of Final Appeal Decision in Tang Man Kit in support.[27] Lord Millet NPJ in considering the authority of Tang Man Kit and Foo Tak Ching as manager of Wah Yan Mo Fan Heung to represent the heung in seeking recovery of the heung’s land from an outsider tenant holding over after the expiry of the notice to quit said as follows:[28]
88.In that case, Wah Yan Mo Fan Heung was beneficially interested in land in the New Territories. The defendant, a former tenant occupying part of such land, was holding over after the expiry of the notice to quit. When the action commenced in 1990, the plaintiff (originally named as “Wah Yan Mo Fan Heung with Chan Kam Cheung and Tang Man Kit as Managers”) pleaded that the heung was an unincorporated association with Lui Lap Ka (later replaced by Wong Pui) and Wong Tat To as its managers/trustees, and sought to recover such land and mesne profits. The defendant admitted that Wong Tat To had been a manager of the heung, but claimed there was (a) lack of authority to issue the notice to quit, and (b) an oral agreement with Wong Tat To as manager/trustee that they would be entitled to remain in possession until the government resumed the land. 89.Following the death of Wong Pui and Wong Tat To, the Statement of Claim was amended in 1997 to plead that Chan Kam Cheung and Tang Man Kit had become the new managers/trustees of the heung. In 1998, the defendant applied to challenge the capacity of the heung as an unincorporated association to sue or hold land, and the plaintiff was given leave to amend the title to “Tang Man Kit suing as sole manager of Wah Yan Mo Fan Heung” and to re-amend the Statement of Claim to add an alternative case that the heung was a t’ong. Later in the year, the defendant raised four preliminary issues, ie (a) whether Tang Man Kit was the validly approved/registered manager of the heung under section 15 of NTO, (b) whether the heung was a t’ong within the meaning of section 15 of the NTO, (c) whether the plaintiff had locus to bring the action, and (d) whether Wong Tat To and Wong Pui were the validly approved and registered managers of the heung under section 15 of the NTO when the notice to quit was served. Yuen J (as she then was) held that the issue of authority to sue should be raised by proper procedure without delay, so the defendant applied to set aside the Writ of Summons as having been issued without authority. 90.However, in 2000 the District Land Officer issued (and registered in the District Land Registry) two documents under section 15 of the NTO confirming (a) the appointment of Tang Man Kit and Chan Kam Cheung as managers of the heung to replace Lui Lap Ka, Wong Tat To and Wong Pui (and others) with effect from 1989, and (b) the appointment of Foo Tak Ching to replace Chan Kam Cheung as a manager of the heung with effect from 1999. There was a subsequent re-amendment to the pleadings to add Foo Tak Ching as a plaintiff. 91.In the first instance judgment, Yuen J (as she then was) concluded that the plaintiffs had no authority to sue and dismissed the action. She held inter alia that the heung was not a t’ong within section 15 of the NTO, and that even if it were a t’ong, the plaintiffs were not the registered managers of the t’ong at the time when the action was commenced and therefore could not commence such action. The Court of Appeal[29] held the heung was and always had been a t’ong within the meaning of section 15 of the NTO. 92.In the Court of Final Appeal, Lord Millet NPJ drew a distinction between the managers’ authority to bring the proceedings in their own names and the question whether they were the persons in whom the cause of action was vested. He noted that Yuen J (as she then was) found that Tang Man Kit and Foo Tak Chingwere not suing in their own right and had no authority to sue on behalf of the heung, which decision “did not go to their authority to bring the proceedings in their own names, which was beyond dispute, but to the question whether they were the persons in whom the cause of action was vested”. But this issue was not raised by the Defence which proceeded on the basis that the heung was the beneficial owner of the land, that at that time Wong Tat To was its manager/trustee, and that he entered into the relevant agreements on behalf of the heung which bound the heung. Thus, there was no pleaded issue as to the questions of fact and law which Yuen J (as she then was) decided. 93.The eventual appeal from the decision by Yuen J (as she then was) was heard before a three-member Court of Appeal in April 2005.[30] Cheung JA held that by 2000 the District Land Office clearly recognised the heung was a t’ong under section 15 of the NTO, and gave retrospective approval of the managers, so it was not open to anyone including the defendant to litigate on the issue again to challenge the status of the heung and the plaintiffs. The learned judge repeated Lord Millet NPJ’s observations in paragraph 87 above and said “[the] defendant, as an outsider of the Heung, had gone to undue length to challenge the status of the Heung and the managers when its stake in the land only came from the Heung and the managers. This is an extraordinary approach which in my view was totally unjustified”. Cheung JA further noted that the defendant never applied for “an appropriate representation order” as envisaged by Lord Millett NPJ. Also, Cheung JA drew a distinction between the question of title of the managers (which was irrelevant because the person who was entitled to recover land rested on his right to possession of the land and not on his right to pass title to a third party) and their capacity to sue to recover the land.[31] As approved managers of the heung, Tang Man Kit and Foo Tak Ching clearly were in possession of the land when they began the action to recover land. 94.Both the Court of Appeal and Court of Final Appeal decisions in Tang Man Kit were considered and distinguished by DJ Mimmie Chan (as she then was) in Mak Lai Chuen suing as sole manager of Mak Tsok Sui Tso.[32]In Tang Man Kit, there was no issue of whether on the death of one of two registered managers the surviving registered manager had authority to act because upon the death of one manager in Tang Man Kit another manager was appointed and registered before the next controversial act was carried out. Further, the Court of Final Appeal in Tang Man Kit pointed out the Managers’ authority to act was a matter of internal management of the tso, and it was not open to outsiders (eg the corporate tenant in that case) to challenge or query the managers’ authority. But in Mak Lai Chuen suing as sole manager of Mak Tsok Sui Tso, the tenants whom Mak Lai Chuen sought to evict from the land were not “outsiders” of the family clan, but the wife and daughter of clan members who had the same rights as the male members of the tso to be protected by the tso and to enjoy the tso property, and according to the expert witness, the decision to evict members of the family clan from tso property was a very important decision that must be decided not by the manager as a matter of routine management but by the tso members as a whole.[33] It was in the context of such a dispute between Mak Lai Chuen as manager/trustee and the “insider” defendants being members of the family clan that the court under section 15 of the NTO took into account the expert evidence (which Mak Lai Chuen did not challenge by adducing other evidence) on Chinese customary law in respect of the limited powers of jointly appointed manager upon the death of his co-manager.[34] 95.As explained above, the present situation is different in that the surviving co-Managers were dealing with the Ds as “outsiders”. The present situation is also not one in which some of the existing appointed and registered co-Managers failed to join in as the plaintiff. In such circumstances, I find Lord Millett NPJ’s observations in the Court of Final Appeal’s decision in Tang Man Kit relevant and pertinent. The authority of Tang KN, Ip and Tang FW to represent the Temple was matter of the internal administration of the Temple (being a t’ong) and had nothing to do with the “outsider” Ds, and D2 and D3 cannot enquire into the propriety of the surviving co-Managers’ authority to act or on such basis strike out the present proceedings. That being the case, I need not consider any custom and practice of the Four Yeuk and the Temple raised in the Chong 2nd and 3rd Affs which were internal administration matters beyond the concern of D2 and D3. 96.In the circumstances, I dismiss D’s Summons and grant a costs order nisi that D2 and D3 shall pay the plaintiff’s costs of such summons (with all costs reserved, if any) on High Court scale to be taxed if not agreed. VI. AMENDED P’s 1ST SUMMONS AND P’s 2ND SUMMONS 97.D2 and D3 did not take any issue over P’s 2nd Summons for being out of time. Given the outcome of Ds’ Summons, D2 and D3 had no objection to P’s 2nd Summons. But the application to join Ip and Tang FW as plaintiff was not a mere matter of amendment of pleadings. Application should also have been made under Order 15 rule 6 of the RHC. However, since Ip and Tang FW both filed affirmations confirming their consent to be added as plaintiff, and D2 and D3 did not raise any substantive objection to P’s 2nd Summons, I am prepared to grant leave for the plaintiff to join Ip and Tang FW as plaintiff in the present action and for the Amended Writ of Summons to be re-amended to reflect the same. 98.As regards the Amended P’s 1st Summons, D2 and D3 raised some initial objections. D2 and D3 noted that the FBP Draft admitted that the Temple, On Leung Yeuk, Tang Wing Shing Tong, Hung Shing Kung and Tan Chuk Hang Yeuk are t’ongs within the meaning of sections 15-16 of the NTO, but the 1st Reply Draft still (a) maintained that the plaintiff is a tso/t’ong but the Ds could not pray in aid of sections 15-16 of the NTO, and (b) also put the Ds to strict proof that sections 15-16 of the NTO applied to On Leung Yeuk, Tang Wing Shing Tong and Hung Shing Kung. The Chong 1st Aff complained that the 1st Reply Draft failed to clearly admit that the plaintiff is a t’ong within the meaning of sections 15-16 of the NTO, and the differences between the 1st Reply Draft and the FBP Draft were embarrassing and might lead to confusion. 99.The plaintiff exhibited a revised draft of the Amended Reply and Defence to Counterclaim (“2nd Reply Draft”) to the Kwong 3rd Aff. In the 2nd Reply Draft, the plaintiff averred that the Temple is a t’ong registered with the Home Affairs Department under section 15 of the NTO and On Leung Yuek, Tang Wing Shing Tong and Hung Shing Kung were t’ongs within the meaning of sections 15-16 of the NTO, and that the surviving co-Managers Tang KN, Ip and Tang FW had either by themselves, their agents, representatives, successors or otherwise authorised, consented to and approved the present action. 100.At the Hearing, Mr Ng confirmed that D2 and D3 had no further objection to the 2nd Reply Draft and the FBP Draft. Given the outcome of D’s Summons, there is no reason not to accede to the Amended P’s 1st Summons and P’s 2nd Summons. Further, at the Hearing, Ms Lau applied (and Mr Ng had no objection) for the Statement of Claim to be amended to bring it into line with the amendments proposed in the 2nd Reply Draft and the FBP Draft, and she agreed to provide a draft amended Statement of Claim to D2 and D3 for consideration. 101.I therefore grant the following order:
102.At the Hearing, Ms Lau accepted (and I now so order) that costs of and occasioned by the Amended P’s 1st Summons and the P’s 2nd Summons (including all costs reserved if any) on High Court scale be paid by the plaintiff to D2 and D3 to be taxed if not agreed. VIII. WAY FORWARD 103.At the Hearing, I urged the plaintiff to take steps to clarify the position in relation to D1 so that the present action could move forward again towards trial. Ms Lau assured me that the plaintiff was taking active steps in this regard. 104.In their Defence and Counterclaim, the Ds urged for the present action to be transferred to the District Court. The Ds averred that the collective annual rateable value of the Remaining Lots did not exceed $240,000. However, the plaintiff was initially diffident about such approach since they considered their claim for damages might exceed District Court jurisdiction. 105.But with the trial dates vacated and further steps to be taken before the present action would be ready again for setting down for trial, and given the state of the court’s diary in the Court of First Instance, it is most unlikely for a trial to be scheduled in the near future. I drew the parties’ attention to section 44 of the District Court Ordinance Cap 336 (“DCO”) which provides as follows:
106.I echo the following sentiments by Lam J (as he then was) in Re Estate of Chow Nai Chee:[35]
107.Subsequent to the Hearing, having considered their position, both parties confirmed their agreement to transfer the present action to the District Court pursuant to section 44 of the DCO. In the circumstances, I further direct that (a) the present action be transferred to the District Court pursuant to section 44 of the DCO, and (b) the plaintiff shall within 21 days of such transfer apply to a District Court judge for a PTR for further case management and, where appropriate, for leave to set the present action down for trial (“3rd PTR”).
Ms Lorinda Lau, instructed by Leung Kin & Co, for the plaintiff Mr Tony Ng, instructed by Wong, Fung & Co, for the 2nd and 3rd defendants [1] see paragraph 3 below [2] see paragraph 53 below [3] see Hong Kong Civil Procedure 2014 Vol 1 para 18/19/24 at p 435 [4] HCA3524/2003, A Cheung J (as he then was) (unreported, 14 January 2005) (see also Grant Thornton International Limited & ors v Tang Chung Wah (also known as Alan Tang) & anor HCCL17/2012, Ng J (unreported, 5 June 2013) para 33 and Hui Sum & ors v Hui Ting Nung HCA289/2010, DHCJ Bebe Chu (unreported, 28 May 2013) para 33) [5] [2009] 1 HKLRD 169, 174 [6] HCA8000/1990, Yuen J (as she then was) (unreported, 3 September 2001) para 25 [7] CACV137/2002 (unreported, 11 December 2002) [8] (2004) 7 HKCFAR 212 [9] CACV137/2002 (unreported, 13 May 2005) [10] (2004) 7 HKCFAR 212, 220 [11] HCA2740/2008 (unreported, 23 May 2012) paras 39-42 [12] 17th ed para 6-02 [13] see Wong Yu Shi (No 1) v Wong Ying Kuen [1957] HKLR 420, 438-440 (“If [Tsing law is incorporated into the law of Hong Kong as part of the law of distribution on intestacy], Tsing law and custom is part of the law of the Colony of which the courts may take judicial notice; the court regards itself therefore as not being confined to the evidence of those experts who appeared as witnesses but as being at liberty also to consider such text books and other like sources as may appear helpful, in the difficult task of ascertaining its extent and effect”), Yeung Chi Ding & ors v Yeung Tse Chun [1986] HKLR 131, 137-138 (“…… Tsing law and custom were then part of the law of this land, of which judicial knowledge was not infrequently taken. …… When we proceeded to the 1950’s, many aspects of Tsing law and custom had been matters of common knowledge and accepted as such without proof …… Even in the 60’s, I recall, time and again there was justification for resorting to expert evidence in the absence of recorded information or merely for ease of reference. Later in time, Tsing customary adoption and marriage were more readily examined in Courts primarily with the aid of publications and reported authorities. Occasionally experts were restored to their earlier places of prominence only when written materials were sparse and reported cases were in conflict …… Expert evidence remains, however, an almost indispensable source of guidance in the ever changing Tsing customs in most of our New Territories villages. ……”, and Tang Che Tai & ors v Tang On Kwai & ors HCA331/2002, DHCJ To (as he then was) (unreported, 13 April 2007) para 57 [14] HCA331/2002, DHCJ To (as he then was) (unreported, 13 April 2007) upheld on appeal in CACV137/2007 (unreported, 25 January 2008) (see also paras 70-71 of the judgment) [15] HCA10141/1998, Chu J (as she then was) (unreported, 26 November 2002) [16] DCCJ 2609/2006 and DCCJ2610/2006, HH Judge Mimmie Chan (as she then was) (unreported, 29 August 2008) [17] [1970] HKLR 277 [18] at p 304 (see also paragraph 66 above, Kan Fat-tat also known as Kan Fat v Kan Yiu-tat also know as Kan Tat [1987] HKLR 516 and Tang Yau Yi Tong & anor v Tang Mou Shau Tso & ors [1996] 2 HKLR 212) [19] [2002] 2 HKLRD 705, 717 [20] see paragraph 72 of the judgment [21] see para 21 of the judgment [22] see para 26 of the judgment [23] see para 28 of the judgment [24] see para 29 of the judgment [25] see para 30 of the judgment [26] see paras 16-17 of the judgment [27] (2004) 7 HKCFAR 212 [28] at p 221 [29] CACV137/2002 (unreported, 11 December 2002) [30] CACV137/2002 (unreported, 13 May 2005) [31] see para 48 of the judgment [32] see para 32 of the judgment [33] see para 35 of the judgment [34] see para 36 of the judgment [35] [2010] 5 HKLRD 640, 651 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
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