1969

LI TANG SHI v. LI WAI KWONG AND ANOTHER

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HCA1763/1967LI TANG SHI v. LI WAI KWONG AND ANOTHER

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11506-EN-1969-12-13

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CACV000027/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 27 OF 1969

Between
	LI TANG SHI	Appellant
	AND
	LI WAI KWONG	1st Respondent
	THE ATTORNEY GENERAL	2nd Respondent

Coram: Rigby, S.P.J., Scholes, J. & Mills-Owens, J.

Date of Judgment: 13 December 1969

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JUDGMENT

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Rigby, S.P.J.:

1. I have had the advantage of reading the judgment of my brother Mills-Owens J., with which my brother Scholes, J. has expressed his agreement.

2. For myself, I must confess that I was impressed by the lucid and cogent arguments advanced by Mr. Litton supported, at any rate to some extent, by the evidence upon the record, that the word "Tso" was capable of two meanings; first, for the purpose of showing that land has been converted into family land (and, therefore, registerable under Section 15 of the New Territories Ordinance) and, secondly, also for the purpose of showing that the previous owner of the land is in fact dead.

3. Li Wah Fuk died sometime in 1908, leaving surviving him as his widow the appellant. The appellant at that time was a very young girl. On the 28th March, 1912, an Instrument was registered in the Land Registry at the District Office, Tai Po, appointing trustees for the property of the deceased. The persons so appointed were two persons bearing the surname Li and the present appellant. By that Instrument those three persons were declared to be the trustees of Li Wah Fuk Tso. The argument advanced was that the two persons were appointed with her as co-trustees to assist her in collecting the rents from the property and generally assisting in the management of that property and that the word "Tso" was included in this Instrument then registered not for the purpose of declaring the land as family land but solely for the purpose of warning any persons interested in the purchase or acquisition of the property that the registered owner was in fact dead.

4. It is not disputed that under Ching law the widow, although not entitled to succeed to the property, was the person solely entitled to the income and management of the property. Furthermore, the widow had the sole right to choose and adopt a successor to her husband's property; such successor to be the nearest relative of agnatic descent of her deceased husband and bearing her husband's surname. It was further undisputed that there was no time limit within which the widow was required to make such an adoption and no one who could dictate to her whom she was to adopt. The person so adopted would succeed to the personal property of the deceased Li Wah Fuk. The argument advanced by Mr. Litton was that in 1912 no one had the power arbitrarily to add the work "Tso" to the deceased's estates and thereby convert what was private land into family land. The appellant herself, as widow, although holding a life interest in the income and management of the property, had no right herself to create a "tso" and thereby deprive or fetter the rights of the male successor to the property; nor were there any other close relatives or clansmen then in existence who had a greater right than the widow to convert the personal property of the deceased into family land. However, the difficulty as to that argument seems to me to be really a question of fact and dependent upon what evidence, if any, there was to determine what were the rights and interests, if any, of the signatories at the time the relevant entry was made in the Land Registry in 1912. Assuming that the word "tso" is indicative not only of the creation of land as family land, but also, as the appellant contends, of signifying to anyone inspecting the Land Registry that the previous owner is dead and that the widow, with the assistance of trustees, is simply holding a limited interest in the land, what was the purpose and intention with which that 1912 entry was made in the Land Registry? The appellant herself, although apparently a woman now of considerable age, was available at the trial but did not give evidence: nor was any other evidence given as to the relationship of the co-trustees who signed that entry or as to their purpose and intention when it was so signed. Mr. Akers-Jones, an administrative officer of wide experience, said that "tso" - and here I quote from the judgment of the learned trial judge - "had come to indicate a form of land holding by which the succeeding generations of a family preserve intact the lands of a common ancestor principally to ensure that reverence is paid to a common ancestor i.e. that Tso land is "family" land and therefore registerable under section 15 of the Ordinance, which includes the term "family" ....". "He did not agree that when "tso" is added to a person's name it only meant that that person was dead." The learned trial judge accepted that evidence. In the absence of any positive evidence as to the meaning and intention of the parties when the 1912 entry was made I think the learned trial judge was entitled to accept and act upon that evidence that the effect of the 1912 entry was to create a "tso" and convert the land into "family" land.

5. But there still remains the argument advanced by Mr. Litton that as a matter of law, the widow having only a limited and life interest, in the land, in the absence of a male successor could not - acting either by herself or with the agreement of other clansmen - have converted the personal estate into family land so as to deprive the male successor of his estate and interest in the land. The learned trial judge, and the majority of this Court, have taken the view that, according to the expert evidence, a "tso" was in fact created and that the land is family land and properly registered under Section 15 of the New Territories Ordinance: no advantage is to be gained by my expressing a different view: the appeal must accordingly be dismissed.

6. There remains only the question of the cross-appeal by the Attorney General on the order made by the trial judge that costs, or a part of the costs, be paid by the Crown.

7. The relevant sections, section 44 of the New Territories Ordinance and section 17 of the Crown Proceedings Ordinance, have already been set out in the judgments of my brothers and I do not propose to quote them again. I take the view that the expression "liability" used in section 44 of the New Territories Ordinance mean "liability" in the sense that no personal liability or responsibility shall attach to the individual, or to the Crown, in respect of any wrong act done, or irregular or incorrect entry made, by a Land Officer in the course of his duty, such as would otherwise, in the case of any other person, have supported or justified an action for damages as a consequence of such wrong act or irregular or incorrect entry. But in my judgment where relief is claimed against the Crown, not in the form of an action for damages but simply by way of certain declarations which are sought, if the Crown chooses to resist that claim and is unsuccessful, then the Crown is liable for such costs as can properly be apportioned by reason of the successful plaintiff's necessity to prove his right to the declaration or declarations which he has sought. To this extent I would dismiss the cross-appeal.

Representation:

Litton (Samuel Soo & Co.) for Appellant.

1st Respondent in person.

M.J. Stapp, C.C. for 2nd Respondent.

Separate Judgments handed down.

11505-EN-1969-12-13

LI TANG SHI v. LI WAI KWONG AND ANOTHER

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CACV000027B/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 27 OF 1969

-----------------

BETWEEN
	LI TANG SHI	Appellant (Plaintiff)
	AND
	LI WAI KWONG	1st Respondent
		(1st Defendant)
	THE ATTORNEY GENERAL	2nd Respondent
		(2nd Defendant)

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Coram: Rigby, S.P.J., Scholes, J. and Mills-Owens, J.

Date of Judgment: 13 December 1969

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JUDGMENT

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1. At the date of his death in 1908 the deceased, Li Wah Fuk, was registered under the land registration system prevailing in the N.T. as the owner of certain properties there situated. It is common ground that he died leaving the plaintiff appellant his lawful widow, but without issue. The first respondent, the first defendant in the proceedings, is the nearest male relative of the deceased, being a descendant in the male line of the deceased's paternal grandfather.

2. In 1912 a document was registered against the relevant titles purporting to record the appointment under section 15 of the N.T. Ordinance (Cap. 97) of three managers of the "Li Wah Fuk Tso", the appellant being one of such managers. The two other managers subsequently died, leaving the appellant as sole manager.

3. At a later date the first respondent was appointed an additional manager, jointly with the appellant. Subsequently the appellant was removed from her position as a joint manager, purportedly under section 15 of Cap. 97, thus leaving the first respondent as the sole registered manager. As the learned trial judge held, the appointment of the first respondent as a joint manager was wrongly made by the officials of the Land Office; and so also was the removal of the appellant, without her being given a hearing, held to be wrong as being contrary to natural justice. On the appeal the first respondent has appeared but entered no cross-appeal against those decisions.

4. The A.G. was made a second defendant, apparently because of the allegations of wrong-doing (in the technical sense) on the part of the officials of the Land Office, namely their alleged wrongful appointment of the first respondent as a joint manager followed by their alleged wrongful removal of the appellant.

5. The case of the first respondent was that the properties derived from an ancestor of the deceased and formed part of a Tso which had been created by that ancestor; he, the first respondent, as he contended, was a descendant in the male line of that ancestor and therefore now was entitled to succeed to the properties for his lifetime, subject always to the claim of the deceased's widow, the appellant, to maintenance.

6. The learned trial judge rejected the first respondent's defence of an anterior Tso, holding the deceased to have died possessed of the properties as sole beneficial owner thereof. He also held against the A.G. on the issues of the validity of the appointment of the first respondent as a joint manager and the removal of the appellant. As to the appointment of the first respondent as a joint manager this was held invalid as being an appointment made by the Land Officer and not, as the section requires, an appointment reported to and approved by him. I have already referred to the reason for holding the removal of the appellant invalid. In the circumstances of the appeal we are not concerned to review any of the foregoing decisions.

7. However, among the claims for relief made by the appellant plaintiff was a claim for a declaration, in effect, that the properties are not now Tso properties and therefore are not subject to section 15 of Cap. 97; his forms the substance of the appeal. The interest of the appellant in claiming such a declaration is not clear; apparently her pecuniary rights would not vary according to whether the properties devolved on her husband's death as property to which he was solely and beneficially entitled or became the subject of a Tso following his death by reason of the 'transaction' the subject of the instrument registered in 1912. It appears that the appellant is entitled to appoint a successor to her late husband by way of adoption and it appears that the first respondent is entitled to be so adopted as the nearest male descendant in the male line from an ancestor common to himself and the deceased. Whether the properties became the subject of a Tso depends on what occurred in 1912, that is to say when the memorial was registered recording the appointment of the appellant and the two others, since deceased, as managers of what was then styled the "Li Wah Fuk Tso". The appellant in fact signed the memorial by affixing her mark thereto. It is suggested that the transaction, if one may call it such, was simply a means of assisting a young widow, as the appellant then was, in the management of the properties - particularly to assist her in enforcing collection of the rents, which otherwise as a young female she might find difficulty in collecting. This, in my view, is entirely inconsistent with the evidence of the expert witness, Mr. Akers-Jones, who said, in effect, that it was customary to form a Tso on the death of a male person dying without male issue. The other expert witness, Mr. Hu, corroborated that the expression 'Tso' when added to the name of a deceased person connotes that, by the custom prevailing in the New Territories, his property then becomes 'ancestral property', not merely that the deceased is dead. My impression is that the appeal is based on the misapprehension, in the face of the expert evidence, that the question whether or not property is Tso property is concluded by ascertaining whether it was Tso property as at the date of death of the deceased. [This is not to say that a living person may not, during his lifetime, create a trust to which section 15 of the New Territories Ordinance (Cap. 97) applies, as was held to have been done in the case of Chu Tak-hing & Others v. Chu Chan Cheung-kin & Others⁽¹⁾ (per Scholes J.) That however is not the present case and I mention it only because counsel for the appellant appeared to rely on it.] On the issue of a claim for a declaration as aforesaid, in my opinion, the appeal fails. It fails, I would emphasise, by reason of the expert evidence as it was adduced in the present case and which therefore the learned trial judge was entitled to accept.

8. The A.G. cross-appeals from the order made by the learned judge that the costs of the proceedings be paid by the two respondents; in what proportions he did not expressly state. In support, reliance is placed on section 44 of Cap. 97, which reads:-

44. Nothing in this Part shall be deemed to affect the interests of the Crown, or to confer a larger right in relation to any land than is granted in the Crown lease, grant or licence whereunder the said land is held; and no liability shall attach to the Land Officer, or to any Assistant Land Officer, or to the Government, or to the Crown, in respect of any act done or entry made by such Land Officer or Assistant Land Officer in the course of his duty."

The A.G. also relies upon the latter part of the proviso (b) to section 17 of the Crown Proceedings Ordinance (Cap. 300) which reads:-

17. In any civil proceedings or arbitration to which the Crown is a party, the costs of and incidental to the proceedings shall be awarded in the same manner and on the same principles as in cases between subjects, and the court or arbitrator shall have power to make an order for the payment of costs by or to the Crown accordingly:

Provided that -

	(a)	in the case of proceedings to which by reason of any enactment or otherwise the Attorney General is authorized to be made a party, the court or arbitrator shall have regard to the nature of the proceedings and the character and circumstances in which the Attorney General appears, and may in the exercise of its or his discretion order any other party to the proceedings to pay the costs of the Attorney General whatever may be the result of the proceedings; and
	(b)	nothing in this section shall affect the power of the court or arbitrator to order, or any enactment providing for, the payment of costs out of any particular fund or property, or any enactment expressly relieving any department or officer of the Crown of the liability to pay costs."

As to section 44 of Cap. 97 the argument for the Crown is that exemption from liability includes exemption from all forms of liability, including the consequential liability of costs; if an action against the Crown cannot succeed how can costs, a mere incident of liability, be awarded against the Crown? The contrary argument is that if the Crown chooses to defend a claim for a declaration on the merits the usual consequences as to costs must follow. Here it is important to observe that from the very commencement the Crown entered a caveat, as it were, the A.G.'s statement of defence expressly pleading reliance on section 44 of Cap. 97. As to proviso (b) to section 17 of Cap. 300 it is argued on behalf of the A.G. that section 44 of Cap. 97 is "an enactment expressly relieving any department or officer of the Crown of the liability to pay costs". Alternatively, it is argued for the A.G., inasmuch as before the Crown Proceedings Ordinance the rule was that the Crown neither paid nor received costs (see Johnson v. The King⁽²⁾) it would have required very plain enactment to impose liability for costs on the Crown in a case where it is exempt from liability (as under section 44 of Cap. 97); inasmuch as, at the time section 44 was enacted, not only was the Crown thereby exempted from liability in the suit but also, under the common law rule, was not liable for costs, plain words would have been required to impose liability for costs. It is argued for the appellant that this is precisely what section 17 of Cap. 300 did; further, that 'liability' in section 44 of Cap. 97 means a liability in damages, i.e. does not extend to costs.

9. We have been referred to no authority on the point, which is by no means free from difficulty. I have considered the case of R. v. Llanidloes Licensing Justices⁽³⁾) where the applicant moved for an order of mandamus against the justices and the justices failed to take advantage of a statute (the Review of Justices Decisions Act, 1872) under which they might have filed affidavits setting out their reasons for their decision but instead chose to appear by counsel to oppose the motion. The divisional Court held that the justices had thereby made themselves a party to the lis and thus rendered themselves liable to have an order for costs made against them. The circumstances of the present case, however, are different in that the A.G. was made a defendant by the appellant at the outset of the proceedings. The question then, as it appears to me, is this: does the A.G. by defending the proceedings render himself liable to costs if unsuccessful, or merely run the risk, if unsuccessful, of having to bear his own costs? The position can hardly be different according to whether the claim made is one for damages or one for a declaration, as it appears to me. I find it an attractive argument on the part of the A.G. that the overall exemption from liability brought about at the time of the enactment of section 44 of Cap. 97 (extending as such exemption did, in the then state of the law, to exemption from payment of costs) should not be held to have become partially whittled away by the Crown Proceedings Ordinance. Cap. 97 was, and remains, an enactment of particular application whereas Cap. 300 is a general enactment; section 44 of Cap. 97 would lose much of its virtue if whilst protecting the Crown from liability to damages it failed to protect it from a consequential burden such as costs, and I find it difficult to conceive that Cap. 300 had that, indirect, effect. I would also hold the case to fall within the spirit and intendment of proviso (b) to section 17 of Cap. 300. Nor do I think that it was necessary to make the Crown a party.

10. I would therefore dismiss the appeal with costs, and allow the cross-appeal with costs. In any event, a question arises as to the extent to which the Crown, as a second defendant concerned only with some of the issues, should be liable for the costs of the trial and of the cross-appeal.

	(R.H. Mills-Owens)
	Puisne Judge
	13th December, 1969

Representation:

Litton (Samuel Soo & Co) for Appellant

1st Defendant in person Stape, c.c., for 2nd Defendant.

(1) (1968) H.K.L.R. 542.

(2) (1904) A.C. 817.

(3) (1957) 2 All E.R. 610.

11504-EN-1969-12-13

LI TANG SHI v. LI WAI KWONG AND ANOTHER

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CACV000027A/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CIVIL APPEAL NO. 27 OF 1969

-----------------

BETWEEN
	LI TANG SHI	Appellant
		(Plaintiff)
	AND
	LI WAI KWONG	1st Respondent
		(Defendant)
	THE ATTORNEY GENERAL	2nd Respondent
		(Defendant)

Coram: Rigby, S.P.J., Scholes, J. and Mills-Owens, J.

Date of Judgment: 13 December 1969

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JUDGMENT

-----------------

1. I have had the opportunity of reading the judgment of my learned brother Mills-Owens J., and I concur with his judgment that the appeal should fail, and also with his reasons therefor.

2. However, in regard to the cross-appeal by the Attorney General, the 2nd defendant, from the order made by the learned trial judge that the costs of the proceedings be paid by the two respondents, I have come to a different conclusion from my brother.

3. At the trial the plaintiff sought orders and declarations against the 1st defendant, and declarations against the 2nd defendant. The 2nd defendant saw fit to contest the making of the declarations against the 2nd defendant, and in the event declarations were made against the 2nd defendant, and the learned trial judge, following the usual rule that a successful party is entitled to his costs, awarded costs to the plaintiff against the respondents.

4. Crown counsel on behalf of the 2nd defendant has sought to show on the cross-appeal that the 2nd defendant cannot be liable for costs on account of the provisions of section 44 of the New Territories Ordinance, Cap. 97, and that the word liability therein covers costs, which is a liability, and he further contends that, there thus being an express enactment that the 2nd defendant is not liable to pay costs, the matter falls within section 17 proviso (b) of the Crown Proceedings Ordinance, Cap. 300, it following that the 2nd defendant cannot be liable to pay costs. Section 44 of the New Territories Ordinance is as follows:-

the relevant part appearing after the semi-colon. Section 17 of the Crown Proceedings Ordinance states:-

	Provided that -
	(a) in the case of proceedings to which by reason of any enactment or otherwise the Attorney General is authorized to be made a party, the court or arbitrator shall have regard to the nature of the proceedings and the character and circumstances in which the Attorney General appears, and may in the exercise of its or his discretion order any other party to the proceedings to pay the costs of the Attorney General whatever may be the result of the proceedings; and
	(b) nothing in this section shall affect the power of the court or arbitrator to order, or any enactment providing for, the payment of costs out of any particular fund or property, or any enactment expressly relieving any department or officer of the Crown of the liability to pay costs."

5. Counsel for the 2nd defendant conceded that it was not the intention of the Legislature, when enacting section 44 of the New Territories Ordinance, to exclude the Crown from liability for the payment of costs, for the very good reason that in those days, under the common law, the Crown could not in any event be liable for the payment of costs; (see Johnson v. The King⁽¹⁾); but he contended that the word "liability" in the latter part of section 44 was wide enough to include costs. It appears from the Ordinance that section 44 was enacted in 1910, and amended in 1911 and in 1912, which of course was long before the common law rule was changed by legislation.

6. In my view it is important to note in section 44 the words "in respect of any act done or entry made by such Land Officer or Assistant Land Officer in the course of his duty." Giving the words in the section their plain meaning, it seems to me that the meaning of the word "liability" in the section is restricted by the words I have stated in inverted commas, so that the liability excluded, is only liability in respect of any act done or entry made by such officer in the course of his duty; and of course, as is conceded by Crown counsel, it was never the intention of the Legislature, when enacting this section, to exclude costs for contesting an action.

7. Turning to section 17 of the Crown Proceedings Ordinance, no point has been taken in regard to proviso (a) of the section, and I therefore make no further comment on it, counsel for the 2nd defendant relying on the argument that the 2nd defendant cannot be liable for costs, and contending that proviso (b) of section 17 applies.

8. It is clear from the provisions of section 17, apart from the two provisos, that the Crown may be liable to pay costs in civil proceedings; however proviso (b) specifies, inter alia, that nothing in the section shall affect any enactment expressly relieving the Crown of the liability to pay costs. In my view section 44 of the New Territories Ordinance does not expressly relieve the Crown of the liability to pay costs. I also think that the word "expressly" should not be ignored, but given its normal meaning.

9. For these reasons, in my opinion, the 2nd defendant is liable to pay costs, but before I would support the order for the payment of the costs of the trial by the 2nd defendant in this case, I would like to hear argument on the question, in the circumstances of this case, as to whether the 2nd defendant should pay the whole or a portion of those costs of the plaintiff; which may have a bearing also on the costs of the cross-appeal.

	(A.D. Scholes)
	Puisne Judge.

13th December, 1969.

(1) (1904) A.C. 817.