TO KIN WAH AND OTHERS v. TO KAM CHAU AND ANOTHER
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HCA 1603/2004
[2023] HKCFI 3238
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 1603 OF 2004
_______________________
BETWEEN | ||
| TO KIN WAH | 1st Plaintiff | |
| TO MEI LUN | 2nd Plaintiff | |
| TO SIU LAM | 3rd Plaintiff | |
| and | ||
| TO KAM CHAU | 1st Defendant | |
| TO KAN CHI | 2nd Defendant | |
______________________
| Before: | Hon B Chu J in Court |
| Dates of Trial: | 1, 2, 5 to 9, 12 to 14 and 16 June 2023 |
| Date of Judgment: | 18 December 2023 |
________________
JUDGMENT
_________________
_____________________
Table of Contents
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1. At the heart of this litigation is a Taoist temple known as Tsing Wan Kun (青雲觀), which is situated in Castle Peak, New Territories (“Temple”). Two earlier actions concerning the Temple were commenced some 30 years ago in the 1990s[1] (collectively “1990s Actions”) which culminated in a judgment handed down by Court of Final Appeal on 22 December 2000 (“CFA Judgment”)[2]. The 1990s Actions concerned the ownership of the Temple and its assets including proceeds from resumption of land by the Government and were initiated by the Secretary of Justice[3]. Subsequently, members of the TO Ka Yi Tso (陶嘉儀祖) (“Tso”) and the TO clan (“Clan”) became parties to those actions[4].
2. The TOs were said to be the first to settle in Tuen Mun and To Ka Yi, the “Focal Ancestor”, had 4 sons. The male heirs/successors of each son would be members of that branch or “fong” (房). The 4th “fong” had become extinct and the remaining 3 “fongs” are respectively the male heirs/successors of the eldest son To Chung Yan (陶松隱), 長房, (“1st Fong”), the second son To Chung Yun (陶松潤/浮翁), 二房, (“2nd Fong”) and the third son To Chung Yau (陶松友), 三房 (“3rd Fong”), and collectively they are referred herein as “3 Big Fongs”[5]. The Clan is made up of all male members of 5 villages, namely Nai Wai (泥圍), Tsing Tsuen Wai (青磚圍), Tuen Tsz Wai (屯子圍). Lam Tei Tsuen (藍地), and Sun Tsuen (新村)[6]. The Temple was found to be owned by a t’ong of the same name, namely Tsing Wan Kun, or Tsing Wan Kun t’ong (青雲觀堂) (“Tong”) whose members were/are the members of the Tso and the Clan[7].
3. In the 1990s Actions, the Tso was represented by its 3 managers, namely To Kam-Chau (or To Kam-Chow) (陶鑑籌)[8], To Kan-Chi (陶根池)[9] and To Fook-Tim (or To Fuk-Tim) (陶福添)[10], who were respectively from the 3 Big Fongs and who became managers of the Tso on about 12 September 1969 (“3 Tso Managers”), and the Clan was represented by 5 representatives, To Mei-Lun (陶美粦), To Cheong-Lam (陶昌林), To Siu-Lam (陶兆林), To Man-Hing (陶萬興) and To Muk-Tai (陶木泰) (“5 Clan Representatives”).
4. During the course of the 1990s Actions, the net resumption proceeds were ordered to be paid into court on 12 October 1995(“Funds”).
5. In the CFA Judgment, the following declarations were made[11]:
(1) The Temple and all its assets including the Funds are owned by the Tong, the members of which are the members from time to time of the Tso and the Clan;
(2) The Temple’s assets are, as they have been for centuries, devoted to the purposes of due observance of the customary ceremonies of the Temple and of maintenance of its temple buildings and temple properties. They will remain so devoted unless and until the Tong, proceeding in a manner which conforms with Chinese law and custom, withdraws them from devotion to those purposes. The Tong’s proprietary rights in the Temple’s assets are vested rights. Accordingly, the Tong is entitled to effect such withdrawal at any time provided that it does so in a manner which conforms with Chinese law and custom;
(3) The Temple, being a private temple owned by the Tong was/is a Chinese temple within the scope of the Chinese Temples Ordinance, Cap 153 (“CTO”), which applies to it.
6. After the Funds were ordered to be paid into court on 12 October 1995, they had remained being held by the court at the time of the handing down of the CFA Judgment. There had been a letter written to the court dated 14 February 2000 and signed by the 3 Tso Managers authorising the Funds (including any interests) to be released to the 5 Clan Representatives as trustees for the members of the Tso and the Clan[12]. Notwithstanding the said letter, there had been no release of the Funds to the 5 Clan Representatives.
7. It can be seen from the CFA Judgment that the Temple had never been registered under the CTO but as a result of legal advice, an application for its registration was lodged on 30 November 2000 during the course of the appeal to the Court of Final Appeal. In the CFA Judgment, the Court of Final Appeal had ordered a limited stay of the order for payment out of court of the Funds, in that save to the extent of an immediate payment out of HKD 40m in respect of costs, the order for payment out was stayed until 30 days after service of a copy of the CFA Judgment on the Chinese Temples Committee (“CTC”) under the CTO or further order in the meantime made on application to the Court of First Instance[13].
8. After the CFA Judgement, there was a celebration in the Temple in early 2001 around Chinese New Year and thereafter, a number of meetings had been held at the To Clan Ancestral Hall (“Ancestral Hall”) of the Temple concerning the follow up matters.
9. A meeting was held on 10 April 2001 (“10.04.01 Meeting”)[14], and the matter to be discussed as stated on the minutes was to “report on the Tsing Wan Kun case”. A further meeting was held on 27 April 2001 (“27.04.01 Meeting”)[15], and the matter to be discussed was stated to be “all matters of Tsing Wan Kun”.
10. This was followed by a meeting on 13 May 2001 (“13.05.01 Meeting”)[16] and the matters to be discussed were stated to be “all matters of Tsing Wan Kun (1) how to apply for refund of money (2) how to send representatives to be appointed as managers”. According to the minutes, amongst other things, it was resolved at this meeting unanimously with no objection that the 3 Tso Managers were appointed as managers of the Tong. Suffice to say at this stage, their appointment was challenged and led to subsequent litigations.
11. Thereafter a meeting was held on 25 May 2001 (“25.05.01 Meeting”)[17] and the matter to be discussed stated on the minutes was “general matter of Tsing Wan Kun (1) to register with the CTC (2) to apply to the Government for refund of the money”. It was recorded in the minutes amongst other things that it was resolved that 3 Tso Managers of the Tso should handle all monetary matters of the Temple.
12. At a further meeting of the Temple held on 12 August 2001 (“12.08.01 Meeting”)[18], the matter to be discussed was stated in the minutes as “(1) matter of the registration of the Tsing Wan Kun managers (2) the right of the management of Tsing Shan Monastery – report on the progress”. It was recorded in the minutes amongst other things that it was resolved that the 3 Tso Managers were to be registered with the Tuen Mun District Office as managers of the Tsing Wan Kun assets.
13. On 26 August 2001, the 3 Tso Managers sent a letter to the Tuen Mun District Office for their approval and registration of them as managers of the Tong under section 15 of the New Territories Ordinance, Cap 97 (“NTO”)[19]. This was accompanied by letters of consent signed by members of the Tso from the 5 villages on 26 August 2001 to indicate their consent to the appointment to the 3 Tso Managers as managers of the Tong under section 15 of the NTO (“Letters ofConsent ”)[20]. Upon receipt of the application letter, the Tuen Mun District Office posted up a notice on 2 November 2001 stating that any objection to the application of the 3 Tso Managers should be raised within one month[21]. Thereafter, there were 6 letters of objections sent by members of the Tso to the Tuen Mun District Officer. 3 of them were sent anonymous respectively on 17, 18 and 26 November 2001 and merely stating they were from members of the Tso/Clan (“Anonymous Objection Letters”)[22]. This was followed by 3 letters dated 22 November 2001 of same content but signed by different individual members of the Tso/Clan (“22.11.01 Objection Letters”)[23]. Although the members who had signed on the 22.11.01 Objection Letters (“Objectors”) were invited by the Tuen Mun District Office to attend a meeting, this invitation was declined.
14. The appointment of the 3 Tso Managers as managers of the Tong was subsequently approved and registered by the District Officer of the Tuen Mun Home Affairs Department on 2 January 2002 under section 15 of the NTO (they may be referred to hereafter simply as “Managers”)[24].
15. On 5 February 2002, the Managers commenced HCMP 509/2002 (“HCMP 509”) by way of an ex parte originating summons seeking release forthwith to them of the Funds[25]. In the supporting affirmation of To Kam-Chau[26], he had referred to the 12.08.01 Meeting and the separation of the Tong’s assets and properties in Enclosure 1 (as set out therein) from the rest, and apart from a sum of HKD 50 million be dedicated for temple purposes and payment of some small amounts, the Managers’ intention as regards the balance of the Funds (“Surplus Funds”) was not however set out clearly in that supporting affirmation[27].
16. The Managers’ application under HCMP 509 was opposed by various members of the Tong who were represented by To Kin-Wah (陶見華) and his father To Cheong-Lam, To Mei-Lun and To Siu-Lam (collectively referred to hereinafter as “Representatives”) on the ground that amongst other things, the appointment of the Managers did not comply with the requirement of Chinese law and custom which required unanimity and was thus invalid.
17. On 2 April 2002, To Kin-Wah issued an application for judicial review under HCAL 105/2002 against the decision of the Tuen Mun District Officer on 2 January 2002 in approving the appointment of the Managers as managers of the Tong (“JR Proceedings”). The defendants in the JR Proceedings were the Tuen Mun District Officer, and the 3 Managers.
18. On 28 June 2002, under HCMP 509, Yam J ordered that the Funds be released from the court and be paid to HSBC International Trustee Ltd (“HSBC Trustee”), to be held by HSBC Trustee on trust for the Tong pending further order of the court. As of August 2002, the Funds were over HKD 280 million.
19. A general meeting of all male descendants of Tsing Wan Kun was held on 27 June 2004 (“27.06.04 Meeting”)[28] which was attended by amongst others an officer of the Tuen Mun District Office. There was a commotion and/or a disturbance and police was called. As the two camps were not able to resolve their disputes, the Representatives commenced the present action HCA 1603/2004 on 8 July 2004 (“HCA 1603”) against the Managers to, amongst other things, challenge the validity of their appointment as managers of the Tong and to seek an injunction to restrain them from acting as managers of the Tong.
20. On 27 August 2004, the JR Proceedings were dismissed by Tang J, as he then was, pursuant to a judgment handed down by him on 27 August 2004 (“JR Judgment”)[29]. The subsequent appeal by To Kin-Wah to the Court of Appeal was dismissed on 12 January 2006 under CACV 368/2004 (“CAJR Judgment”)[30]. To Kin-Wah’s subsequent applications for leave to appeal to the Court of Final Appeal were eventually dismissed.
21. Thereafter, there was an attempt for a meeting to be held at the Ancestral Hall on 6 November 2006 (“06.11.06 Meeting”)[31] for various matters including the retrospective appointment of the Tong’s new solicitors in the JR Proceedings since 1 August 2006 and to report on the proceedings, interest income of the Funds, and all expenses, but due to commotion and disturbances allegedly caused by non-To members, the 06.11.06 Meeting had to be cancelled. A video was taken at this meeting (“06.11.06 Video”) which was played during the trial[32]. A meeting was eventually held on 22 November 2006 (“22.11.06 Meeting”)[33] during which, amongst other things, the Tong’s solicitor reported on the various litigations and legal costs, and also there was a report from the representative of the expert committee on the progress on the then renovation works of the Temple.
22. A further meeting was held on 19 December 2006 (“19.12.06 Meeting”) in relation to the renovation works and the costs involved, and the legal costs involved for any application to the court for release of funds for the renovation[34].
23. In the meantime, under HCMP 509 and HCA 1603, on 6 March 2008 (with reasons for judgment handed down on 8 April 2008), Yam J, amongst other things, dismissed the Representatives’ application for consolidation of the two actions. On appeal to the Court of Appeal, the Representatives offered a “practical solution”, namely if the Court of Appeal were receptive to their appeals, they would be willing to abandon the “hostile” elements in HCA 1603(namely those alleging misconduct on the part of the Managers) such that all the issues in that action would be non-hostile and would simply be formulations of the issues underlying HCMP 509[35]. Upon this indication, the Representatives and the Managers were able to reach a compromise, and consequently, directions were given by the Court of Appeal on 16 December 2008 for further conduct of the two actions HCMP 509 and HCA 1603, including that the two actions be tried together, amendment of pleadings and for pre-emptive costs orders for legal costs to be paid out of the Funds held by the HSBC Trustee[36] (“CA 2008 Directions”).
24. There was however a long lapse of another 15 years before the present trial eventually took place.
25. In the intervening years, one of the Managers To Fook-Tim passed away on 11 October 2009 and by order of Yam J dated 7 June 2011, To Fook-Tim ceased to be a party in this action HCA 1603 which was ordered to continue without adding his personal representative, and the two present defendants are To Kam-Chau and To Kan-Chi (respectively “D1” and “D2”, and collectively “Ds”). To Cheong Lam-had also passed away leaving presently only three of the original plaintiffs To Kin-Wah, To Mei-Lun and To Siu-Lam (respectively “P1”, “P2”, “P3”,and collectively “Ps”) as the Representatives. Ds’ expert witness on Chinese law and custom Professor Anthony Dicks also sadly passed away in early November 2018.
26. At a hearing for directions/case management conference on 25 January 2021 before Wilson Chan J, Ds indicated that they no longer wished to proceed with their application under HCMP 509 for distribution of the Surplus Funds, and the issues to be tried were then substantially narrowed down to the validity of the appointment of the Managers in 2001, although Ds recognised that the issue as to how to properly utilise the Surplus Funds would have to be resolved[37]. Ds’ change of stance was reiterated at the directions hearing before Wilson Chan J on 29 June 2021. As a result, whether the Managers were validly appointed and the use of the Surplus Funds became the main issues for trial. In light of Ds’ current stance, at the case management conference before this Court on 25 January 2022, notwithstanding the CA 2008 Directions, HCMP 509 was adjourned sine die pending the this Court’s determination of the agreed disputed issues in HCA 1603.
C. ORDERS SOUGHT BY THE PARTIES
27. Ps have clarified in their opening submissions that they are no longer seeking an injunction to restrain Ds from claiming to be and/or acting as managers of the Tong. What they seek at trial are as follows:
(1) a declaration that the Ds have not been validly appointed as managers of the Tong;
(2) an order that the trusts affecting the assets of the Tong and the Tso should be administered by the Court, together with all necessary and consequential accounts, inquiries and directions:
(i) the appointment of fit and proper persons to be the managers and trustees of the assets of the Tong;
(ii) alternatively, the appointment of a “Judicial Trustee” to take into safe custody the assets of the Tong and administer them under the directions of the Court;
(iii) in the further alternative, a scheme for application of the assets of the Tong for the “Primary Purpose” and the “Secondary Purpose”, as defined hereafter.
28. In the amended statement of claim (“ASOC”), it was pleaded by Ps that according to Chinese law and custom, any monies of the Tong, including any income arising from the land belonging to it and any donations which were not provided for any more specific purpose, should be dedicated to the primary purpose of maintaining and enhancing the Temple and supporting the worship and other activities traditionally carried out there (“Primary Purpose”), and any surplus monies of the Tong which are not required for the Primary Purpose, should be dedicated to projects of activities of a similar character beneficial to the present and future members of the Tong, that is to say, the present and future members of the Tso and the Clan (“Secondary Purpose”)[38].
29. Ds deny that they were not validly appointed as managers of the Tong. It was also their case in the amended defence (“AD”) amongst other things, that at the 12.08.01 Meeting, it was unanimously resolved to withdraw the Funds, and to retain HKD 50m for the maintenance of the Temple and its worship, and then to distribute the Surplus Funds equally to all members of the Tong in cash[39].
30. Mr John McDonnell KC and Mr Jeffrey Chau appeared for Ps at the trial, and Mr Chan Chi Hung SC, Mr K Chan and Ms M Chan appeared for Ds.
D. CURRENT ASSETS OF THE TEMPLE
31. According to Ps, the assets of the Temple consist of:
(1) Funds held by HSBC Trustee – HKD 113,038,261.64 as at 31 March 2023[40]
(2) 2 properties on 2nd and 3rd floor, Black H, No 6, Lee Fat Road, Tuen Mun, of which the Tong is the registered owner
(3) Landed properties of various lots in DD 131 and DD 132, of which the Tong is the registered owner
(4) Capital and income accruing to the Tong from usage of Lot No 559 of DD No 131 (as a columbarium or otherwise) - unaccounted for by Ds but alleged by Ps to be up to HKD 100m for sale of niches
(5) Capital and income (including donations) accruing to the Tong from usage of the landed properties (as a temple or otherwise) – unaccounted for by Ds but alleged by Ps to be estimated at approximately HKD 1m per annum
32. By end of March this year, prior to this trial, the Funds held by HSBC Trustee had dwindled to HKD 113 million from over HKD 280m in August 2002.
33. There are a total of some 12 issues in the Scott schedule (“Scott Schedule”), which can be broadly grouped into the following 3 categories:-
(1) The validity of the appointment of Ds as the Managers of the Tong (“Category (I)”) – Issues 3, 5, 6, 7, 8, 9, 10, 11 of the Scott Schedule
(2) The purposes for which the Funds/Surplus Funds of the Tong can be applied for (“Category (II)”) – Issues 1, 2 and 4 of the Scott Schedule
(3) Whether the trusts affecting the assets of the Tong , of any of them, should be administered by the Court (“Category (III)”) – Issue 12 of the Scott Schedule
34. On Ps’ side, there were originally 14 factual witnesses who had provided signed witness statements in January/February 2010 for Ps. At the trial, a total of 8 factual witnesses were called, who were in the order of their being called, were P3 To Siu-Lam (陶兆林) (PW1), To Kam-Cheung (陶錦祥) (PW2), To Chi-Tsuen (陶志全) (PW3), To Kai-Wah (陶啓華) (PW4), To Che-Ming (陶志明) (PW5), To Cheuk-Wing (陶焯榮) (PW6), P1 To Kin-Wah (陶見華) (PW7), and P2 To Mei-Lun (陶美粦) (PW8).
35. Even though they are named as plaintiffs and are parties in this action, P1 To Kin-Wah and P2 To Mei-Lun only attended the trial to be cross-examined after P had applied for leave to issue a writ of subpoena respectively against them.
36. All the witness statements of Ps’ witnesses were lodged in January/February 2010, some 9 years after the events in 2001. P3 To Siu-Lam was a key witness who had provided a 37 page long witness statement. Some of Ps’ witnesses had stated in their respective witness statement that they had had read to them P3’s witness statement and that they had no reason to disagree with it (“No Disagreement Statement”), but during the trial, most of them had admitted they had no direct or first hand knowledge of the matters mentioned by To Siu-Lam.
37. According to To Siu-Lam, at the time of his witness statement he was considered a “village elder”[41] of the Clan and the village head/representative of Tuen Mun Sun Tsuen to the Rural Affairs Committee of Tuen Mun, and that he had held that position since 1985. He was one of the 5 Clan Representatives representing the Clan in the 1990s Actions, and he is a member of the 2nd Fong.
38. PW2 To Kam-Cheung also described himself to be a “village elder” of Tuen Mun Sun Tsuen. He is also a member of the 2nd Fong. He and his family migrated to Australia in 1987, and thereafter only returned to Hong Kong for holiday/personal business. He was in Hong Kong at the time of preparing his witness statement, but prior to that, he returned only in 2006. He was not in Hong Kong in 2001, and according to him, no one had informed him of any meetings of the Tso or the Tong, and that he only learnt about matters of the Tso and the Tong in 2007-2008 through To Siu-Lam who was the village head and who had emailed to him various documents.
39. PW3 To Chi Tsuen was a former civil servant working as a foreman and he retired in April 2004. His father To Kan-Tai (陶根大), was a former elder of the 2nd Fong (二房房長), also had passed away on 29 July 2009.
40. PW4 To Kai-Wah’s father was To Cheong-Lam who had a total of 6 sons including P1 To Kin-Wah, and To Sze-On (陶仕安). To Cheong-Lam was one of the 5 Clan Representatives in the 1990s Actions. He and his sons/heirs are members of the 2nd Fong of the Clan and they are from the Nai Wai Village. As had been found by Tang J in the JR Judgment, To Cheong-Lam was the moving force behind the 22.11.01 Objection Letters[42].
41. PW5 To Che-Ming is a member of Lam Tei Tuen Mun Sun Tsuen, and a member of the 2nd Fong. It was his written evidence that he did not attend any of the meetings in 2001 as he was working most of the time in Kowloon[43].
42. PW6 To Cheuk-Wing is a member of the 1st Fong belonging to the village Tsing Tsuen Wai and he was 68 years old at the time of his witness statement and was considered an “elder”. It was PW6’s written evidence that he did not participate in any kind of events of the Clan including the meetings at the Ancestral Hall.
43. PW7 To Kin-Wah, as said, is a son of To Cheong-Lam, and was in fact the applicant in the JR Proceedings.
44. PW8 To Mei-Lun was one of the 5 Clan Representatives in the 1990s Actions. He came from the Tsing Tsuen Wai Village, and he is a member of the 1st Fong of the Clan.
45. 7 factual witnesses had provided witness statements for Ds in January/September 2010. In the end, 5 attended the trial to be cross-examined. D1 To Kam-Chau was the only one of Ds and the only one of the 3 Managers who attended trial. At the time of the trial, he was 86 years old. He had provided two witness statements in support of the Managers’/Ds’ case. As said, one of the Managers To Fook-Tim had passed away. The other Manager To Kan-Chi, although named as D3 and had previously provided a withness statement, did not attend the trial.
46. DW2 To Sheck-Yuen (陶錫源), was a member of the District Council in Tuen Mun. He is a member of the 1st Fong and one of the sons of To Fook-Tim[44]. DW2’s 2nd elder brother was To Woon-Lam (陶煥林) who had also passed away in 2016[45].
47. DW3 To Yun-Kam (陶潤錦), also known as Billy To (“Billy To”), had attended the 13.05.01 Meeting, the 12.08.01 Meeting, the 27.06.04 Meeting, and the 22.11.06 Meeting. DW4 To Kim-Hung (陶劍雄) had attended at least 7 meetings, ie the 10.04.01 Meeting, the 27.04.01 Meeting, the 13.05.01 Meeting, the 12.08.01 Meeting, 27.06.04 Meeting, 06.11.06 Meeting and the 22.11.06 Meeting. DW5 To Kin-Lun (陶劍倫) had also attended the two April meetings in 2001, the 12.08.01 Meeting, and the 06.11.06 Meeting. They all attended trial to be cross examined.
F.3 The parties’ respective expert witnesses
48. Professor Dicks was the first expert appointed on behalf of Ds, and he had prepared a solo report dated 20 February 2004. Ps’ expert Professor Hugh Baker had prepared a preliminary report on 12 August 2005 and later submitted a report on 8 January 2010 Professor Dicks and Professor Baker provided a joint report dated 17 May 2011 (“1st Joint Report”)[46]. It appeared when Professor Dicks became unwell, Ds had initially instructed Professor Chang Wejen who provided a solo report on 12 April 2017. Subsequently Ds decided to instruct Professor Michael Palmer who produced initially a draft report in HCMP 509 dated 28 may 2017[47] and later submitted a solo report dated 20 July 2021, and a further note of 20 July 2022. There was no joint report submitted by Professor Palmer and Professor Baker.
49. Professor Baker attended trial to give oral evidence on behalf of Ps. Professor Palmer gave evidence through VCF on behalf of Ds.
G.1 Issue 3 and Issue 5 of the Scott Schedule
50. Issue 3 of the Scott Schedule is on what rules or principles govern the appointment of the managers of the Tong. Issue 5 is whether the appointment of the managers of the Tong was/is government by Chinese law and custom.
51. Ps’ pleaded case in paragraphs 7 and 8 of their ASOC is that matters of the Tong, including the appointment of its managers, were/are governed by Chinese law and custom and that according to Chinese law and custom, any resolution proposed in general meeting of the Tong (including the resolution to appoint the Tong’s managers) can only be passed if it is unanimously supported by the members of the Tong or alternatively, the passing of resolution requires some form of unanimity. These were also their averments under Issue 5 in the Scott Schedule, Ds have denied in their AD that the appointment of managers of the Tong was/is governed by Chinese law and custom.
52. In Ps’ Amended Reply[48], Ps’ expanded their case to aver that the appointment of managers the Tong was/is governed by Chinese law and custom, including the custom of the Clan and the Tong. And they have set out the “Equal Representation Principle” and the “Autonomy Principle” according to the custom of the Clan and the Tong, and their averment under Issue 3 is that the custom of the Clan and the Tong are to apply to the appointment of the managers of the Tong. It is Ps’ case under Issue 3 that the appointment of the Managers at the 13.05.01 Meeting infringed the Equal Representation Principle and the Autonomy Principle and was not unanimous.
53. During the trial, To Kam-Chau had agreed with the Autonomy Principle and the Autonomy Principle under the local custom of the Tso and the Clan, namely he had agreed that (i) each of the 3 Big Fongs should have equal say in respect of important matters affecting the Clan and the Tong;(ii) each of the 3 Big Fongs should have full autonomy in managing their own affairs; (iii) each Fong’s affairs shall not be interfered with by any other Fong or members of other Fongs; (iv) the number of managers from each of the 3 Big Fongs should be equal; (v) who are going to be managers from a particular Fong is a matter to be entirely decided by that Fong[49].
54. In fact, the Autonomy Principle and the Equal Representation Principle under the custom of the Tso and the Clan were reflected in what had been set out in an old accounts book of the Tso/Clan dated around 1880 (陶五柳堂均派三房分理糧務嘗產登記簿) (“OldAccounts Book”)[50], and appeared to be the same book referred to by To Siu-Lam in his witness statement the “Management Right of the 3 Branches of the To Ng Lau Tong”[51].
55. Further, in the JR Judgment, the then counsel for the applicant To Kin-Wah had relied on the so called “Equal Representation Principle” and the “Autonomy Principle” in arguing the Discrepancy point (as defined later). Tang J, as he then was, had pointed out that each of the Managers appointed had come from a separate Fong, and so equal representation of the Fongs was in fact maintained, and as for “selection” by each Fong separately, this would be done by consensus and in any event since the decisions at all the meetings were made unanimously, Tang J did not think it mattered whether they were selected each by his own Fong or by general acclamation, and Tang J had found that there was no suggestion that the 3 Big Fongs were not represented at those meetings.
56. As the 3 Managers appointed had each come from a separate Fong, there was clearly no infringement of the so-called “Equal Representation Principle”. To Kam-Chau had in fact indicated during the 10.04.01 Meeting that he had tendered his resignation as one of the 3 Tso Managers (although during the trial he said he was only proposing to do so at that time) and that he stated that he hoped that the 2nd Fong would nominate one of the descendants of the 2nd Fong to be one of the managers. There was no evidence that this was done by the 2nd Fong. There was also no sufficient evidence that any failure on the part of the 2nd Fong to nominate someone other than To Kam-Chau, had anything to do with To Kam-Chau. Further, that there was no other person nominated for the 2nd Fong this would not mean the appointment of the 3 Tso Managers as the managers of the Tong had infringed the so called “Autonomy Principle”. There was in fact no sufficient evidence that there had been any infringement of the so-called “Autonomy Principle” by the appointment of the Managers during the 13.05.01 Meeting.
57. To Kam-Chau had also been asked during the trial whether the question of appointment of the managers of the Tong was governed by the Chinese law and custom, to which he had agreed[52]. In light of his answer, it would appear that Issue 5, namely whether the appointment of the managers of the Tong was governed by Chinese law and custom, would seem to be no longer be a disputed issue between Ps and Ds, save subject to what the experts had to say.
58. To Kam-Chau had also been asked by Mr McDonnell whether according to Chinese law and custom, unanimity was required for resolutions proposed at general meetings of the Tong. This should in fact be a matter for the experts, and this Court directed that the witness should be made aware of which part of his written evidence that he was being cross-examined when he was asked that question. To Kam-Chau was then directed to paragraph 41 of his witness statement where he had said that “Insofar as the Managers can remember, there is no such custom in the Tso and/or Clan and/or Tong to say that the election of managers must be unanimous…”[53], which was then interpreted to him, to which he had answered “right”[54], namely confirming his written evidence. Further, when later asked by Mr McDonnell, whether unanimous consent was required for the appointment of managers of the Tong, To Kam-Chau’s answer was that there was no need to have unanimous consent, and it was by election and the minority should follow the decision of the majority[55].
59. To Kam-Chau’s answers clearly indicated that there was no agreement on his part to the so called “Unanimity Principle”, or that the election of managers in the Tso/Clan/Tong must be unanimous, as submitted by Mr McDonnell[56]. The “Unanimity Principle” whether under Chinese custom and law or under the custom of the Tso/Clan remained very much a disputed issue between Ps and Ds in the trial.
G.2 Whether Ps had ulterior motive
60. It was submitted on behalf of Ds that the objection of the 5 Clan Representatives and their associates was clearly with an ulterior motive to wrest sole control over the Funds, and their actions were in line with their argument that the 5 Clan Representatives should be given the control over the Funds because they were the steering committee in charge of the litigation leading to the CFA Judgment whilst the 3 Tso Managers were merely nominal plaintiffs and never an active party therein[57].
61. In the JR Judgment, Tang J , as he then was, had set out the background to the JR Proceedings in paragraph 3 of the JR Judgment stating , amongst other things, that :
(1) There were allegations and counter-allegations by the 3 Tso Managers and the 5 Clan Representatives, in particular To Cheong-Lam, over the management of some of the funds of the Temple/Tong, in particular the funds raised for the prosecution of the 1990s Actions.
(2) Underlying the JR Proceedings was the fight for the control over the considerable funds of the Temple/Tong.
(3) Paragraphs 13 and 14 in the Objection Letters to the District Officer over the appointment of the 3 Tso Managers as managers of the Tong provided some insight into the dispute.
62. The fight for control over the Funds was clearly the underlying motive and dispute on both sides. What seemed clear was that after the CFA Judgment, there was discord between the 3 Tso Managers and/or those they represented and the 5 Clan Representatives and/or those they represented. As seen in the 10.04.01 Meeting, the 5 Clan Representatives were asked to render proper account in respect of the 1990s Actions and the loan mentioned therein and one of the suggestions at that meeting was to form a committee to handle the property and assets of the Temple with representatives to come from each fong. In other words, the control of the Funds was proposed to be removed from the 5 Clan Representatives and thus each side was in fact wresting control of the Funds from the other side. In any event, whether there was any ulterior motive on the part of Ps or not, even if the appointment of Ds as the Managers was held to be invalid, it would not necessarily mean that Ps or those they were representing, or the Objectors would be elected or appointed as managers of the Tong, or that they would be able to obtain control of the Funds. I do not think Ds’ submissions on Ps having ulterior motive would advance Ds’ case any further.
G.3 Whether res judicata and/or abuse of process
63. There was no dispute on the legal principles on res judicata and abuse of process (or the Henderson v Henderson abuse), set out in Ps’ Closing Submissions.
64. Mr McDonnell had pointed out that the applicant in the JR Proceedings was To Kin-Wah who was making the application in his personal capacity against the Managers, who were 3 out of the 4 respondents and they were sued in their personal capacities[58]. The present action HCA 1603 was commenced on 8 July 2004 by To Kin-Wah as sole plaintiff in his personal capacity, and the Managers were the defendants sued in their capacity as the registered Managers of the Tong and in their personal capacities as members of the Tong[59]. Later on 3 November 2008, the other plaintiffs in the present action HCA 1603 were added. Pursuant to CA 2008 Directions, the 2nd to 4th plaintiffs in the present action were appointed to represent for the purposes of this action all of those members who contend that the Managers had not been validly appointed as the managers of the Tong or oppose the immediate distribution of the Funds and members yet unborn, and that the defendants of this action to represent all of the remaining members of the Tong. Having considered this, I agree with Mr McDonnell’s submissions that the present parties in this action are not privy to the JR Proceedings.
65. The JR Proceedings were administrative proceedings to challenge the approval and registration of the Managers by the District Officer. In the present action, Ps are challenging the validity of Ds’ appointment, and even though the factual basis is the same, I am of the view that there is no overlap of the causes of actions in the two sets of proceedings.
66. As to whether there is issue estoppel, at the hearing before Tang J, the applicant did not rely on any Chinese law and custom, which was specifically said to be left to other proceedings between the parties[60]. Further, as set out in paragraphs 18-20 of the CAJR Judgment, the focus of the hearing before Tang J was that the District Officer had failed to appreciate an important discrepancy between the 05.05.01 Notice and the 13.05.01 Resolutions, namely the proposal to appoint two representatives from each of the 3 Big Tongs, namely 6 persons, to be managers in the 05.05.01 Notice and the resolution at the 13.05.01 Meeting was to appoint only three managers (“Discrepancy”). Tang J had held that the Tso members would not regard the Discrepancy as significant or that the Discrepancy had rendered the 13.05.01 Resolutions or 12.08.01 Resolutions or the overall appointment process unfair.
67. At the appeal, as seen in the CAJR Judgment, the focus was shifted and that essentially two grounds of appeal were advanced, namely the District Officer had (i) misdirected himself and (ii) failed to consider procedural irregularity in respect of the notice of meetings and the decisions in the meetings, but as pointed out by the Court of Appeal, (ii) was a repeat of the Discrepancy point. In any event, these grounds were rejected and the appeal was dismissed.
68. It was submitted by Mr Chan SC on behalf of Ds that there was abuse of court process on the part of Ps as the issues relating to the appointment of the Managers, namely items 3,5,6,7,9,and 11 of the Scott Schedule had already been or should have been determined in the JR Proceedings and these issues raised now amount to a collateral attack on the decisions which had already been made, in respect of the issues of (1) the 13.05.01 Resolutions were contrary to the 27.04.01 Resolutions: (2) the appointment was not unanimously supported by the members of the Tong; (3) the appointment was invalid because it was contrary to what was stated on the 05.05.01 Notice. (1) and (2) are in respect of the Discrepancy.
69. Ps accepted that there had been findings by Tang J in the JR Proceedings of certain factual matters, but submitted that they were not issues forming necessary ingredients in the cause of action that had been litigated and decided and should not support an issue estoppel. In the JR Proceedings it had been held that the Discrepancy would not have rendered the appointment process to be unfair. Although Tang J found that the decisions at the meetings were unanimous, it appeared he was referring to there being no objection from those who had signed for attendance at the meetings and there was unanimity at the meetings. Those factual findings should not support an issue estoppel.
70. Mr Chan SC had also referred the Court to Tang Man Kit and Another v Hip Hing Timber Co Ltd 13.05.05, CACV 137/2002 in which the Court of Appeal had said was that until such time as the approval by the District Officer was set aside, it was not open to anyone to litigate on the issue again and to challenge the status of the managers. However, in that case, the issue was whether the plaintiffs being managers of the “Heung” had the authority to sue, and this in turn depended on the status of the “Heung”, and as subsequently the “Heung” had been recognised by the District Officer as a t’ong under section 15 of the NTO, and once it was recognised as such, the managers of the “Heung” were approved and registered by the District Officer as managers under section 15 of the NTO. In my view, the circumstances of that case were different from those in the present action, and what was said by the Court of Appeal had to be seen in that light.
71. As to whether the appointment of the Managers was in accordance with the custom of the Clan or the Tso had been duly considered by the Court of Appeal in the JR Proceedings, what the Court of Appeal had said was that based on the existing authorities the District Officer had to consider the internal regulations of the Tso/Tong in deciding whether the Managers were properly appointed or not[61]. As there was a clear statement from the Managers that their appointment was in accordance with the custom of the Clan, it was held by the Court of Appeal that in absence of contrary evidence from the objectors, the District Officer could not be faulted in not finding out what this custom was[62].
72. It was submitted by Mr Chan SC that the applicant had obtained a Chinese law and expert report for the JR Proceedings as early as 14 January 2003 and that it was the applicant’s deliberate decision not to adduce evidence of any custom or tradition either on the appointment or selection of managers. That this was a deliberate decision was made clear on behalf of the applicant at the hearing before Tang J, when it was indicated by Ps that this could be left to other proceedings between the parties[63].
73. In any event, there was never an application by Ds to strike out Ps’ pleadings in present action on issue estoppel and/or abuse of court process.
74. The onus was on Ds to establish res judicata /cause of action estoppel/issue estoppel, and/or that the present action was an abuse of process. Having considered the circumstances of the JR Proceedings and the present action, I am not satisfied that Ds have discharged the burden on them.
G.4 Issues 6, 7 and 9 – “Unanimity Principle”
75. Issue 6 of the Scott Schedule is whether unanimity required for the passing or resolutions at general meetings of the Tong. Issue 7 is whether unanimous consent is required for the appointment of the managers of the Tong. Issue 9 is whether Ds were validly appointed as the managers of the Tong at the 13.05.01 Meeting.
G.4.2. The Meetings, Letters of Consent and the Objection Letters
10.04.01 Meeting
76. This meeting was not referred to in the JR Judgment or the CAJR Judgment, nor was it referred to in Counsel’s Closing Submissions. No notice for this meeting had been produced. P3 To Sui-Lam was however cross-examined over his attendance at this meeting which he had denied.
77. According to the copy of the minutes produced[64], there were 35 members who signed on the attendance record including To Kam-Chau (DW1)[65], To Sheck-Yuen (DW2), To Yun Kam (DW3), To Kim-Hung (DW4) and also to Kin-Lun (DW5). It was not disputed that the member who recorded the minutes was To Sheck-Yuen.
78. To Siu-Lam denied attending the 10.04.01 Meeting although it was recorded in the minutes that he had reported at that meeting that due to a conflict of roles on the part of the barrister Chan King Sang (Edward Chan SC), the funds of Tsing Wan Kun had to be dealt with after 18 April 2001. When asked during the trial, To Siu-Lam maintained that he was not present at that meeting and said he was in no position to comment or criticize on what a barrister was to do or not , and it was not possible for him to understand what a barrister needed to do.
79. On the other hand, it was To Sheck-Yuen’s written evidence that he duly recorded what was said by P3 at the meeting and that it was a contemporaneous record of the same. It was also To Sheck-Yuen’s evidence that during meetings held by the Tong, members would always be at their free will to choose whether to sign their names for attendance on the minute record book or not.
80. As seen in the minutes of the 10.04.01 Meeting, there appeared to be no resolutions passed at this meeting and the minutes only showed a record of information and suggestions provided at the meeting. It was recorded as that in the course of the litigation (presumably the 1990s Actions), solicitors advised to send out representatives with the Government (presumably with CTC under the CTO in November 2000 as referred to in the CFA Judgment) and due to time constraint, registration was made in the name of the 5 Clan Representatives, and at the meeting, amongst other things, it was recorded that (i) To Wing-On provided information that the CTC suggested to have the application signed by the 3 Tso Managers; (ii) To Wing-On suggested to form a committee to handle the property and assets of the Temple/Tong with representatives to come from each fong; and (iii) To Kam-Chau offered opinion for the 5 Clan Representatives to render proper account in respect of the litigation[66].
81. To Siu-Lam is of the 2nd Fong. He was very much involved in the 1990s Actions, and in his own witness statement, he had mentioned (i) the repayment of the loan of HKD 20m to lenders who lent money for the 1990s Actions from the amount of HKD 40m returned to the 5 Clan Representatives by their solicitors after the CFA Judgment and (ii) a further refund of HKD 2.5m to the Tso ,which was effected on or around 26 March 2001[67]. To Siu-Lam also mentioned in his witness statement that the Court of Final Appeal had given 30 days to the CTC as to whether they would consider to intervene and to take over the Temple under the CTO, and that there were at least two extensions of time for CTC to consider their stance, and that he understood that the CTC in the end gave up intervening in the matter[68].
82. To Siu-Lam’s written evidence demonstrated that he was fully aware of all the necessary follow up matters after the CFA Judgment. It did not seem probable that there could be a meeting to “report on the Tsing Wan Kun case” without any participation of the 5 Clan Representatives. To Siu-Lam had accepted during the trial that he was free to sign or not on the minutes record and/or to agree or not to the resolutions at that meeting.
83. Although To Siu-Lam’s signature did not appear on the minutes record book, as he was one of the 5 Clan Representatives, and a Village Representative, there was no reason why To Sheck-Yuen would have made a mistake about his identity or a mistake about his attendance. Further, To Sheck-Yuen was not cross examined in relation to any inaccuracies in those minutes of the 10.04.01 Meeting as recorded by him.
84. Having considered the evidence, I find it more probable than not that To Siu-Lam was present at that meeting even though he did not sign for attendance. In fact, the 35 signatures of members who attended this meeting appeared to include To Ka Tak (陶家得), To Kap Po (陶甲保) and To Kam Wah (陶金華) who had originally provided witness statements for Ps. They were members of 2nd Fong. They were in the end not called to be cross examined and their written evidence was not admitted. I am of the view that in any event, To Siu-Lam and/or the others of the 5 Clan Representatives must be aware that there were follow up matters after the CFA Judgment, and there was no evidence to show that they themselves had taken any steps to call for any meetings to deal with the follow up matters.
27.04.01 Meeting
85. It was also To Siu-Lam’s evidence that he did not attend the 27.04.01 Meeting. The minutes of that meeting were again recorded by To Sheck-Yuen[69]. There were 39 signatures of attendants on the minutes. There were two proposals, “(1) From 5 villages, one representative from each village to be elected as manager of Tsing Wan Kun, a total of 5 managers; (2) Managers to be appointed from the 3 Big Fongs, 2 representatives from each Fong totalling 6”. It was recorded that the 2nd proposal was resolved unanimously with no objection, and that it was further resolved that the next meeting was to be held on 13 May 2001 and notice was to be given in the name of the 3 Tso Managers, and that the then “duty manager” for that year of each of the 3 Big Fongs was requested to call for its own meeting and to send 2 representatives to be the managers of the Temple/Tong to be submitted to the District Office for registration (“27.04.01 Resolutions”). It was also recorded that To Wing-On suggested that each Fong should send as soon as possible managers to be registered and to deliver the list of names to the CTC. Tang J in the JR Judgment had observed that although no notice convening the 27.04.01 Meeting had been produced, it had not been suggested that the notice was in any way defective[70].
86. Even though there was no sufficient evidence that To Siu-Lam had attended the 27.04.01 Meeting, it did not seem probable that he had not heard about such a meeting being held whether he actually saw the notice or not, as 3 of the 5 Clan Representatives namely To Mei-Lun, To Man-Hing and To Muk-Tai had attended the 27.04.01 Meeting as well as To Kai-Wah and also the 3 membrs earlier mentioned who provided witness statements for Ps but who were not called in the end. Anyway, according to the written evidence of To Kai-Wah, there was a notice posted up at the Nai Wai Village notice board in or around April 2001 by the 3 Tso Managers about the 27.04.01 Meeting and To Kai-Wah had attended that meeting[71]. To Kai-Wah is a member of the 2nd Fong. As set out earlier, his father was To Cheong-Lam (one of the 5 Clan Representatives) who had 6 sons, including To Kai-Wah, P1 (To Kin-Wah, the applicant in the JR Proceedings), To Yat Chor (陶日初)[72] and To Sze-On, and they and their parents were all living at 157, Nai Wai Village between 2001 and 2004.
87. To Kai-Wah’s written evidence of the 27.04.01 Meeting was that what was discussed was about the management of the Temple/Tong and not appointment of managers, and that there was no discussion at the meeting of those matters recorded in the minutes[73]. He had also mentioned amongst other things that what was said by To Kam-Chau at the meeting was that each fong should send 2 representatives to manage the affairs of the Tong, but not as managers of the Tong.
88. Whether there was discussion of any matter or not, it was Ps’ own case that during the 27.04.01 Meeting, the 27.04.01 Resolutions were unanimously passed[74]. In fact, it was accepted by Ps that the notice and resolutions passed at this meeting were “entirely in accordance with the custom of the To Clan” and (1) the Unanimity Principle (2) the Equal Representation Principle and (3) the Autonomy Principle[75]. Ps’ case on the “Unanimity Principle” was thus rather confusing in that in their ASOC, they referred to “unanimous support by members of the Tong” and not simply unanimity of members who attended the meeting. Anyway in light of the 27.04.01 Resolutions, after the 27.04.01 Meeting, the “duty manager” of each of the 3 Big Fongs should be immediately calling a meeting of the members of their respective Fong to nominate 2 persons as managers of the Tong as the next meeting on 13 May 2001 was only about 16 days away.
89. According to To Kai-Wah, he had never told anyone else about what happened at the meeting or discussed with any member of his family. To Kai-Wah was living at the same address as To Kin-Wah and their mother and their father To Cheong-Lam and their brothers. It did not seem probable that To Kai-Wah would not have mentioned what happened at the 27.04.01 Meeting to his other family members.
90. As had been pointed out by Tang J in the JR Judgment, using common sense, he did not believe it probable that To Cheong-Lam who drafted and instigated the Objection Letters was unaware of the 27.04.01 Meeting, or the subsequent 13.05.01 Meeting and the 12.08.01 Meeting[76]. He also did not believe that To Kai-Wah would not have told To Kin-Wah about what happened at the 27.04.01 Meeting and the 13.05.01 Meeting[77]. I agree with what was found by Tang J.
91. As said, 3 of the 5 Clan Representatives had also attended the 27.04.01 Meeting. It was not probable that the 5 Clan Representatives were not aware of the 27.04.01 Resolutions. Yet, as Tang J had pointed out, there was no evidence that any of the 3 Big Fongs had met, prior to the 13.05.01 Meeting and to “send out” any representative to serve as managers of the Tong. In particular, notwithstanding To Kam-Chau had suggested that the 2nd Fong to nominate a person to replace him, there was no sufficient evidence that the members of the 2nd Fong had elected and/or nominated any replacement or any other representatives to attend the 13.05.01 Meeting even though To Cheong-Lam and his sons are from the 2nd Fong, so are To Siu-Lam, To Che-Ming (PW5), To Chi Tsuen (PW3), To Kam Cheung (PW2).
The 13.05.01 Meeting
92. This was the meeting during which the Managers were said to be appointed. The notice for the 13.05.01 Meeting was posted up on 5 May 2001 and the meeting was stated to be for the discussion of appointing 2 representatives from each of the 1st, 2nd and 3rd Fong as managers of the Tong (“05.05.01 Notice”)[78].
93. As recorded in the minutes of the 13.05.01 Meeting[79], there were 39 members who signed for attendance. To Wing-On made 3 suggestions, which were recorded to have been resolved unanimously with no objection, namely (1) appointing the 3 Tso Managers to be the managers of the Temple/Tong and registering the Temple with the CTC as a recognised “Kun”; (2) concerning the appointment of managers of the Temple/Tong, the existing 3 Tso Managers be registered as managers of the Temple/Tong; (3) concerning the application to the CTC for registration as a “Kun”, Global Factor Limited be engaged and authorized to deal with and carry out the application procedure; (3.1) at the same time, to handle the application for registration to the Tuen Mun District Office for registration of the managers of Tsing Wan Kun (“13.05.01 Resolutions”). There were 39 signatures after the record of the passing of the resolutions unanimously with no objection. Those who had signed twice included 3 of the 5 Clan Representatives, To Siu-Lam, To Man-Hing, To Mei-Lun. To Kai-Wah (PW4) also signed twice.
94. To Siu-Lam did not dispute having seen the 05.05.01 Notice posted at the usual place of his village, nor did he dispute that he did attend the 13.05.01 Meeting. Ps maintained the Discrepancy point, namely that there was a discrepancy between the 27.04.01 Resolutions, the 05.05.01 Notice and the 13.05.01 Resolutions and submitted that Ds never provided a satisfactory answer to the change of course.
95. It was the written evidence of To Siu-Lam that when he arrived at the Ancestral Hall, he saw To Kam-Chau, To Sheck-Yuen, and To Wing-On (陶永安) and his over 10 gang members from Tsing Tsuen Wai. To Siu-Lam said he saw To Kan-Chi there but not To Fook-Tim. He also saw To Mei-Lun and To Man- Hing, two of the 5 Clan Representatives, but he did not see To Muk-Tai or To Cheong-Lam[80]. In gist, To Siu-Lam’s written evidence was that he was not able to object to the resolutions proposed by To Wing-On, whom he claimed to be the “notorious leader of the gang from Tsing Tsuen Wai”, and he maintained under cross examination that he was not able to object to the 13.05.01 Resolutions proposed by To Wing On under the then circumstances. Further, during the trial, he said To Wing-On belonged to a triad society “Sun Yee On”. However, there was no mention of this in his witness statement.
96. It was also To Siu-Lam’s written evidence that To Wing-On and To Kam-Chau had demanded those present to sign on the minutes of that meeting, but neither of them had read out what was written on the paper, nor were those people present at the meeting had read it before signing. According to To Siu-Lam, to avoid any further confrontation with the group dominated by To Sheck-Yuen, To Kam-Chau, To Wing-On and his gang, he left the Ancestral Hall immediately after signing.
97. There was however no record of To Kam-Chau signing for attendance on the minutes. When this was pointed out to To Siu-Lam, he then claimed he had no recollection of matters which took place such a long time ago, and that he had suffered from nasal cancer in 2018 and the treatment had affected his memory and voice. To Siu-Lam agreed with Mr Chan that there was no reason for To Kam-Chau not to sign for attendance on the minutes if he did attend.
98. Under cross examination, To Siu-Lam admitted that no one had prevented people from leaving the meeting, and as pointed out by Ds’ Counsel, Mr Chan SC. To Siu-Lam could have left the Ancestral Hall before the minutes were recorded and signed. To Siu-Lam’s explanation was that he in fact had really wanted to leave, but he was afraid something would happen.
99. As set out later in this judgment, I find there was no sufficient evidence of threat or intimidation or violence towards To Siu-Lam at this meeting. There was no sufficient evidence that anything untoward would have happened to To Siu-Lam had he decided to leave without signing again after the passing of the 13.05.01 Resolutions. There was also no evidence that To Siu-Lam had lodged any complaint immediately after the 13.05.01 Meeting or took any steps to put on record that he had only signed on the minutes twice due to fear or under threat.
100. Having considered his evidence, I have to say I do not find To Siu-Lam’s evidence about the 13.05.01 Meeting reliable. There was no sufficient evidence that he had objected to the 13.05.01 Resolutions, whether at the time of the meeting or immediately thereafter. There was no sufficient evidence that he had signed for attendance, and again after passing of the 13.05.01 Resolutions, on the minutes of the 13.05.01 Meeting under any threat/intimation/violence or that he was in fear. In fact, after the 13.05.01 Meeting he had also signed on the Letter of Consent[81] on 26 August 2001. Further, To Mei-Lun (PW8) who was present at the meeting agreed during that the minutes were a correct record of what happened at the meeting and further confirmed during the trial be signed because he had agreed to the 13.05.01 Resolutions[82].
101. To Kam-Chau had referred to the meeting in his witness statement and had explained thererin why there were in the end only 3 managers instead of 6 as resolved in the 27.04.01 Meeting. During the trial, he had further said that after discussion, those attending the 13.05.01 Meeting did not agree to 2 representatives from each of the 3 Big Fongs as that was not in accordance with the custom of the Tso/Tong, and that all along, it was only one representative from each of the 3 Big Fongs. However, when it was pointed out to him that he did not sign for attendance at the 13.05.01 Meeting, he said he probably did not attend that meeting, and that he was probably not in Hong Kong at the time. His evidence at the trial was also that he had never seen the minutes of that meeting until he was in the witness box although he was informed by someone about what was resolved at that meeting. It was also his oral evidence that he had not heard of Global Factor Limited and that he had no idea as to whether Global factor Limited had participated in the demolition of the Temple during the renovation works.
102. To Kam-Chau’s answers during cross examination were often he did not know and/or he did not recollect. His evidence was not really satisfactory and was rather confusing. Having said this, I find this not surprising due to the passage of time and his age. Afterall by the time of the trial, all the witnesses had to recall events from some 22 years ago and they were no longer young. In the JR Judgment, Tang J had held that the Tso members would not regard the Discrepancy point as significant or that the Discrepancy had rendered the 13.05.01 Resolutions or the 12.08.01 Resolutions unfair or the overall appointment process unfair[83]. I agree with his findings. In fact, as also pointed out by Tang J, the Discrepancy was never mentioned by the Objectors in the 22.11.01 Objection Letters in which the Objectors stated that the 5 Clan Representatives should be the managers of the Tong.
25.05.01 Meeting
103. According to the minutes[84], there were 43 signatures of members who attended this meeting, out of which 39 members had signed a second time to agree and to pass the proposed resolutions.
104. It was recorded and resolved that “(1) The 5 Clan Representatives together with the 3 Tso Managers to go to the solicitors’ firm retained by the Tso/Clan/Tong (ie Messrs Miller Peart) to apply on behalf of the Clan/the Tso for refund of the Tong money; (2) Since To-Kam-Chau was in Canada, to contact him to come back to Hong Kong as soon as possible to handle the Tong affairs; (3) Concerning the application to the CTC, through To Yun-Kam to contact To Muk-Tai and To Cheong-Lam but in vain despite repeated telephone calls up to 25 May 2001; (4) Since To Muk-Tai and To Cheong-Lam did not show up, despite repeated contacts with them for signing papers and documents, the relevant papers and documents could not be submitted to CTC for process. The two men also did not attend meetings on various occasions for discussion; (5) Concerning contacting To Muk-Tai and To Cheong-Lam to sign papers and documents, it was in charge by To Yun-Kam, To Yat-Wah, To Hoi-Yip, To Shun-Fat to contact again. If they failed to contact the two of them before 28 May 2001, the relevant papers and documents would be signed by 3 out of 5 persons, the 3 persons include To Man-Hing, To Siu-Lam and To Mei-Lun”.
105. It was To Siu-Lam’s written evidence that he was not aware of the notice for the 25.05.01 Meeting and that he had no knowledge of the decisions made at the meeting, but he recognised that the handwriting of the minutes were that of To Sheck-Yuen[85]. One of the 5 Clan Representatives, To Man-Hing, was however present and he had signed twice on the minutes, once for attendance, once after the resolutions were passed signifying his agreement to the resolutions. I do not find it probable that To Man-Hing would not have told the others, at least To Siu-Lam and To Mei-Lun, even though To Mei-Lun was not asked whether he was told about the 25.05.01 Resolutions.
13.08.01 Meeting
106. Thereafter, a notice for the 12.08.01 Meeting was published in the newspapers on 26 July 2001 (“26.07.01 Notice”)[86]. There was no dispute that To Siu-Lam did attend the 12.08.01 Meeting, so did To Man-Hing and To Mei-Lun.
107. The resolutions passed at the 12.08.01 Meeting were (1) to follow up the registration of the managers of the Tong, the current 3 Tso Managers were to be registered with the Tuen Mun District Office as managers of the Tong; (2) agree, confirm and rectify that the properties, assets and capital owned by the Tong as described in Enclosure 1 (as set out in the minutes) were to be separated from the remaining properties, assets and capital of the Tong, and that all the properties and capital in Enclosure 1 would be used for traditional customary worship and repair of the main building of the Temple and its properties, and that all other properties, assets and capital of the Tong not belonging to Enclosure 1 were to be used for any purposes that the Tong deemed fit[87] (“12.08.01 Resolutions”)
108. Included in the Enclosure 1 were “(1) that piece of property registered in the Land Registry known as Tsing Shan House Lot 1, 2 and 3 in DD 131 and Lot 4165 in DD 131 including all buildings, structures etc thereon; (2) the amount of HKD 50 million left with the court since 1 December 2000 and interest; (3) litigation on the property and management right of the Tsing Shan Monastery: shall continue to fight for the management right, but requires funds to fight. It was suggested by To Wing On that the property of the Tso on Lot 1201 should be mortgaged for a loan not exceeding HKD 3 million to be used for the litigation costs to fight for the management right of the Tsing Shan Monastery; (4) the Temple committee to allocate HKD 192,000 to the Tso and the amount had already been given to To Yat-Wah and To Yun-Kam to pay to the solicitors firm, and that a sum of HKD 28,000 had been paid on 7 August 2001 to Miller & Peart the solicitors firm for the newspaper advertisement”.
109. The 12.08.01 Resolutions were recorded to have been passed unanimously and thereafter signed again by those present including To Man-Hing, To Mei-Lun and To Siu-Lam.
110. According to To Siu-Lam’s written evidence, upon his arrival at the Ancestral Hall, he was asked by To Kam-Chau to sign for the attendance at the meeting. He said he then stood away from the usual group comprising of To Kam-Chau, To Sheck-Yuen, To Wing-On and his gang. To Siu-Lam’s written evidence was that there was no discussion at the meeting and only an ongoing conversation being held among the members of the To Sheck-Yuen group. It was To Siu-Lam’s evidence that To Wing-On and To Yat-Wah coerced the 5 Clan Representatives to hand over the control of the remaining money held by them, but at the time only 3 of them were present, namely himself, To Mei- Lun, and To Man-Hing. According to To Siu-Lam, at the end of the meeting, To Wing-On handed over the Minutes record book for him to sign on it again, and that he felt that at all those meetings called by the To Wing-On group with To Kam-Chau, To Sheck-Yuen, they would use To Wing-On to suppress his opinion at the meeting or through him to obtain his signature.
111. What was clearly recorded was that To Siu-Lam, To Mei-Lun and To Man-Hing had signed on the minutes of the 12.08.01 Meeting twice, once for attendance and once for consent to pass the 12.08.01 Resolutions unanimously. It was put to To Siu-Lam that on the face of it, the 3 Tso Managers were already appointed the Managers of the Tong at the 13.05.01 Meeting, but To Siu-Lam maintained there was no approval of the appointment at the 13.05.01 Meeting as it was in contravention with the 05.05.01 Notice, ie the Discrepancy. However, when To Siu-Lam was asked whether he tried to ventilate his dissatisfaction at the 12.08.01 Meeting, his answer was that his main purpose of attending that meeting was to find out the stage of the case. Under cross examination as to whether he was still in fear of To Wing-On at that meeting, his answer was he was prepared psychologically to be cautious. When asked why he attended if he was still in fear, To Siu Lam claimed that as he was the representative of the Tong and the Tso, he had a duty to explain to the stakeholders and he maintained that the matter had not been completed.
112. Although To Siu-Lam maintained he was still under threat/intimidation/violence/fear, again, as set out later I find that there was really no sufficient evidence of this. In any event, To Mei-Lun admitted during trial that he signed to confirm and to agree to the 12.08.01 Resolutions of his free choice and on his own volition and that most parts of the minutes were a correct record of what happened[88].
Letters of Consent and Objection Letters
113. As mentioned earlier, on 26 August 2001, Letters of Consent were signed by the Tso/Clan/Tong members to the Tuen Mun District Office to support the appointment of the 3 Tso Managers as the Managers of the Tong[89], and the Clan members who signed included 3 out of the 5 Clan Representatives, namely To Siu-Lam, To Mei-Lun and To Man-Hing. Some 300 odd members had signed the Letters of Consent, out of a total of a list of 407 members of the Clan[90]. It was not until 22 November 2001 that 11 Clan/Tso members signed and sent the 22.11.01 Objection Letters to the District Office to object to the 3 Tso Managers to become managers of the Tong[91]. The reason given in the 22.11.09 Objection Letters was essentially that 3 Tso Managers were not fit or competent or appropriate persons to be appointed for reasons listed therein, and that the managers of the Tong should be the 5 Clan Representatives. There were no allegations of threat, intimation, violence or fear, or any impropriety in the meetings, or lack of unanimous consent in the 22.11.01 Objection Letters, or the Discrepancy. In fact, even though there were allegations of triad involvement in the Anonymous Objections Letters, there appeared to be no allegations by the authors of those letters of any actual threat, intimation or violence at the 13.05.01 Meeting or the 13.08.01 Meeting.
114. Having said this, according to To Kin-Wah’s 4th affirmation filed in support of Ps’ case in the JR Proceedings[92], there was a list of members of the Tong produced by the District Office, which consisted of 449 male members[93] (“Numbered List”). It was further To Kin-Wah evidence in his 4th affirmation that (i) a total of 66 names on the Letters of Consent were not on the Numbered List of which he had given full particulars; (ii) according to the Letters of Consent there were a total of 84 infants of which 41 were not on the Numbered List and only 29 infants purported to give their consent and none of the infants had attended either of the 13.05.01 Meeting or the 12.08.01 Meeting; (iii) according to the Letters of Consent, 86 members were residing abroad of whom 13 were not on the Numbered List, 15 purported to give consent on behalf of those persons and none of the overseas members attended the 13.05.01 Meeting or the 12.08.01 Meeting through any representatives. Further, there were a total of 32 persons who were neither on the Numbered List or in the Letters of Consent but who were members of the Tso, and thus of the Tong and this included 3 infant nephews and 1 adult nephew of To Kin-Wah, and there were also other names missing including the sons of To Muk-Tai.
115. As mentioned earlier, after the 22.11.01 Objection Letters, although the Tuen Mun District Office had sent out letters inviting the Objectors to attend a meeting, this was declined. According to the Objectors, they believed it was not necessary to have a meeting and/or they believed no possible advantage would be gained by a meeting until their allegations in the 22.11.01 Objection letters were addressed[94]. On 31 December 2001, the Tuen Mun District Office formally replied to the 22.11.01 Objection Letters[95]. After the appointment of the 3 Tso managers was approved and registered on 2 January 2002, To Kin-Wah had instructed solicitors Messrs KY Lo & Co to write on behalf of himself and his infant son To Yuk-Leung to the Tuen Mun District Office on 8 February 2002[96]. Suffice to say, in that letter, there were again no allegations of threat, violence, intimidation or fear, or any impropriety in the meetings or in the appointment of the Managers. There was also no allegation that the resolutions regarding the appointment of the Managers in the 13.05.01 Meeting and the 12.08.01 Meeting were not unanimously passed.
116. As set out earlier, the Managers commenced HCMP 509 on 5 February 2002, and this was then followed by the JR Proceedings commenced by To Kin-Wah on 2 April 2002.
27.06.04 Meeting
117. The above meeting was convened by a notice dated 11 June 2004 addressed to all members of the Tong residing in Nai Wai Village, Tsing Chuen Wai, Tin Tsz Wai, Lam Tei Village, Lam Tei Sun Tsuen and elsewhere (“11.06.04 Notice”)[97]. The 11.06.04 Notice had set out the background to the convening of the 27.06.04 Meeting, including that the applicant To Kin-Wah succeeded in his appeal in the JR Proceedings against Chung J’s setting aside of leave for the applicant to apply for a judicial review, and that a hearing of the JR Proceedings had been fixed on 15 July 2004. It was further set out therein that upon obtaining counsel’s advice and without prejudice to the validity of the appointment of the Managers at the 03.05.01 Meeting ,to avoid any further queries raised over the procedure at the previous meetings, a further meeting was to be held on 27 June 2004 to appoint the Managers in accordance with the custom of the Tong/Temple. It was set out in the 11.06.04 Notice that the matters to be discussed at the 27.06.04 Meeting were (1) to declare the intention of the Tong that the Managers or any members of the Tong be appointed as managers of the Tong;(2) to confirm and in so far as required ratify the appointment of the Managers made on 13 May 2001 and all duties performed by them in such capacity since their appointment on 13 May 2001; (3) to confirm that three members of the Tong be appointed as the managers of the Tong. It was stated therein that the voting could be by a member attending the meeting in person or by proxy.
118. According to the minutes[98], there were 34 To members who signed on the attendance record for the meeting. There were 5 proxies, including one for To Kei-Wah by a solicitor Mr John Fisher. Others who attended the meeting included a senior liaison officer of Tuen Mun District Office, a solicitor acting for the Tong and his secretary, the accountant of the Tong, the secretary of the Tong, and also a solicitor acting for To Kin-Wah. Police was also called at one stage but they later left.
119. It was initially proposed that To Kam-Chau be the chairman of the meeting. This was objected to by To Sze-On alleging conflict of interest. To Kam-Chau then proposed To Sheck-Yuen to be the chairman. This was again objected to by To Sze-On as To Sheck-Yuen was one of the sons of To Fook-Tim, one of the Managers. Due to disagreement, the proposal that To Sheck-Yuen be the chairman of the meeting was put to vote, and there were 27 for and 7 against, and To Sheck-Yuen was elected chairman by majority vote. 3 proposed resolutions were passed, namely (1) it be declared the intention of the Tong that the Managers or any members of the Tong be appointed as managers of the Tong; (2) it be confirmed and in so far as required ratified the appointment of the Managers made on 13 May 2001 and all duties performed by them in such capacity since their appointment on 13 May 2001; (3) that three members of the Tong be appointed as the managers of the Tong (“27.06.04 Resolutions”).
120. It was Ps’ pleaded case that there was no properly elected chairman at the 27.06.04 Meeting and that the purported chairman did not allow discussion on the matter proposed to be discussed, and that the purported chairman did not give any opportunity to members at the meeting to nominate persons other than the managers to be the managers of the Tong.
121. Ps then issued their writ in this action on 8 July 2004.
G.4.3. The alleged threats, intimidation, violence
122. To Siu-Lam’s written evidence was that To Wing-On was a member of a triad gang in Tsing Tsuen Wai and that two brothers, namely Billy To, and To Woon-Lam, (who passed away in 2016), were/are associated with To Wing-On , and that most members of the To Clan believed that these people had/have a triad background.
123. As mentioned earlier, To Siu-Lam’s oral evidence was that To Wing-On was a member of Sun Yee On but there was no mention of this in his witness statement. When asked, To Siu-Lam had replied that the present case only involved To Wing-On himself and not Sun Yee On and he maintained everyone present at the 13.05.01 Meeting knew To Wing On was a gang member. Further, under cross-examination, he had said “According to the history, [To Wing-On] is a member and also an indigenous villager in the To clan. His behaviour and his manner of behaviour showed the element of a triad member in the village for decades of years”[99]. However, in my view, such evidence would not be sufficient to support the allegation that To Wing-On was/is a triad gang member.
124. The other of Ps’ witnesses’ respective witness statement contained the No Disagreement Statement. As said, PW2 To Kam-Cheung was not in Hong Kong in 2001, and he had no personal knowledge of what happened during the meetings in 2001, save what he was told by To Siu-Lam. To Kam-Cheung had confirmed during the trial that To Siu-Lam had informed him that he had signed on the resolutions to appoint the 3 Tso Managers as the managers of the Tong and also on the Letters of Consent consenting to the appointment of the 3 Tso Managers as managers of the Tong, and that To Siu-Lam did not mention to him any problem or about how he came to so sign.
125. The witness statement of PW3 To Chi-Tsuen had also contained the No Disagreement Statement, but during the trial, he agreed that that he had no personal knowledge of some or many of To Siu-Lam’s statements and that he would not be in a position to agree or not agree. When it was put to him that there was no threat nor violence nor intimidation nor expulsion of any members in any of the meeting he might have attended, To Chi-Tusen then mentioned one incident when To Kai-Wah arrived at a meeting attended by him, a group of people shouted loudly at To Kai-Wah and asked him why he came, and that some of the villagers picked up a chair/stool to attack him, but To Chi-Tsuen said he did not know what happened. In his witness statement, he did not actually mention To Kai-Wah by name and he had also said he did not see whether there was any attack on the member, nor did he mention when the incident was[100]. During the trial, when To Chi-Tsuen was asked when the incident he witnessed took place, he initially said it was after 2001, and later he said he could not recall as it was such a long time ago. To Chi-Tsuen had also confirmed that he had signed on the Letters of Consent[101], consenting to the 3 Tso Managers being appointed as the managers of the Tong, and he said that he signed because he is a villager, and he was fulfilling his duty as a villager and to agree to appoint the three persons to be the managers of the Tong[102]. There was no evidence that he signed under any threat/intimidation/violence.
126. The incident allegedly witnessed by To Chi-Chuen appeared to be the same incident mentioned by PW4 To Kai-Wah in his witness statement, which was at a meeting on 15 December 2002, which was after the 2001 meetings. According to To Kai-Wah, the meeting was already under way when he arrived, and that suddenly To Woon-Lam rushed over with a chair to attack him, and demanded him to go away. This meeting took place two days prior to a court hearing on 17 December 2002 in the HCMP 509 concerning the Managers’ application for release of part of the Funds to deal with certain Tong matters and expenses[103]. Anyway, according to To Kai-Wah, he then went home to attend to his wound but he decided not to report the matter to the police. He said he had mentioned this attack to the wife of To Yat-Chor and that the incident was also mentioned in a letter sent by his brother To Kin-Wah’s solicitors Messrs K Y Lo Co to the solicitors for the Managers Messrs Terry Yeung & Lai on 20 January 2003[104]. However, all that was stated in the letter was that to Kai-Wah was attacked. No injuries were mentioned. The meeting on 15 December 2002 was apparently also attended by a representative of the Managers’ solicitors.
127. The above incident was at the end of 2002, almost 18 months after the appointment of the 3 Tso Managers as the Managers of the Tong at the 13.05.01 Meeting and some 11 months after their approval and registration under section 15 of NTO. The alleged threats/intimidation/violence during 2002 took place in the midst of the JR Proceedings and also the HCMP 509 proceedings when no doubt the two sides were at the height of their conflict, as the operations of the Tong would have been affected by the litigation and the Funds being held by HSBC Trustee. Billy To was cross –examined over this incident and he denied that To Kai-Wah was attacked by his brother To Woon-Lam with a chair at that meeting. To Chi-Chuen did not say he saw any actual attack in his witness statement. Further To Kai-Wah did not make a report to the police over the incident even though he and his family members had made police reports earlier that year regarding other incidents[105]. In any event, I find no sufficient evidence that the incident had caused To Kai-Wah serious fear or concern.
128. To Kai-Wah had attended the 27.04.01 Meeting but there was no mention by him of any threat/intimidation/violence at this meeting even though he had mentioned Billy To was present or that To Kai-Wah was under any fear.
129. To Kai-Wah was also asked about the 13.05.01 Meeting which he attended. His evidence at the trial was that he only signed on the minutes to show his attendance and he did not sign to agree to the proposals/resolution, and he also said that most people objected to the appointment of the 3 Tso Managers to be the Managers of the Tong because they were too old, and that if they had the ability to do it, they would allow them to do it[106]. There were two of his signatures on the 13.05.01 Minutes. When he was asked whether he signed out of his own free will, he only said before the meeting he was asked to sign their names for attendance and denied signing twice on the minutes. There was again no sufficient evidence that there was any threat/intimidation/violence at the meeting, or that he had signed on the minutes out of fear or threat. There were clearly two of his signatures on the minutes.
130. To Kai-Wah did mention in his witness statement that Billy To had gone to his house in Nai Wai Village to look for his father To Cheong-Lam a number of times and had demanded him to get his father out to sort out the money of the Temple/Tong, and that this was around May 2001 and June 2001.
131. It was in fact recorded in the minutes of 25.05.01 Meeting that Billy To contacted 2 of the 5 Clan Representatives To Muk-Tai and To Cheong-Lam several times by telephone but had not been able to contact them. It was put to To Kai-Wah that Billy To did go to his house and asked his father To Cheong-Lam to sign some papers in relation to the application to the CTC but that Billy To did not utter any threatening statements as alleged by To Kai-Wah. To Kai-Wah merely replied that matters regarding the Temple/Tong were not his father’s personal matters[107], and he further disagreed that Billy To had asked his father to deal with the money of the Temple/Tong. It was further put to To Kai-Wah that there was no mention of threats/intimidation/violence in the 22.11.01 Objection Letters, and he merely said his father did not go to the meetings in 2001, To Kai-Wah agreed that in the 22.11.01 Objections Letters, there was no mention that his father was intimidated or that it was as a result of threat or intimidation that his father did not attend the 13.05.01 Meeting and the 12.08.01 Meeting. It had been further put to him during the trial that there was no truth in his allegation that To Muk-Tai had told him in around July 2001, that he had refused to sign a document when asked by Billy To and To Woon Lam, and that when he refused to sign, they had made a threat against him and that in the end he had to change his home and mobile numbers. To Kai-Wah’s answer was confusing as he had at first agreed[108], but he then later disagreed.
132. To Kai-Wah’s brother To Kin-Wah (PW7) had mentioned about his mother was being splashed with red paint but this was on or about 30 May 2002. There were two further incidents, around 19 June 2002 and around 26 June 2002, that To Kai-Wah and also his brother To Kin-Wah had mentioned about the windows of their living room were being broken by someone. All these had been reported to the police. According to To Kai-Wah, thereafter they installed a CCTV camera at their house and afterwards, the attacks on their house no longer took place[109]. In any event, there was no sufficient evidence of any threat or any intimidation or any violence against To Kai-Wah, or his brother or his father or mother in 2001, save the alleged threatening utterances by Billy To when he visited their house to look for To Cheong-Lam.
133. PW7 To Kin-Wah had referred to his attending the 27.06.04 Meeting with members of his family, his solicitors and some bodyguards, and he had said a group was necessary to fend off the bad elements in the Ancestral Hall because of previous harassments on his father, attacks on his house and farm office, on his mother and his brother To Kai-Wah between 2001 and 2003, and that the bad elements were there in force at that meeting, and that a gang of thugs, about 8-10 in number tried to scream down any opposition. His then solicitor Mr Krishnan had also prepared an attendance note of that meeting which he attended with solicitor Mr John Fisher[110].
134. As said earlier, there was an officer of the Tuen Mun District Office present at the 27.06.04 Meeting. Mr Krishnan’s attendance note showed there were some 40 people who had gathered up and there was a ruckus when it was pointed out by Mr John Fisher that the meeting could not take place without a chairman. At some stage, the police was called to try to evict To Kin-Wah’s group including his legal representatives. There were heckles and swearings and there were some rowdy elements of the gathering. The police was asked to stay on as on observer.
135. However, it can be seen from Mr Krishnan’s attendance note that To Kin-Wah and his legal representatives were able to freely express their views and were given a chance to raise their objections at the 27.06.04 Meeting notwithstanding the ruckus or commotion.
136. The evidence of those witnesses who had attended the trial and gave evidence[111] showed that the alleged acts of threats/intimidation/violence were mainly against To Cheong-Lam and his family, and they mostly took place after 2001 and that in 2001, all To Kai-Wah had only said was that Billy To had gone to his house to look for his father several times and uttered threatening statements. I find no sufficient evidence that To Cheong-Lam or his sons had felt threatened or intimidated or in fear to the extent that that they did not dare to voice their objection at those meetings which took place in 2001 or indeed during the meetings afterwards.
137. In the witness statement of PW6 To Cheuk-Wing who was 82 year old at the trial, he had said one of the reasons he did not participate in the events of the Clan including meetings at the Ancestral Hall, as all these meetings were not conducted civilly and there was always extreme language or abuse at the meetings and sometimes violence, and sometimes police was called in advance of the meeting.
138. That there could be a ruckus or a commotion can also be seen in the 06.11.06 Video. This would not necessarily mean that the villagers or members present would feel threatened or intimidated into submission.
139. As mentioned earlier, although there were allegations of threats/intimidation/ violence made in the Anonymous Objection Letters, there were none in the 22.11.01 Objection Letters and notwithstanding the Objectors were invited to attend a meeting with the Tuen Mun District Officer, they declined and did not make use of the opportunity to voice their concerns or fears. To Cheong-Lam and To Kin-Wah were among the Objectors who signed the 22.11.01 Objection Letters. The fact was that first, To Kin-Wah, To Cheong-Lam, To Mei-Lun and To Siu-Lam had opposed the Managers’ application in HCMP 509 in 2002; second, To Kin-Wah had commenced the JR Proceedings in 2002; third, To Cheong-Lam and his family had made various reports to the police and installed of CCTV camera at their house; fourth, To Cheong-Lam and his family had instructed solicitors and body guards to accompany them to meetings; and fifth Ps had commenced the present action in 2004. All these in fact showed that Ps and those represented by them did not feel threatened or intimated or were in fear to the extent that they did not dare voice their objections or they were threatened or intimidated into submission.
140. Having considered all the evidence, I find that there was no sufficient evidence that those who had signed for attendance and/or consent at the meetings set out above had voiced their objections to those resolutions passed at the meetings, and I find that there was unanimous approval of the resolutions passed by those who had signed for attendance and/or consent at the 13.05.01 Meeting and the 13.08.01 Meeting. Further, I find there was no sufficient evidence that those who had signed on the minutes or on the Letters of Consent had signed under any threat/intimidation/violence, and I find they, including To Siu-Lam, To Man-Hing and To Mei-Lun namely 3 of the 5 Clan Representatives, had consented to the appointment of the 3 Tso Managers as the Managers of the Tong under section 15 of NTO. I also find there was no sufficient evidence that the Objectors or Ps had the support of a majority of the Tso/Clan/Tong members in objecting to the appointment of the 3 Tso Managers as the Managers.
141. Mr Chan SC had referred the Court to Chan Choy Fong and Secretary for Home Affairs, CACV 149/1991, in which the applicant sought judicial review of the decision of the Secretary for Home Affairs who, on the application by the applicant to be a new manager under section 15 of the NTO had sent a letter stating, inter alia, that new appointee must have the consensus support of members. It was held by Nazareth VP amongst other things that notwithstanding the emphasis on the signed consent of all t’so members, it must have been known to the applicant and his solicitors, given the circumstances that they were only required to procure the signed consent of those members who could reasonably be contacted and who in fact consented[112]. For the way forward, both Nazareth and Mortimer V-PP held the view it was for the members of the t’so to get together and appoint a manager, if not unanimously, then by a majority or conceivably even a relatively substantial minority who were able to show that the appointment should be approved under the first limb [of section 15, NTO][113]. It thus appeared from what was held and said that the view of the then Court of Appeal was that unanimity of all the members of the t’so was not required for the appointment of managers.
142. Mr McDonnell submitted that the Chan Choy Fang case predates the CFA Judgment and was thus overruled. Mr McDonnell relied on the following passages in the in the CFA Judgment:
“44. There being no such fifth type of temple ownership, we affirm the lower courts’ concurrent findings of fact that the temple Tsing Wan Kun is held under the third type of temple ownership by a t’ong of the same name whose members are the Tso and the Clan. This means that the temple Tsing Wan Kun and all its assets, which now include the Funds, are owned by the t’ong Tsing Wan Kun whose members are ultimately the members from time to time of the Tso and the Clan.
45. The temple Tsing Wan Kun’s assets are, as they have been for centuries, devoted to the purposes of due observance of the customary ceremonies of the temple Tsing Wan Kun and of maintenance of its temple buildings and temple properties. They will remain so devoted unless and until the t’ong Tsing Wan Kun, proceeding in a manner which conforms with Chinese law and custom, withdraws them from devotion to those purposes. The t’ong Tsing Wan Kun’s proprietary rights in the temple Tsing Wan Kun’s assets are vested rights. Accordingly the t’ong Tsing Wan Kun is entitled to effect such withdrawal at any time provided that it does so in a manner which conforms with the requirements of Chinese law and custom. This proviso arises for the reason that a t’ong, being an institution of Chinese law and custom, cannot act effectively if it does not act in conformity with that system. It is not for us to deal here with the details of the relevant requirements of Chinese law and custom. But we would just mention that unanimity in some form is generally required.”
(emphasis added)
143. What was stated above in the CFA Judgment was stated in the context of the withdrawal of the Funds or assets of the Tong and it was made clear by the Court of Final Appeal that it was not for them to deal with the details of the relevant requirements of Chinese law and custom.
144. Mr McDonnell had also referred the Court to Tang Che-tai v Tang On-Kwai & Ors CACV 137/2007, in which during trial in the Court of First Instance, DHCJ To summarised at paragraph 72 of his judgment in HCA 331/2002 as follows:
“72. In summary, I find that the following are the principles of Chinese customary law which may be applicable to the present case:
(1) t’ong property is meant to be indivisible, inalienable and perpetual;
(2) t’ong land may not be disposed of except under circumstances of necessity and by unanimous consent of all members of the t’ong, no single member may compel partition or sale of t’ong land;
(3) likewise, compensation from compulsory acquisition of t’ong land may not be distributed among members of the t’ong except under circumstances of necessity and by unanimous consent of all members, no single member may compel distribution of compensation;
(4) distribution of surplus rental income or profit issuing out of t’ong land for the purpose of pai-ji is a matter of internal management of the t’ong and not a matter subject to Chinese customary law, it is governed by rules, if any, or by custom of the t’ong, if there are none;
(5) a custom must be immemorial, certain in respect of its nature generally as well as in respect of the locality where it is applied and the persons whom it is alleged to affect;
(6) a custom must have obligatory force from within the custom itself which is derived from continued practice without interruption since its immemorial origin; and
(7) a custom may evolve with changing social, economical and political circumstances; a new custom has evolved or an old custom modified if the evolving custom has acquired the above characteristics; to have the force of a custom, an evolving custom must have at least had a substantially long period of existence and recognition, though not necessarily since time immemorial, so that the persons whom this new custom is alleged to affect would feel it an obligation to follow in preference to the old one.”
145. What was said above was in relation to the disposal of the t’ong property in that case, namely that the compensation from the compulsory acquisition of t’ong land may not be distributed among members of the t’ong except under circumstances of necessity and by unanimous consent of all members, and no single member may compel distribution of compensation.
146. Thus, what was held/said by the Court of Final Appeal in the CFA Judgment and what was held/said by DHCJ To in the Tang Che-tai case was held/said in the context of withdrawal or disposal of funds and assets of a tso or a t’ong and not in relation to the appointment of managers. In any event, I do not find that the Chan Choy Fang case has been overturned by the Court of Final Appeal.
147. To start with, in the 1st Joint Report[114], Professor Dicks and Professor Baker have agreed that:
“4 .…. that it is necessary to draw a distinction between three categories of rules; first, the general rules of Chinese law and custom applicable To Clans in traditional China generally and in the New Territories in particular, secondly the rules (written or otherwise) and customs of particular clans, and thirdly the administrative rules and practices which have grown up in respect of New Territories clans as a result of the enactment in 1910 of what is now Section 15 of the [NTO] and its application by the New Territories Administration over the last 100 years.”[115]
(underline added)
148. They have also stated jointly that :
“6. We are also aware of specific customary rules which apply to these particular institutions, such as those pertaining to the annual lantern ceremonies held at the [Temple], which have been proved by the evidence of members of those institutions in earlier proceedings. There are numerous references in the pleadings to “the custom of the Clan and the T’ong”, and it is no doubt possible that further customs can be proved by the evidence of members, but the customary rules of individual clans, as distinct from Chinese laws and customs, are generally speaking outside our expertise.
7. To the extent that a traditional institution such as the [Temple] falls within the provisions of section 15 of the [NTO] it is subject to the third set of norms deriving from the provisions of the [NTO] and the practice of the government agencies which administer it. Those statutory rules and administrative practices are not a matter of expert evidence”.
149. As stated by the two experts in the 1st Joint Report , the specific customary rules and local custom of individual clans are generally speaking outside their expertise, so are the statutory rules and administrative practices of the government under the NTO .
150. It has also been stated in the 1st Joint Report that the experts regarded it well-established that “managers” of clan property dedicated to a particular purpose were often appointed in traditional China. In the New Territories area they seemed usually to have been called “sze-lei” (司理) which should properly be translated as “manager” but which is commonly called “trustee” or by abbreviation “T” in the Block Crown Lease schedules. Their selection and appointment must often have been a matter of great importance to the clan members for reasons well illustrated by the present case.While little detail is known about how such appointments were made before the lease of the New Territories, the experts considered it unlikely that the customary requirements were not observed when a “sze-lei” was appointed[116].
151. It is further the experts’ joint understanding that the managers who are required to be registered under section 15 of the NTO in order to avoid the forfeiture of land by a clan, family or t’ong are usually appointed in the way managers have traditionally been appointed and are probably viewed by their membership as traditional “sze-lei”.[117]
152. During the trial, Professor Palmer has agreed that there was indeed little detail as to how appointments of “sze-leis” were made.
153. In relation to the issue of unanimity in decision-making, as pointed out by the experts in the 1st Joint Report, there may be differences of emphasis rather disagreement between them. What they have agreed is set out as follows:
(1) little is known of the mode of proceeding at traditional clan meetings although the rituals observed when worshipping the ancestors of the clan are fairly well known ( paragraph 10);
(2) it seems most unlikely that anything like the kind of open debate that might be expected in a meeting today would have been allowed (paragraph 11);
(3) neither expert regards the introduction of procedures based on the English law of meetings as having any basis in Chinese law and custom;
(4) the expressions “unanimously supported”, “some form of unanimity” and “unanimous consent” used in the pleadings belong in the context of a modern-style meeting when each person present casts a vote. In the context of Chinese law and custom or pre-modern times, the practice of putting resolutions to a vote at clan meetings was very unusual, if it existed at all, and the experts preferred to use the expression “consensus” as a condition for the making of important decisions by or in the name of a clan (paragraph 13)
(5) The experts were in no doubt that there was a strong customary principle that important decisions made by most clans required a consensus of opinion among the members (paragraph 14).
(6) It is impossible to discover a general rule of Chinese law and custom regarding the implementation of the principle of consensus or unanimity that would have been applicable to all clans in the Qing era (para 16)
154. During the trial, Professor Baker accepted that in practice it would be difficult to have “unanimity” and when it was put to him that the Chinese law and custom evolved to such a state that “unanimity” was sometimes achieved by something less than that, and Professor Baker agreed that there was plenty of evidence that that was the case[118].
155. Professor Palmer had also explained although the value of consensus was stressed, this was not always pursued and basically there was no general rule or procedure governing the process of the appointment of managers, which was in line with the joint view of Professor Dicks and Professor Baker.
156. To summarise, little detail is known about the procedure and process of the appointment of managers Sze-leis in the New Territories area.
157. Professor Palmer had agreed that it was impossible to discover a general rule of Chinese law and custom regarding the implementation of the principle of consensus or unanimity which would be applicable to all clans but had pointed out that in general, lineages were preferred, form of lineages, rather than clans, and that some would develop rules, others less so and less inclined, restricted, and there was a lot of local variation in these matters. He had also agreed that most long-established clans or segments of clans would have their own customary rules on such matters but in the present case the identification and proof of such rules is a matter for the To Clan.
158. Mr McDonnell submitted that Ds should be estopped from proving local customs. He pointed out that during the trial Ds’ counsel Mr K Chan had objected to his questions directed to To Kam-Chau during cross-examination about the local customs, which objections were upheld by this Court. However, the part of the transcript which Mr McDonnell had referred to was about him showing To Kam-Chau the Scott Schedule and asking To Kam-Chau about Issue 1 in the Scott Schedule, namely whether according to Chinese law and custom, the Funds should be dedicated to the Primary Purpose, to which Mr K Chan then objected that the Chinese law and custom was a question for the experts. The objection was upheld by this Court. Mr McDonnell was not at the that time asking To Kam-Chau about local customs on appointment of managers, but Chinese law and custom in general.
159. Mr McDonnell submitted by “successfully yielding [to] the Court’s approval in the objection, Ds must be treated as having abandoned their case on proving local customs and be estopped from doing so”[119]. I find it difficult to follow this argument and in any event, I do not agree that Ds should be estopped from proving local customs. Mr McDonnell had also submitted that To Siu-Lam’s evidence and Professor Baker’s evidence concerning the local customs was effectively unchallenged.
160. Professor Baker had said that the existence of any long-standing custom with regard to clan meetings was extremely hard to find, but there was remarkably a certain amount of good evidence in the case of the To Clan. He had referred to a 1787 inscription cut in stone regarding the rules for management of the To clan, which recorded the equal standing of the (three) branches (Fongs) with regard to management of Clan property. He further mentioned a document dated 1880 which appeared to be from the Old Accounts Book which recorded that there was a gathering of the assembled clan, old and young all agreed “合族酌議老幼均順” to divide the management (but not ownership) of the To Ka Yi Tso property into three equal portions which should be assigned to the three branches by drawing lots and that three copies of the agreement were made to be held by each of the branches. Professor Baker opined that the use of the phrase “老幼均順” carried a strong implication that the meeting’s decisions validated an achieved consensus[120]. However, the record in the Old Accounts Book only showed those “assembled” at the gathering had all agreed, and so far as the minutes of the 13.05.01 Meeting and the 12.08.01 Meeting showed, the 13.05.01 Resolutions and the 12.08.01 Resolutions had been passed unanimously by those present.
161. Professor Baker also reported that all members of the Clan who were interviewed by him confirmed the need for consensus and even the negotiated consensus choice by the three branches of their representatives to be managers of the To Ka Yi Tso was further subject to consensus confirmation by the Clan meeting. Professor Baker had however agreed in the 1st Joint Report that local customs should be proved by the evidence from the members of the Clan/Tong, as each clan and t’ong may have its own customs[121]. As mentioned earlier, Professor Baker had also accepted that in practice it would be difficult to have unanimity, or consensus, and that sometimes this was achieved by something less than that.
162. To Siu-Lam had in his witness statement set out the custom of appointment of managers in the Clan. He had said he was quite familiar with the custom and tradition of the Clan as he had been the manager of To Fau Yung Tso (陶浮翁祖), Chung Yi Tong (忠義堂), Ting Hau Kung (天后官) and Sam Sing Kung (三聖宮) since 1985. He believed that he had been appointed according to the custom of the Clan, which is largely based on the tradition of consensus, and the ability of the person who wishes to be in this position. It was his written evidence in respect of the managers of the Tso and/or the Tong, their ancestors had established a further tradition and custom, which is summarised as follows[122]:
(1) The Tso has 3 Big Fongs, and each Fong nominates a member from that Fong to be the manager, so each Fong should have 1 representative to represent the interest of that Fong in the affairs of the Tso;
(2) each Fong shall have its own right for the nomination which should not be interfered by the other two Fongs, and this is usually carried out by that Fong holding its own meeting for the nomination prior to any kind of meeting to be held at the Ancestral Hall for confirmation; if the nominated person is agreed by the consensus of the members of that Fong, this person would be made known to the other 2 Fongs, to see whether they will consent to this person to be the manager for the Tso; If no disagreement when that person is made known to the other 2 Fongs, a meeting shall be called at the Ancestral Hall to formalize the position of this person before making any application to the local district office for approval of this appointment and registration; if there is a disagreement that this person is not suitable, the members would try to persuade the objecting side to remove their objection before any application to be made at the local district office for registration. If there is no further consensus or removal of the objection, it will normally become a stalemate situation until or unless the circumstances arise again to discuss the appointment again or alternative person could be found with consensus of the objecting members of the Clan.
163. To Siu-Lam’s evidence that each Fong has its own right to nominate a member to represent the interest of that Fong, which right should not be interfered by the other two Fongs appeared to follow what was set out in the Old Accounts Book. However, it was not clear what his evidence that the nominated person of one Fong could be disagreed by the other 2 Fongs, and if so, the situation may become a stalemate, was based on.
164. The Court’s attention has not been drawn to there having been any stalemate or disagreement on the nomination of a representative by one Fong in the past prior to the events in 2001. What was clear was that there were various t’sos within the Clan and To Siu-Lam had said he would not intervene in the matters in other t’sos. When it was put to him that he did not know anything that he could point to as showing the custom of electing managers amongst the Clan or the t’sos and t’ongs within the Clan, To Siu-Lam had accepted that he did not have a thorough knowledge of the customs.
165. Mr McDonnell had also referred to the evidence from PW6 To Chi-Tsuen and PW6 To Cheuk-Wing. To Chi-Tsuen was born in October 1948 and was about 74 at the time of the trial. He is a member of the 2nd Fong. His written evidence was that generally a meeting should be called by the managers (sze-leis) to discuss whether there was a consensus among the members to deal with the money or compensation[123]. His evidence was about dealing with the Tong’s assets and not about appointment of manager. As for To Cheuk-Wing, he was born in February 1941 and was about 82 at the time of the trial and is an “elder” member of the 1st Fong from Tsing Tsuen Wai even though he had moved to Tuen Mun Sun Tsuen in about 2000. He had mentioned in his witness statement that according to their custom, each Fong must have its own representation in the Tso[124]. When he was asked about this during the trial, his answers were rather confusing and all he could say was that he could not make a clear differentiation and that he did not know what kind of representation it was, and also it was a matter for the head of each Fong.
166. On the part of Ds, it was To Kam-Chau’s written evidence that insofar as the Managers could remember, there was no custom in the Tso and/or Clan and/or the Tong to say that the election of managers must be unanimous, and that the election of the Managers was in accordance with and complied with the custom of the Tso/Clan/Tong and he had referred to the affirmation of the late To Yau-Shun (since deceased) filed in the JR Proceedings. To Kam-Chau had stated that in the case of a clan/tso/tong with a small or closely-knit membership, the managers may be selected by consensus without even the need for formalities such as the holding of a meeting but if a clan/tso/tong is getting larger in size, contested elections for the appointment of managers is increasingly common[125]。
167. Professor Palmer had pointed out in paragraph 16 of his solo report that the appointment of the Managers was approved by the District Officer and he opined it was highly likely that the District Officer would have taken into account any traditions of the Temple/Tong and the Temple/Tong and the constituent “branches” that he saw as relevant in making such a decision although section 15 of NTO does not specifically require this. Professor Palmer further pointed out that the Objectors did not take up an opportunity to meet with the Tuen Mun District Officer to explain their objections, and so far as he could tell, it was not clear in any event if there were any agreed and firm customary rules on selection of managers within the To community [ie the Clan][126] .
168. In paragraphs 21- 22 of his solo report, Professor Palmer had said as follows:
“[21] Moreover, the precise status and role of "managers' in pre-British times is unclear. There were persons who managed the affairs of a traditional social organisation, but we can surmise that they were ordinarily older and better educated—in the case of large traditional organizations they likely were imperial degree holders—but the precise process or processes by which appointments were made probably varied from community to community, and in any event remain unclear.
Working definition of unanimous consent
[22] In the case of well—populated tso and tong, with a significant number of members overseas, it is not possible readily to obtain full consent from all members. My understanding is, however, that the government administers these issues with informal working norms, to which I am not privy. A unanimous decision by a meeting with only a relatively small number of members attendance would likely not be considered sufficient. Efforts made to contact and solicit the views of members (including those overseas) might also be considered important, Whether there is evidence provided of local customs on the matter, that members were reminded of the importance of the meeting, and that after the meeting the decision was conveyed to members asking for their views.
[23] But I doubt that these measures are followed in every such case, and in any event, the basic principle is that the District Officer has a considerable degree of discretion and much authority in matters of recognizing the appointment of managers under Section 15 of the New Territories Ordinance. This process of recognition is one of Hong Kong Law, and—as just notedˉˍone in which the District Officer has much discretion and authority.
[24] Moreover, in my view, it is easy to overlook a very robust provision in s 15: the ‘Secretary for Home Affairs may on good cause shown cancel the appointment of any manager and select and register a new manager in his place'. Here the provision gives authority to a District Officer in certain circumstances not only to register a new Manager, but also to select that Manager prior to registration. (emphasis added)
[25] The question of whether each fong can be represented by its head/ elected representative is not yet decided. There is a common practice, but no explicit general rule of which I am aware, among the larger clans and lineages in the New Territories allow each branch an equal number of managers,
[26] In the case of two or more people were appointed as managers, the death of one of the joint managers does not automatically make the remaining manager(s) the sole manager(s) and assume full power. The members must either officially grant the power to the remaining manager(s) or appoint a new manager to replace the deceased manager. However, we know that in the New Territories, managers—for example, when ‘succeeding' their deceased fathers—have often failed to register their position as manager for some considerable time after assuming office, and that the severe penalty for failing to duly appoint managers (resumption of the organization's property) was rarely applied, and retrospective registration of managers in such instances quite common.”
169. Professor Palmer had said during the trial that the issues of consent and/or unanimity are very very difficult issues and his feeling is the general way of the world is changing even in the last five or six years , things have loosened up.
170. To summarise, although the expert evidence from Professor Baker and Professor Palmer indicated whether under Chinese law and local custom, there should be consensus or unanimity in decision-making at meeting and in appointment of managers/sze-leis, in practice, consensus or unanimity was achieved by something less and/or by a majority. As pointed out by Professor Palmer, it is the members of a t’so that appoint the manager under section 15 of NTO, and if there is a reasonable sized majority, then it’s very likely that the appointment will be approved by the District Officer.
171. Having considered all the above, I do not find that there was sufficient evidence that the local custom of the Tso and the Tong required unanimity or some form of unanimity of all members of the Tso/Clan/Tong for the passing of resolutions at general meetings of the Tong (Issue 6), or that unanimous consent of all members was required for the appointment of the managers of the Tong (Issue 7).
172. In the present case, as found earlier, there were no objections at the 13.05.01 Meeting and the 13.08.01 Meeting from those who had signed for attendance and for consent at those meetings. I find there had also been a sizeable majority of members of the Tso/Clan signing the Letters of Consent. I find there was also no sufficient evidence from Ps’ factual and expert witnesses that in accordance with local customs, the appointment of the 3 Tso Managers as managers of the Tong during the 13.05.01 Meeting and/or the 13.08.01 Meeting was considered invalid. In short, I find the 3 Tso Managers were validly appointed to be the managers of the Tong at the 13.05.01 Meeting (Issue 9) and the 3 Tso Managers were then duly registered and approved under section 15 of the NTO as the Managers.
173. As for Issue 8 whether members can take part by proxy at meetings of the Tong, Professor Palmer had stated in his solo report that the use of proxies was quite common in traditional Chinese society[127]. As pointed out by him, the allegation that in accordance with the Tso/Clan/Tong, no proxy is allowed appears to him to be inconsistent with the general use of proxies, and in addition, there is no specific bar on the use of proxies in section 15 of the NTO. Professor Baker’s evidence was that the procedure of meeting was not governed by Chinese law and custom, but the use of proxies of various kinds was widespread in traditional Chinese society and he was not aware of any rule that rendered their use invalid or ineffective[128]. I find no sufficient evidence that members of the Tso/Clan/Tong cannot take part by proxy at meetings of the Tong.
174. As for Issue 10, whether To Sheck-Yuen was validly elected as chairman of the 27.06.04 Meeting. Professor Baker opined that as Chinese law and custom did not apply to the conduct of meetings of the kind such as the 27.06.04 Meeting, he was unable to give evidence regarding the custom of the Tso/Clan/Tong. Anyway, I find no sufficient evidence that To Sheck-Yuen’s election as chairman of the 27.06.04 Meeting was invalid.
175. On ratification, under issue 11, in the 1st Joint Report, Professor Baker and Professor Dicks stated that they knew of no rule of Chinese law and custom which would prevent a person who did not participate in an act or decision from later confirming or approving that act or decision, and they did not think that ratification in that sense [as stated therein] was an act or process which could be said to contravene any rule of Chinese law and custom, but ratification would not be binding on those not party to it, and there was no rule preventing ratified act or decision from being reviewed and changed at any time[129].
176. As said earlier, I find that Ds were validly appointed as managers of the Tong at the 13.05.01 Meeting and duly registered under section 15 of NTO on 2 January 2002. If they were not, I find no sufficient evidence that their appointment could not be validly ratified or approved at the 27.06.04 Meeting (Issue 11).
H. CATEGORY (II) - THE PURPOSES FOR WHICH THE FUNDS/SURPLUS FUNDS OF THE TONG CAN BE APPLIED FOR
177. Ps’ case is that according to Chinese law and custom, the Funds should be dedicated to the Primary Purpose and that any surplus, or the Surplus Funds should be for the Secondary Purpose, and that there is no custom or practice permitting funds not required for the Primary Purpose be distributed to members.
178. As indicated by Ds’ Counsel, Ds do not challenge the Primary Purpose[130]. The dispute was over the Secondary Purpose, and Ds’ case was that distributions in cash to members had long been a custom and practice of the Tso/Clan/Tong. First Mr McDonnell had pointed out that the CFA Judgment was only handed down towards end of 2000 declaring that the Temple and the assets were owned by the Tong and thus by the time of the issue of HCMP 509 or when the present action was issued, the Tong had only had ownership of the Funds for about 2 to 4 years, which would not be long enough for any custom or practice to be established.
179. Second, during cross –examination, To Kam-Chau was asked what he thought the Surplus Funds, namely funds not needed for the maintenance of the Temple and its traditional worship, his answer was “to be reserved for needs which may arise any time in the future”. When asked what sort of needs, he had said unexpected needs, and that they needed to have a meeting to discuss and to decide whether it was necessary to meet those needs, which could include assisting to poor widows, assisting children of members of the Temple/Tong to have school uniforms required by their schools, helping a member who needed very expensive medical treatment (“Unexpected Needs”). When asked whether the decision at the meeting had to be unanimous, To Kam-Chau said it should be done according to the procedure of the meeting. When asked again if there was a proposal, and if there was no agreement at the meeting then how was that proposal going to be achieved, he repeated it was to be decided during the meeting.
180. DW4 To Kim-Hung had said in his witness statement that he fully supported Ds’ appointment as the Managers of the Tong and their application to apply for release of Surplus Funds for equal distribution to members[131]. However, when he was asked over his written evidence, his answer was according to his understanding, the money was used to maintain the Temple, and that it was not his understanding that Ds were applying for the release of the Surplus Funds for equal distribution in cash to all the members, and his understanding was that the release of the Surplus Funds was to do something for the Clan, to maintain the Ancestral Hall, and for the descendants of the Clan and for the Temple and for the graveyards and to maintain the graveyards for the descendants to pay respect to the ancestors. He had also said during the meetings, the Managers mentioned that the money was for the maintenance of the Ancestral Hall and the Temple and it was also suggested that if the descendants would go to study overseas and the money could support them, and he agreed that the Surplus Funds were really for the welfare of the descendants of the Clan[132].
181. DW5 To Kin-Lun’s written evidence on his understanding of the purpose of Ds’ application for the release of the Surplus Funds was similar to the written evidence of that of DW4 To Kim-Hung. Under cross examination, on the release of the Surplus Funds, his evidence was that it was not the case that the money could be immediately distributed or used once it was released and that there were rules, and that they had many ideas and those ideas could not be carried out because the money could not be released, such as there were descendants who wanted to study at university and wanted to be granted some money but all these were stopped because of certain reasons. His evidence was that he would support the Surplus Funds being used for the purposes mentioned by him[133].
182. Thus, there was no agreement by some of Ds’ own witnesses that the Surplus Funds were to be distributed in cash equally among the members of the Tso/Clan/Tong, as proposed by the Managers.
183. In the 1st Joint Statement, on the broad issue as to the application of the Surplus Funds, Professor Baker and Professor Dicks were not fully in agreement as to the need to find an appropriate “Secondary Purpose” for the Surplus Funds or as to the relevance of the concept of “trust”.
184. As quoted earlier, in the Tang Che-tai case, DHCJ To had said that compensation from compulsory acquisition of t’ong land may not be distributed among members of the t’ong except under circumstances of necessity and by unanimous consent of all members, no single member may compel distribution of compensation. He had also said distribution of surplus rental income or profit issuing out of t’ong land for the purpose of pai-ji (派饑) is a matter of internal management of the t’ong and not a matter subject to Chinese customary law, it is governed by rules, if any, or by custom of the t’ong, if there are none.
185. “Primary Purpose” and “Secondary Purpose” are only definitions used by Ps in their pleadings. Having considered all the above, my finding under Issue 1 is that the Funds were for maintaining and enhancing the Temple and supporting the worship and other activities traditionally carried out in the Temple, and under Issue 2 , the Surplus Funds, namely Funds not so used, should be for any purpose beneficial to either the present or the future members of the Tso/Clan/Tong and in circumstances of necessity and unexpected circumstances, including the Unexpected Needs mentioned by To Kam-Chau.
186. So far as Issue 4 is concerned, as stated earlier, it was the joint understanding of Professor Baker and Professor Dicks that the Managers appointed under s15 of NTO were usually viewed by the members as traditioned “sze-leis”[134]. The managers or “sze-leis” were regarded to be “trustees” of the landed property and assets of the Tso[135]. In my view, the Managers are in effect trustees of the land and assets of the Tso/Clan/Tong, including the Funds/Surplus Funds.
187. Issue 12 in the Scott Schedule is the only issue under this category, namely whether the trusts affecting the assets of the Tong, if any of them, be administered by the court.
188. In light of this Court finding that the appointment of the Managers in 2001 and registered on 2 January 2002 was/is valid, this issue is no longer relevant. There is no reason why the trusts affecting the assets of the Tong should be administered by the Court. It is also not necessary for this Court to consider the consequential directions under paragraphs (2A)–(2E) of Ps’ claims in the ASOC.
189. Having regard to all said above, I dismiss Ps’ claims.
190. As for costs, I will hear parties on the proposed costs orders. If there is no agreement, a short hearing (not more than 30 minutes) be fixed for directions.
| ( Bebe Pui Ying Chu ) Judge of the Court of First Instance High Court |
Mr John McDonnell KC and Mr Jeffrey Chau, instructed by Lui & Law, for the 1st to 3rd Plaintiffs
Mr Chan Chi Hung SC, Mr Kenneth CL Chan and Ms Margaret KM Chan, instructed by WT Law Offices, for the 1st and 2nd Defendants
[1] HCMP 562/1992 and HCMP 2084/1994
[2] Secretary for Justice and To Kan Chi & Others [2000] 3 HKLRD 756,(2000) 3 HKCFAR481, FACV 8/2000
[3] The resumption was of land in Nai Wai by the Government for the Deep Bay Link Project
[4] The To clan is said to be male members of 5 villages, namely Nai Wai, Lam Tei Tsuen, Sun Tsuen, Tsing Tsuen Wai and Tin Tsz Wai, see para 5, witness statement of To Kan Chau, B:344
[5] See paras 2,3 B:343
[6] At para 5 CFA Judgment; Sun Tsuen has also been referred to as Tuen Mun Sun Tsuen (屯門新村) or Lam Tei Sun Tsuen (藍地新村) in the evidence
[7] At para 44, CFA Judgment
[8] Of the 2nd Fong and whose grandfather To Tong-Hing was one of the former registered managers of the Temple in 1906
[9] Head of 3rd Fong
[10] Head of 1st Fong
[11] At para 65, CFA Judgment
[12] D4:1226, in the chronology in paragraph 5 of Ds’ Closing Submissions, the date of that letter was stated to be 14 February 2001
[13] See para 66, CFA Judgment
[14] D1:653
[15] D1:659
[16] D1:670
[17] D1:676
[18] D1: 694
[19] D1:702
[20] D3:974-1030
[21] D1:708-710
[22] D1:731-737
[23] D1:711-728; D3:1032-1048
[24] See paras 5 -7, CACV 107,108/2008
[25] F:1897
[26] Filed on 11 February 2002, F:1901-1905
[27] Affirmation of To Kam Chau filed in HCMP 509 on 11 February 2002
[28] D4:1190-1198
[29] See item #5 of Ds’ List of Authorities
[30] [2006] 1 HKC 407, #6, Ps’ List of Authorities
[31] D4:1269-1285
[32] On the 9th day of the trial
[33] D4:1287-1309
[34] D1:1252-12643
[35] See para 21, CACV 107 & 108 of 2008
[36] A:102
[37] See paras 8, 9 of Ds’ Skeleton Submissions, 21 January 2021
[38] See paras 37,38, ASOC, A1:10
[39] See para 41C of AD, A:27
[40] The current remaining balance, after paying for renovation works of the Temple, and various expenses of the Tong including legal costs over the years
[41] It was said that according to the custom of the Clan, if a member is over 50 years old, he automatically qualifies as an “elder” of the Clan, see para 4, B:171
[42] At para 34, JR Judgment
[43] At para 17, B:176
[44] See para 8, B:193
[45] Also known as “Ah Pao” (阿豹), see para 10,B:193
[46] C:559-570
[47] C:580-592
[48] Para 4(a), Amended Reply, 6 June 2009, A:34
[49] Day 7 Transcript, pg 53-54
[50] D1:738-812; also H1B: 3313-3386; English translation H1B: 3387-3440
[51] At para 45, B:247
[52] Transcript, Day 7, Line 15, pg 54 to Line 22, pg 55
[53] At para 41, B:356
[54] At line 11, Transcript, Day 7, pg 57
[55] Lines 5- 22, pg 58, Day 7, Transcript
[56] At para 55, Ps’ Closing Submissions
[57] H5(2): 4688, para 6 of To Cheong-Lam’s affirmation in CACV 107/2008, which was not accepted by the 3 Tso Managers
[58] See para 6, JR Judgment
[59] See para 6B, ASOC, A:1
[60] See para 14, JR Judgment
[61] At para 40
[62] At para 50
[63] See para 14, JR Judgment.
[64] D1:653-655, English translation at D1:657
[65] It was To Kam-Chau’s oral evidence under cross examination that he did sign his name (without his surname) on the attendance record
[66] At item (5), D1:657
[67] D1:651
[68] At para 4, B:231
[69] D1:660-662
[70] See para 11, JR Judgment
[71] See para 8, B:271
[72] At para 13, B:273
[73] See paras 8 and 9, B:271
[74] See paras 6, 7, of Ps’ Closing Submissions
[75] See para 17, Ps’ Closing Submissions
[76] See para 39, JR Judgment
[77] See para 40, JR Judgment.
[78] D1:664,665
[79] D1:667-671
[80] At para 20, B:235-236
[81] D1:704, D3:1003
[82] Pg 7, Lines 7-10, pg 8, Lines 17-20 Day 9, Transcript
[83] At para 41, pg 22
[84] D1:676-681
[85] See para 26, B:238
[86] D3:1105
[87] D1:700-702
[88] Lines 2 to 18, pg 10, Day 9, Transcript
[89] D3:974-1030
[90] D3:969-973
[91] D1:711-728; D3:1032-1048
[92] D4:1215
[93] The Numbered List contained 450 names, one of whom was a woman, and according to To Kin-Wah, as a woman should not be a member, the Numbered List therefore contained names of 449 male persons.
[94] See H1A:3212; D3:1050
[95] H1A:3224
[96] D3:1050-1052
[97] D4:1184- 1188
[98] D4:1190-1198
[99] Lines 8-12, Day 3, Transcript
[100] At para 11, B:183-`84
[101] D3:1008
[102] At Lines 6- 9, Day 4, Transcript
[103] See order made by Yam J on 17 December 2002 , D5:1459-1461
[104] D2:900
[105] D2:873-894
[106] At Lines 1-3, pg 34, Day 4, transcript
[107] Lines 1-3, pg 4, Day 5, Transcript
[108] Line 20- 24, pg 18, Day 5, Transcript
[109] At para 20, B:276
[110] D1:616-626
[111] To Ka-Tak was not called to be cross-examined on his witness statement of 27 January 2010
[112] See Holding (2), on pg 432, per Nazareth VP
[113] See Holding (5), on pg 433per Nazarethe and Mortimer V-PP
[114] C:559-570
[115] At para 4, C:561
[116] See para 8, C:562
[117] See para 9, C:563
[118] At Day 10, pg 67 of transcript, 4-14
[119] At para 40, Ps’ Closing Submissions
[120] At para 22, C:555
[121] C:561
[122] At paras 44-45, B:246-247
[123] At para 12, B:184
[124] At para 10, B:193
[125] At para 43, B:357
[126] At para 16, C:600
[127] See para 18, C:601
[128] At para 120, C:537
[129] Para 25(2), C:570
[130] See Line 4, pg 44, Transcript Day 7
[131] At para 9, B:459
[132] Pgs 55-58, Day 9, Transcript
[133] At pgs 69-70, Day 9, Transcript
[134] Para 9, C:563
[135] See Leung Kuen-Fai v Tang Kwong Yu Tong and Others [2002] 2 HKLRD 705, paras 16-27.