TIN HAU WUI ALSO KNOWN AS TANG TIN HAU WUI WITH TANG FUK LEUNG AS THE MANAGER v. TING WAI MING AND ANOTHER

DCMP 356/2013

[2024] HKDC 2203

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 356 OF 2013

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DECISION

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Introduction

1.  This is a review application made by the Plaintiff (“P”) under Order 62, rule 33 of the Rules of District Court (Cap 336H) (“the RDC”) against the order dated 17 October 2022 (“My Order”) in which it was ordered, inter alia, that P shall not claim against the Director of Legal Aid (“the DLA”) in relation to the hearing between the parties held on 19 February 2019 under Order 14A of the RDC by applying s.16C of the Legal Aid Ordinance (Cap 91) (“the LAO”).

Background

2.  In February 2013, P commenced legal proceedings against the 1^st Defendant (“D1”) and the 2^nd Defendant (“D2”) for recovery of Lot No 1357 in DD 106 under Order 113 of the RDC (“the Land Case”).

3.  In March 2013, D1 was granted legal aid to defend the Land Case.

4.  In April 2013, P filed the Statement of Claim.

5.  In August 2013, D1 filed the Defence and Counterclaim raising adverse possession as defence and claiming for possessory title of the disputed land (“the Counterclaim”).

6.  In April 2018, the Land Case was set down for trial on 20 March 2019.

7.  In December 2018, at the PTR hearing of the Land Case, the parties agreed that the question on “whether the Plaintiff was and is a Chinese customary trust (hereditary in nature) within the meaning of s15 of the New Territories Ordinance, Cap 97” be determined without a full trial of the action and such determination would finally determine the entire cause or one of the major issues of the Land case. The said question was directed to be heard pursuant to Order 14A of RDC.

8.  On 19 February 2019, it was at the Order 14A hearing held that P was a Chinese Customary Trust. Judgement was entered against D1. D1 was ordered to deliver vacant possession of the land to P. D1’s counterclaim was dismissed. D1 was further ordered to pay 99% of P’s costs and D2 was ordered to pay 1% of P’s costs (“the Order 14A Hearing”).

9.  In March 2021, an order extending time for P to file and serve the notice to commence taxation proceedings was made.

10.  In September 2021, P was ordered to file and serve the Notice of Commencement of Taxation and Bil of Costs on 29 October 2021.

11.  On 29 October 2021, P commenced taxation against D1.

12.  In May 2022, the DLA filed list of objections raising 3 preliminary issues.

13.  By the Order dated 4 August 2022, the present hearing was set down for the purpose of determining the 3 preliminary issues.

14.  By consent summons dated 10 October 2022, P and the DLA had reached agreement on two of the 3 preliminary issues. The remaining issue for the present hearing was whether DLA should be liable for P’s costs in relation to the Order 14A Hearing (“the Preliminary Issue”).

15.  On 17 October 2022, I heard both parties on the issue of the Preliminary Issue and ordered, inter alia, that P was not entitled to recover the costs of the Order 14A Hearing under s16C(1)(b)(ia) of the LAO.

16.  On 11 July 2023, the taxation hearing was held. The costs in relation to the Order 14A Hearing was agreed by P and DLA to be taxed off. The taxed off items are shown below:

Items	Description
63-70 of P’s bill of costs	legal work done on the preparation and attending the Order 14A Hearing
84a, b, c & d of P’s bill of costs	P’s counsel fee for the work done on whether P was Chinese customary trust, and brief fees for attending the hearing on 19 February 2019 before HH Judge MK Liu, ie the Order 14A Hearing

17.  On 25 July 2023, P took out the present summons to review My Order.

P’s argument on the Preliminary Issue

18.  P argued that the Order 14A Hearing in substance was heard in order to determine the counterclaim instead of the main claim. D1 in substance was “a plaintiff in the counterclaim” and P was “a defendant to a counterclaim”, thereby satisfying s.16C(1)(b)(ia) of LAO.

19.  Given that the main claim, ie P was the registered owner of the Land, was not disputed, the trial that was fixed would essentially relate manifestly to the D1’s counterclaim.

20.  P also argued that this case fitted squarely into the observation of the Court in Peter Man Ho Laye v Tam Ma Lai (HCA 1780/2009) that the Order 14A Hearing would be “virtually devoted to the counterclaim”. P submitted that this conclusion was supported by the fact that, the judge in the Order 14A Hearing actually stated that the complexity of these proceedings stems from the adverse possession claim raised by the 1^st Defendant and nearly all the time in these proceedings is spent on this matter.

DLA’s stance on the Preliminary Issue

21.  DLA disputed all costs incurred in relation to the Order 14A Hearing on the ground that DLA was not liable for P’s costs incurred on the main claim but only those on defending the counterclaim pursuant to s16C of LAO.

22.  According to the submissions of the DLA, the main issue is whether the costs incurred in relation to Order 14A Hearing falls into s16C(1)(b)(ia) of LAO, ie “costs occasioned by the counterclaim”.

23.  The DLA argued that the Order 14A Hearing was held under the main claim and the non-aided P was addressed as “the Plaintiff of the main claim”, instead of the Defendant of the counterclaim”, in the judgement and costs order made by judge in the Order 14A Hearing. Applying the legal principles in Common Luck Investment Ltd v Director of Legal Aid (FACV No 1 of 2002), the DLA submitted that the parties’ formal designation in the judgment and costs order of the Order 14A Hearing shall follow and therefore the present situation did not fulfil s16C(1)(b)(ia) of LAO.

Analysis of D1’s Review Application under Order 62 rule 33 of RDC

24.  My Order was made on 17 October 2022. The taxation hearing was held on 11 July 2023 and P’s summons to review My Order was taken on 25 July 2023, ie about 9 months after My Order was made (“the time bar issue”).

25.  The time bar issue had not been addressed in the written submissions filed by both parties. When it was being raised by this Court in the review hearing, P submitted that the review application could only be made after the conclusion of the taxation under Order 62 rule 33 of RDC. P also instantly referred this Court to Liu Anissa Mee Ling v Lam, Lee & Lai (HCMP 2186/2008, 18 June 2010) to support her submissions.

26.  D1 then submitted that they had no objection to P’s submissions. But they would also adopt the observation of this Court.

27.  Application to taxing master for review is governed by Order 62 rule 33 of RDC which states that:

“(1) Any party to any taxation proceedings who is dissatisfied with the allowance or disallowancein whole or in part of any item by a taxing master, or with the amount allowed by a taxing master in respect of any item—

(a) may apply to the taxing master to review his decision in respect of that item…

(2) An application under this rule for review of a taxing master’s decision in respect of any item may be made at any time within 14 days after the conclusion of the taxation in which that decision was made or such shorter period as may be fixed by the taxing master.

…

(3) Every applicant for review under this rule must at the time of making his application deliver to the taxing master objections in writing specifying by a list the items or parts of items the allowance or disallowance of which or the amount allowed in respect of which, is objected to and stating concisely the nature and grounds of the objection in each case, and must deliver a copy of the objections to each other party (if any) who attended on the taxation of those items or to whom the taxing master directs that a copy of the objections shall be delivered.

(3A) If an applicant fails to comply with paragraph (3), the taxing master maydismiss the application.” [Emphasis added]

28.  P’s reply to the time bar issue placed much reliance on Order 62 rule 33 of RDC which, as shown in the above, stipulates not only the time for making review application but also the procedures for the said application. It goes without saying that the procedures therein, like any other rules in the RDC, are meant to be observed, failing which, the application is doomed to fail.

29.  Paragraph (3) of Order 62 rules 33 stipulates that the applicant for review under this rule must at the time of making his application deliver to the taxing master a list specifying the items or parts of items the allowance or disallowance of which or the amount allowed in respect of which, is objected to and the grounds of objections. The applicant must also deliver a copy of this list of objection to all parties.

30.  In the present case, apart from P’s written submissions in relation to this review application, P has not delivered to this Court any list of objections specifying items or amount or allowance or disallowance being objected to and the grounds of objections. In short, P has failed to comply with paragraph (3) of Order 62 rule 33.

31.  Under such circumstance, this Court is empowered by paragraph (3A) of Order 62 rule 33 to dismiss the present application.

32.  Notwithstanding this, placing the wording of Order 62 rule 33 of RDC under close scrutiny, it is clear that the review mechanism stipulated herein is aimed at reviewing specific item/items or the amount of item(s) allowed or disallowed by a taxing master. It is for challenging the exercise of a taxing master’s power in relation to quantification of an item/items or amount but not the determination of a preliminary issue.

33.  Where the review mechanism under Order 62 rule 33 cannot be invoked because the challenge is on a decision by a taxing master on determination of a preliminary issue but not quantification of costs, the inherent jurisdiction of the court could be invoked to make good the want of an express right of appeal. (Macro v Macro (Ipswich) Ltd [1996] 1 WLR 145)

34.  In Macro v Macro (Ipswich) Ltd, an action and a counterclaim in respect of two petitions were heard together, a taxing master made orders adjourning the taxation proceedings until after the appeals against the substantive judgment. It was not disputed that the appeals would not affect the orders in respect of the costs of the petitions. The petitioners sought to appeal under R.S.C., Ord 58, r 1, which gave a right of appeal from a master to a judge in chambers, against the orders adjourning taxation of their bills of costs in the petitions. The respondent contended that the only means of challenging a taxing master's decision was by means of the special machinery provided by Ord 62, rr 33 to 35 and that, there being no other right of appeal, the court had no jurisdiction to entertain the petitioners' appeals.

35.  It was held that although the review machinery prescribed by Ord 62, rr 33 to 35 was appropriate to challenges in respect of technical matters concerning the taxation, it was inappropriate to challenges to the exercise by the taxing master of procedural powers of a general nature; that the inherent jurisdiction of the court could be invoked to make good the want of an express right of appeal.

36.  In the light of Macro v Macro (Ipswich) Ltd, P should not have challenged My Order through the review mechanism under Order 62 rule 33 of RDC but invoked the inherent jurisdiction of the court to do so.

37.  Moreover, as shown in the above paragraph 16, the costs in relation to the Order 14A Hearing had already been taxed off upon the agreement made between P and DLA in the taxation hearing in July 2023. This voluntary agreement to tax off the costs in relation to Order 14A Hearing is impliedly confirm My Order that P is not entitled to the costs in relation to the Order 14A Hearing. This taxing-off of the costs of Order 14A Hearing is utterly inconsistent with P’s stance in the present review application.

38.  Therefore, P’s summons taken under Order 62 rule 33 of RDC should be dismissed.

Analysis of s16C of LAO

39.  Even if I am wrong on the above analysis, I maintain that P was not entitled to recover the costs of the Order 14A Hearing under s.16C(1)(b)(ia) of the LAO due to the below analysis.

40.  DLA’s liability for costs to a non-aided party is governed by ss 19 and 16C of LAO.

41.  According to s.19 of LAO, a court may make an order for costs against an aided person but such an order may only be enforced against the aided person and DLA to the extent permitted by s16C of LAO.

42.  In the event that the party not receiving legal aid is a defendant to a counterclaim, s16C(1)(b)(ia) of LAO states that the costs occasioned by the counterclaim shall be paid by the DLA.

43.  Citing Peter Man Ho Laye v Tam Ma Lai (HCA 1780/2009), P argued that the Order 14A Hearing would be “virtually devoted to the counterclaim” since the judge in the Order 14A Hearing stated that the complexity of these proceedings stems from the adverse possession claim raised by the 1^st Defendant and nearly all the time in these proceedings was spent on this matter.

44.  With respect, the issue of adverse possession is a defence raised by D1 to challenge P’s claim and if nearly all the time in the proceedings was spent on this issue, ie whether there exists adverse possession, the costs was not occasioned by the counterclaim but the main claim.

45.  P’s argument rests heavily on Peter Man case that the court looks to the substance and not the form when determining whether costs have been incurred on a claim or counterclaim. In order to look to this issue closely, one has to look to not only the judgement entered or order made in the Order 14A Hearing but also the purpose of an Order 14A application.

46.  Order 14A rule 1 provides:

"(1)  The Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the Court that –

(a)  such question is suitable for determination without a full trial of the action; and

(b)  such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein.

(2)  Upon such determination the Court may dismiss the cause or matter or make such order or judgment as it thinks just.

(3)  The Court shall not determine any question under this Order unless the parties have either –

(a)  had an opportunity of being heard on the question; or

(b)  consented to an order or judgment on such determination."

47.  The requirements for employing the procedure under Order 14A may help the analysis herein. In B + B Construction Ltd v Sun Alliance and London Insurance Plc (2000) 3 HKCFAR 503, the Court of Final Appeal held at 507I-508C that:

“In order to invoke Order 14A, certain criteria must be satisfied: it must be shown that it is a suitable case for this procedure, that the determination on the question of law or construction of the document is one which will finally determine the entire cause or matter and that the parties have consented to abide by the determination (or have had an opportunity to be heard on the question). But the court may not make such a determination if it does not consider that it is a suitable case to take such a course. This can be the situation where, for instance, the court does not agree that its decision will have the effect of finally resolving the controversy between the parties, or there are serious disputes of fact or the trial may take place very shortly. If however the court does proceed to hear the application on the basis that its determination will have the effect of finally disposing of the cause or matter before it, an order made pursuant to such an application should be regarded as a final order for the purpose of section 22(1)(a). The application which the court proceeds to hear on that basis would satisfy the application test. Whatever the outcome of the application, the order made will finally determine the action. After all, it is the intention of the parties and the court that such a decision would put an end to the dispute instead of requiring the parties to go through the trouble and expense of a full trial.” [Emphasis added]

48.  An issue suitable for Order 14A application should be “a disputed point of fact or law relied on by way of claim or defence. [Emphasis added]” (Korso Finance Establishment Anstalt v John Wedge, February 15, 1994, CA Transcript 94/387 cited in Hong Kong Civil Procedure 2024, 14A/2/4)

49.  At the PTR hearing, parties agreed that the issue “whether the Plaintiff was and is a Chinese customary trust (hereditary in nature) within the meaning of s15 of the New Territories Ordinance” should be determined. The Order 14A Hearing was then directed.

50.  The parties’ agreement at the PTR hearing was a sensible one since it is obvious that the determination of the issue of whether P was a Chinese customary trust would in fact determine whether the defence of adverse possession could stand and accordingly determine the whole of the Land Case.

51.  And at the end of the Order 14A Hearing, it was decided that P was a Chinese customary trust and, in other words, the defence of adverse possession failed. It followed that the Counterclaim, which solely relied upon the defence of adverse possession must also fail. The court then rightly entered judgement against D1 and dismissed the Counterclaim. As ruled in B + B, the said decision in the Order 14A Hearing finally determined the action and put an end to the dispute.

52.  This then, in substance and in form, shows that the judge in Order 14A Hearing has disposed of the Land Case by rejecting the defence of adverse possession. This in turn shows that the costs of this hearing could not be “costs occasioned by the counterclaim”.

53.  P argued that the Order 14A Hearing was dealing with the Counterclaim rather than the main claim. On principles regarding the requirements of an Order 14A application, one can hardly see that the resolution of a counterclaim could determine the action and put an end to the dispute. Only determination of issues in relation to the claim or the defence could determine the action.

54.  The direction for the Order 14A Hearing was made upon the parties’ agreement that the issue “whether the Plaintiff was and is a Chinese customary trust (hereditary in nature) within the meaning of s15 of the New Territories Ordinance” should be determined. All parties and the judge in the PTR hearing must have thought that the said issue was a disputed point of fact or law relied on by way of claim or defence but not an issue in the Counterclaim. It is understandable that the resolution of a counterclaim will probably not have the effect of finally resolving the controversy between the parties.

55.  It is obvious that the Order 14A Hearing was conducted in a way to deal with the defence of the main claim, namely the adverse possession raised by D1. The decision in the hearing resulted in the Counterclaim being dismissed. Therefore, the costs in the Order 14A Hearing could not be “the costs occasioned by the counterclaim” as stated in s16C(1)(b)(ia) of LAO.

Conclusion

56.  In the light of the above analysis, P was not entitled to recover the costs of the Order 14A Hearing under s16C(1)(b)(ia) of the LAO. I order that P’s summons be dismissed.

Costs

57.  Costs should follow event. I order that costs of the present P’s summons including all costs reserved and the hearing on 31 October 2024 be paid by P to the DLA, to be taxed if not agreed.

Order

58.  By the reasons aforesaid, I make the following orders:

(1)  The Plaintiff’s summons filed on 25 July 2023 be dismissed;

(2)  The Costs of the Plaintiff’s summons including all costs reserved and the hearing on 31 October 2024 be paid by the Plaintiff to the Director of Legal Aid, to be taxed if not agreed; and

(3)  The 1^st Defendant’s own costs to be taxed in accordance with the Legal Aid Regulations.

59.  Lastly, I remain grateful to P’s counsel Miss Teresa Yu and Legal Aid Counsel Miss April Wong for their assistance in this hearing.

Miss Teresa Yu, instructed by KWC & Associates, for the Plaintiff

Miss April Wong, Legal Aid Counsel, instructed by Legal Aid Department, for the Interested Party

DCMP 356/2013

[2019] HKDC 216

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 356 OF 2013

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DECISION

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Introduction

1.  In these proceedings, the plaintiff is now claiming against the 1^st defendant and the 2^nd defendant for recovery of possession of Lot No 1357 in DD 106 (“the Land”).  The plaintiff is the registered owner of the Land.  The plaintiff seeks an order requiring the defendants to deliver vacant possession of the Land to the plaintiff, an injunction, damages for trespass including mesne profits.

2.  The 1^st defendant claims that he has been in adverse possession of the Land since 1 January 1992.  By the commencement of these proceedings[1], he has acquired a possessory title to the Land.  The 1^st defendant counterclaims for the said possessory title.

3.  The trial has been scheduled to commence on 20 March 2019, with 7 days reserved.  There was a pre-trial review on 12 December 2018 (“the PTR”).  In the PTR, the parties agreed that the following question (“the Question”) be determined under Order 14A of the Rules of the District Court:-

“Whether the plaintiff was and is a Chinese customary trust (hereditary in nature) within the meaning of s.15 of the New Territories Ordinance (“NTO”)”

4.  The Question is the issue before me in this hearing.  For the reasons set out below, the answer to the Question may have a significant impact on the outcome of these proceedings.  For the purpose of this hearing, the parties agree that all the witness statements and all the documents in the PTR bundles are being treated as admissible evidence.

5.  Having read the evidence as to service produced by the plaintiff, I am satisfied that notice of this hearing has been given to the 2^nd defendant.  So the ruling of this court on the Question would bind all the parties in these proceedings.

The plaintiff’s case

6.  The plaintiff suggests that the answer to the Question is clearly “Yes”.

7.  The plaintiff claims that there are 10 male members of the plaintiff (“the 10 New Members”) who were born on the following birthdates:-

(1)  13 June 1992

(2)  4 July 1993

(3)  12 October 1992

(4)  24 June 1994

(5)  13 October 1996

(6)  18 December 1999

(7)  17 November 2003

(8)  30 July 2004

(9)  18 August 2005

(10)  12 May 2006

8.  The plaintiff’s case is that the principle in Leung Kuen Fai v Tang Kwong Yu (or U) Tong[2] applies to a Chinese customary trust (hereditary in nature) within the meaning of s 15 of the NTO.  As a result of the births of the 10 New Members, the 1^st defendant’s claim of adverse claim in any event cannot succeed and must fail.  Accordingly, the plaintiff is entitled to have judgment against the 1^st defendant without a trial.

9.  The plaintiff also says that since the 2^nd defendant has never attended any hearing in these proceedings and has never put forward anything to contest the plaintiff’s claim, the plaintiff should be entitled to have judgment against the 2^nd defendant without a trial.

The 1^st defendant’s case

10.  The 1^st defendant claims that the answer to the Question is “No”, or alternatively, there is insufficient evidence proving that the plaintiff is a Chinese customary trust (hereditary in nature).

11.  The 1^st defendant suggests that the controversies in these proceedings should be resolved in the trial.

The principle in Leung Kuen Fai

12.  The essence of the principle in Leung Kuen Fai has been succinctly summarized by Lam VP in Tsang Kwong Kuen v Hau Wai Keung Gaius[3], in which the learned judge said:-

“5. We shall first deal with the Leung Kuen Fai aspect as it is a short point and there is no dispute that the appeal must fail if [counsel] cannot overcome it. The essence of the relevant principle is that due to the peculiar characteristic of a Tso or Tong (preserved by Chinese customary law and s 13 of the New Territories Ordinance Cap 97) with new equitable interest stemming from each new member being admitted upon birth by reason of his hereditary link with the focal ancestor, a person who is in adverse possession cannot extinguish the title of the Tso or Tong under the Limitation Ordinance unless he can establish the requisite limitation period against all the living members of the Tso or Tong.” (Emphasis added)

13.  There is no dispute that the principle in Leung Kuen Fai covers all Chinese customary hereditary trusts.  Mr Siu accepts that the plaintiff is not an ancestral tso.  Mr Siu submits that the plaintiff is a Chinese religious trust set up for the purpose of worshipping the traditional Chinese goddess Tin Hau.  It is a Chinese customary trust hereditary in nature, and is within the scope of the principle in Leung Kuen Fai.

14.  In my view, the essential feature of a trust covered by the principle in Leung Kuen Fai is that each new member is admitted to the trust upon birth by reason of his hereditary link with the focal ancestor.  A trust with this essential feature is a Chinese customary hereditary trust.  A Chinese customary hereditary trust can be set up for the purpose of worshipping the focal ancestor.  However, a Chinese customary hereditary trust can also be set up for other purposes, for example, worshipping a traditional Chinese goddess. Provided that each new member of the trust is admitted to the trust upon birth by reason of his hereditary link with the focal ancestor, it is a Chinese customary hereditary trust within the scope of the principle in Leung Kuen Fai.

Evidence showing that the plaintiff is a Chinese customary trust (hereditary in nature)

15.  Ms Au argues that there is no or no sufficient evidence proving that the plaintiff is a Chinese customary hereditary trust.  Mr Siu submits that there is ample evidence showing this.  I agree with Mr Siu.

16.  The plaintiff has produced the following evidence:-

(1)  the witness statement of鄧福亮;

(2)  the witness statement of鄧世澤;

(3)  the witness statement of鄧世裕;

(4)  the witness statement of鄧國邦;

(5)  Block Crown Lease concerning the Land;

(6)  letter issued by the Yuen Long District Office dated 19 May 2016 (“the District Office’s Letter”), in which the Yuen Long District Office states that according to their record, the plaintiff is a recognized Tso/Tong under s  15 of the NTO;

(7)  letter issued by the Kam Tin Rural Committee dated 3 August 2016 (“the Rural Committee’s Letter”), in which the Kam Tin Rural Committee states that the plaintiff is the only Tin Hau Wui in Kat Hing Wai in Kam Tin, Yuen Long, and the plaintiff is a tong recognized under s 15 of the NTO ; and

(8)  the birth certificates of the 10 New Members.

17.  The evidence produced shows the following:-

(1)  The plaintiff was established in the Qing Dynasty and before 1905.  It was a religious tong set up for the purpose of worshipping Tin Hau.  The schedule to the Block Crown Lease shows that the plaintiff was registered as the owner of various pieces of land, including the Land, with Tang Yun Yan (司理鄧元恩) as its manager. It is the very first title document at the colonial age regarding the land in the New Territories.  Mr Siu submits and I agree that in the context of the plaintiff’s nature, the Block Crown Lease should also be read together with the District Office’s Letter and the Rural Committee’s Letter.  But for the hereditary nature of the plaintiff, the plaintiff could not have survived from a time before 1905 up to the present.

(2)  At the beginning, the plaintiff was established by 4 males within the Tang’s clan, ie 鄧緝明, 鄧禎祥, 鄧品重 and 鄧植棠.  Their male descendants, ie the male descendants of these 4 fongs, automatically became members of the plaintiff hereditarily without the need to make any application for membership or approval by anyone.

(3)  Tang Wai Hing was appointed as manager of the plaintiff on about 28 September 1962 by the Yuen Long District Land Officer, in place of Tang Yun Yan, deceased.

(4)  Tang Fuk Leung was appointed as manager of the plaintiff on about 7 February 1996 by the Yuen Long District Land Officer, in place of Tang Wai Hing, deceased.

(5)  The male descendants of the aforesaid 4 fongs became members of the plaintiff at the time of their births. The members of the plaintiff are the surviving male descendants of those 4 fongs of the plaintiff.

(6)  Members of the plaintiff know each others as family members.  Most of them live inside the Kat Hing Wai Walled Village, Kam Ting, New Territories. They would meet each other at Lunar New Year, Tin Hau Festival, Ching Ming Festival and Chung Yeung Festival.

(7)  Only the members of the plaintiff (not anyone else) would share among themselves the offerings after they have worshipped Tin Hau at Tin Hau Festival on the 23^rd day of the third lunar month.

(8)  In about 1995, the Government resumed portion of Lot 943 in DD 103 which was owned by the plaintiff.  A compensation of HK$2,485,080 was made by the Government to the plaintiff.  Tang Fuk Leung as manager of the plaintiff collected the compensation money and distributed it to the members of the plaintiff in the said 4 fongs. Only the surviving members of the plaintiff were entitled to share the compensation money.

(9)  Mr Siu submits that in about 1905, Tang Fuk Leung was not even born. But for the hereditary nature of the plaintiff, Tang Fuk Leung could not have become a member of the plaintiff and then being appointed as manager of the plaintiff with approval by the District Land Officer.  Further, but for the hereditary nature of the plaintiff, the Government would not have released the compensation money of HK$2,485,080 to Tang Fuk Leung for his distribution to the surviving members of the plaintiff.  I agree.

(10)  Apart from the members of the plaintiff, no male members of other clans of Tangs have ever claimed any entitlement to the compensation money or other benefits enjoyed by the plaintiff.

18.  Mr Siu submits that the approval and appointment of Tang Fuk Leung as manager of the plaintiff on about 7 February 1996 by the Yuen Long District Land Officer under s 15 of the NTO is evidence showing that the plaintiff is a Chinese customary hereditary trust.  Unless that approval is set aside, the 1^st defendant is not entitled to challenge the status of the plaintiff.  Mr Siu relies upon Tang Man Kit and Foo Tak Ching (suing as Managers of Wah Yan Mo Fan Heung (華人模範鄉)) v Hip Hing Timber Company Limited[4], in which Cheung JA said:-

“36. The hearing before Yuen J started in June 2000 but had to be adjourned due to the non-availability of a witness who had fallen sick. While the status of the Heung and the capacity of the plaintiffs might be a live issue when the hearing first commenced, by the time it was resumed in August 2000, the District Office had clearly recognised the Heung to be a T’ong under section 15 of the NTO. The section provides that –

‘Whenever any land is held from the Government under lease or other grant, agreement or licence in the name of a clan, family or t'ong, such clan, family or t'ong shall appoint a manager to represent it. Every such appointment shall be reported at the appropriate New Territories District Office of the Home Affairs Department, and the Secretary for Home Affairs on receiving such proof as he may require of such appointment shall, if he approves thereof, register the name of the said manager who shall, after giving such notices as may be prescribed, have full power to dispose of or in any way deal with the said land as if he were sole owner thereof, subject to the consent of the Secretary for Home Affairs, and shall be personally liable for the payment of all rents and charges and for the observance of all covenants and conditions in respect of the said land….’

37. The power to approve and register managers was vested by the NTO on the Land Officer, who was also the District Officer until 1982. The NTO was amended in 1993 to vest such power on the Director of Home Affairs who was subsequently re-named the Secretary for Home Affairs.

38. If the Heung is such a T’ong, then it must possess such a status, at least, from 30 December 1929 when it began to hold land as a result of the transfer from Mr. Wong Yuet Chiu and Mr. Lui acting in their personal capacity and as trustees for Chap Shing to themselves acting as trustees for the Heung.

39. Further if Mr. Chan and Mr. Tang were recognised as managers of the Heung from 1989 to 1999, then clearly they had the capacity to commence the action in 1990. The District Officer’s approval of the manager can take effect retrospectively from the time the managers were appointed by the members: Light Ocean Investments Ltd v Enway Development Ltd [1994] 3 HKC 31, per Litton JA.

40. The approval by the District Officer was given pursuant to a statutory provision. It was given not as a matter of formality but upon consideration of the law and facts. The fact that the District Officer had in earlier years, namely in 1972, took a different approach as to the status of the Heung becomes irrelevant once the approval was given in August 2000.

41. This decision must affect both the Heung, its managers and members on the one hand and also the Heung and the public on the other hand. The recognition of the status of the Heung as a section 15 T’ong must be in the nature of a recognition ‘in rem’.

42. In my view, until such time as the approval by the District Officer is set aside, it is not open to anyone, including the defendant in this case, to litigate on this issue again and challenge the status of the Heung and the plaintiffs.”

Followed by DHCJ Marlene Ng (as she then was) in Tang Kun Nin, Tony, Manager of Hung Shing Temple v Cheng Wai Fongand 2 Others[5].

19.  The aforesaid Court of Appeal’s decision is binding upon me.  Mr Siu’s point is unanswerable and I accept his submissions.

20.  There is no evidence from the 1^st defendant showing that the plaintiff is not a Chinese customary hereditary trust.

21.  Ms Au submits that there is no or no sufficient evidence showing that the plaintiff is a Chinese customary hereditary trust.  Ms Au argues that:-

(1)  There is no contemporaneous document proving the nature of the plaintiff, for example, a genealogy, a name list of the names of all members and records showing the distributions to each of the members, and a registration of newborn members.

(2)  The evidence on how and for what purpose the plaintiff was established is from Tang Fuk Leung, and Tang Fuk Leung’s evidence is only hearsay evidence.

(3)  That the approval and appointment given by the District Land Officer is not conclusive evidence on whether the plaintiff is a Chinese customary hereditary trust within the scope of s 15 of the NTO. 

22.  I am unable to accept these submissions.

(1)  Ms Au relies upon Kan Yam Yau v Kan Yook Tim[6], in which Cheung JA said:-

“22. When a Court makes a finding of fact or drawing an inference from facts, it does not depend solely on direct evidence. Very often such evidence is lacking. The Court looks to the overall circumstances of the case. The conduct of the parties in relation to each other is a relevant consideration. If the parties had conducted their affairs in a particular manner for a substantial period of time, the Court may ask whether this is because they know that their relationship is governed by a certain mode based on agreement or understanding? Or is it because of other reasons such as misapprehension of some fundamental facts, inertia or lack of financial means to adopt a different approach? The Court also looks to contemporaneous records such as written agreements or correspondence of the parties. In the context of an indigenous clan in the New Territories, the Court also expects its history to be passed down from generation to generation by way of oral transmission or recorded in documents such as a genealogy. From these various facets the Court makes the finding and draws the inference as to what probably had taken place.” (Emphasis added)

(2)  As said by the Court of Appeal in Kan Yam Yau, the history of an indigenous clan in the New Territories can be recorded in documents, but it can also be passed down from generation to generation by way of oral transmission.

(3)  In his witness statement, Tang Fuk Leung has set out the history and the purpose of the plaintiff, which was learnt by him from his grandfather, father and uncles.  Tang Fuk Leung has also said that there is no need to have a genealogy or a register of members, as the members of the plaintiff know each other very well.  In my view, Tang Fuk Leung’s evidence makes good sense and I have no reason to doubt his evidence.  See Tsang Kwong Kuen[7], [12].

(4)  While the history of an indigenous clan is passed down from generation to generation by way of oral transmission, when a member gives evidence on the history of the clan, naturally the evidence would be hearsay evidence.  Hearsay evidence is admissible evidence.  Unless there is anything casting doubt on the truthfulness or correctness of the hearsay evidence, the court may accept and act on the hearsay evidence.  Although Tsang Fuk Leung’s evidence on the history and the purpose of the plaintiff is hearsay evidence, there is nothing casting any doubt on this evidence.  I accept Tsang Fuk Leung’s evidence.  

(5)  In the light of the Court of Appeal’s decision in Tang Man Kit and Foo Tak Ching, it is not open to Ms Au to challenge the status of the plaintiff while the approval and appointment of Tang Fuk Leung as manager of the plaintiff given by the District Land Officer under s 15 of the NTO is in place. 

23.  In my judgment, the answer to the Question is clearly “Yes”.

The birthdates of the 10 New Members

24.  The birthdates of the 10 New Members are supported by the birth certificates of the 10 New Members.  There is no evidence from the 1^st defendant showing that any of these birthdates is incorrect or untrue.  I find that the 10 New Members were born on those birthdates respectively.

The plaintiff’s case against the 1^st defendant

25.  At the beginning of this hearing, Ms Au provides a new authority to the court and to Mr Siu, which is Man King Chuen v Hong Lok Yuen International School Association Ltd[8]. Ms Au submits that in the light of Man King Chuen, the principle in Leung Kuen Fai may not be a correct legal proposition.  With respect, I do not think Ms Au can derive any assistance from Man King Chuen.  In Man King Chuen, there is no comment on whether Leung Kuen Fai was correctly decided or not.  In Man King Chuen, the court simply allowed the 2^nd defendant therein to put in expert evidence on Chinese customary law, which would be relied upon by the 2^nd defendant to challenge the correctness of Leung Kuen Fai[9].  In this case, the 1^st defendant has never tried to seek leave to adduce any expert evidence to challenge the correctness of Leung Kuen Fai.  In the premises, there is no room for the 1^st defendant to argue that the principle in Leung Kuen Fai is not correct.

26.  In my view, even assuming that the 1^st defendant began to be in adverse possession of the Land since 1 January 1992, by reason of the births of the 10 New Members from 1992 to 2006, the 1^st defendant still cannot extinguish the title of the plaintiff to the Land at the time of the commencement of these proceedings.  The adverse possession claim made by the 1^st defendant must fail.

27.  As a result, the 1^st defendant in fact has no defence to the plaintiff’s claim.  At the same time, the 1^st defendant’s counterclaim must be dismissed.

28.  In the PTR, the parties have agreed that the mesne profits to be paid by the 1^st defendant to the plaintiff for the wrongful occupation of the Land should be HK$100 per year.  The plaintiff claims mesne profits of HK$600 for the 6 years before the commencement of these proceedings on 1 February 2013, and also for mesne profits after the commencement of these proceedings up to the present, which are the mesne profits for another 6 years.  The total of the mesne profits claimed by the plaintiff is HK$1,200.  I would allow this claim.

29.  I would enter judgment against the 1^st defendant and make the following order:-

(1)  the 1^st defendant do deliver vacant possession of the Land to the plaintiff within 56 days;

(2)  the 1^st defendant do demolish all the structures built by him or built under his order or permission on the Land or any portion thereof at his own costs and expenses within 56 days, failing which the plaintiff be at liberty to demolish all the said structures and the plaintiff’s costs of demolition shall be borne and indemnified by the 1^st defendant;

(3)  the 1^st defendant be restrained from entering into the Land whether by himself, his agents, servants, family members, directly or indirectly after the expiration of 56 days from the date of this decision;

(4)  the 1^st defendant do pay the plaintiff mesne profits of HK$1,200;

(5)  the 1^st defendant’s counterclaim be dismissed; and

(6)  there be liberty to apply for the purpose of carrying out this order.

The plaintiff’s case against the 2^nd defendant

30.  The 2^nd defendant has never put forward anything resisting the plaintiff’s claim.  I would enter judgment against the 2^nd defendant and order that the 2^nd defendant do deliver vacant possession of the Land to the plaintiff within 28 days.

Disposition

31.  I rule that the answer to the Question is “Yes”.

32.  I give judgment to the plaintiff and make the order set out in paragraphs 29 and 30 above.

33.  I have heard submissions on costs.  Costs should follow the event.  The complexity of these proceedings stems from the adverse possession claim raised by the 1^st defendant and nearly all the time in these proceedings is spent on this matter.  The 1^st defendant has failed on the adverse possession claim.  In these circumstances, it would be just and fair to order that 99% of the costs of these proceedings (including all costs reserved, if any) be paid by the 1^st defendant to the plaintiff, with a certificate for counsel.  The remaining 1% be paid by the 2^nd defendant to the plaintiff.  All costs are to be taxed if not agreed.  The 1^st defendant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

34.  I further direct that the trial dates from 20 March 2019 to 28 March 2019 be vacated.

35.  I thank counsel for the assistance rendered to the court.