in the high court of the hong kong special …...to kam chau as managers of the to ka yi tso to...
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CACV 32/1999 IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL
CIVIL APPEAL NO. 32 OF 1999 (ON APPEAL FROM HCMP 562/1992 and 2084/1994)
__________________ BETWEEN TO KAN CHI 1st Plaintiffs TO FUK TIM TO KAM CHAU as managers of the TO KA YI TSO TO CHEONG LAM 2nd Plaintiffs TO SIU LAM TO MEI LUN TO MAN HING and TO MUK TAI as representatives of TO CLAN and PUI MAN YAU 1st Defendant alias SIK KWOK WAH THE ATTORNEY GENERAL 2nd Defendant CHAN YAT SAN 3rd Defendants LAU WONG FAT and HO SUN WING THE SECRETARY FOR 4th Defendant HOME AFFAIRS INCORPORATED PUI MAN YAU alias SIK KWOK WAH, 5th Defendant the personal representative of TAT ON, deceased ______________________________
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Before: Hon Leong JA, Woo JA and Pang J in Court
Date of Hearing: 13 – 17 & 23 December 1999
Date of Handing Down Judgment: 3 February 2000
______________
J U D G M E N T ______________
Leong JA (delivering the judgment of the Court) :
Introduction
By an action commenced on 3 April 1996 the 1st plaintiffs To
Kan Chi (���), To Fuk Tim (���) and To Kam Chau (���) as managers
of the To Ka Yi Tso (����) and the 2nd plaintiffs To Cheong Lam (���),
To Siu Lam (���), To Mei Lun (���), To Man Hing (���), and To Muk
Tai (���) as representatives of the To Clan in five Tuen Mun (��) villages
namely, Nai Wai Village (���), Tsing Chuen Wai (���), Tin Tsz Wai (��
�), Lam Tei Village (���) and Lam Tei San Village (����) claimed, inter
alias, a declaration that they were the beneficial owners of the various
pieces of land in DD130, 131, 132 and 138 registered in the name of Tsing
Wan Kun (���), in particular, lot 416 and House lots 1, 2 & 3 in DD 131,
where the temple Tsing Wan Kun and its surrounding gardens are situated
(the properties). The plaintiffs claimed that Tsing Wan Kun was the
collective name used by the To Ka Yi Tso and/or the To Clan to hold the
properties and the income therefrom for the purpose of constructing and
maintaining the Tsing Wan Kun temple and running it as a private or clan
temple for the benefit of the To Ka Yi Tso and/or the member of the To
Clan.
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The 2nd defendant, the Secretary for Justice, in exercise of her
role as parens patriae for charity denied the properties were beneficially
owned by the plaintiffs but claimed they were beneficially owned by
charity. The 2nd defendant maintained that Tsing Wan Kun was a name
under which the properties were registered and it was a religious tong or
charitable institution holding the properties for charitable purpose and
counterclaimed for a declaration to that effect.
On 26 November 1998 Yam J, in his judgment, declared that
the plaintiffs were the beneficial owners of Tsing Wan Kun and all the
properties registered under its name and that Tsing Wan Kun and its
properties were not a charitable and/or religious trust and/or tong and
further that the Chinese Temple Ordinance, Cap. 153 was not applicable to
Tsing Wan Kun. The counterclaim of the Secretary for Justice in respect
of the properties was dismissed.
The present appeal is by the 2nd defendant, the Secretary for
Justice, against the judgment of Yam J.
The background, the legal propositions and most of the
evidence of the case are not challenged and may be summarised as follows:
Background
Within a complex commonly known as the Tsing Shan
Monastery (����) are the Tsing Wan Kun temple (���) and the Tsing
Shan Tsz (���), the former is a Taoist temple while the latter is a Buddhist
monastery. The To Clan (����) was one of the earliest settlers in the
Tuen Mun area in the New Territories. To Ka Yi (���) of the 4th
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generation of the Tos Clan who died in 1454 was one of their forefathers
settled in Tuen Mun and the To Ka Yi Tso (����) represented by the 1st
plaintiffs carried his name. In the ancestral hall of Tsing Shan Tsz, there
is still a wooden epitaph or ancestral tablet (����) carrying the name of To
Ka Yi with the description “the tablet of the founder and donor of land to
the temple Mr To Ka Yi (������������). Other members of the later
generations of the To Clan included in the epitaph were To Ting Kui (���),
To Ting Shuen (���) and To Sik Kwong alias To Wai Fong (��������).
To Wai Fong died in 1880 some four hundred years after To Ka Yi’s death.
Thus the tablet could not have been created earlier than To Wai Fong’s
death in 1880.
Tsing Wan Kun Temple
There is no direct evidence as to who exactly built the Tsing
Wan Kun temple and when it was first built; neither is there direct evidence
to show who were the owners through the ages. In 1661, the Tsing
Emperor Kang Xi (��) by decree ordered coastal settlements to withdraw
50 miles inland. If To Ka Yi was the one who first built the temple in the
15th century, the original temple could have been demolished pursuant to
the decree and the present one was rebuilt years later. There are various
relics in the temple bearing dates which could cast light on the likely time
when the present temple was built. The stone lintel at the entrance to the
temple has the date of the 9th year of Dao Guang (����) i.e. 1829. A bell
donated to the temple has the date of the 22nd year of Dao Guang (������)
i.e. 1842, and the date inscribed on a memorial stone in the temple
commemorating donors to the temple is the 23rd year of Dao Guang (����
��) i.e. 1843. There are nine donors of “fields” or “field rentals” named
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on this stone. Seven of them including To Ka Yi (����) and To Sik
Kwong (���) are of the To Clan. The remaining two are not Tos and
they are Fan Kwong Chiu (���) and Tang Yuen Wing (���). While
these relics do not show when the temple was built, they at least show that
the To Clan had been involved in the temple as early as the 19th Century, if
not earlier. The memorial stone also contained references to donations
made from fields of Tai Lang Shui (���), Siu Lang Shui (���) and Yeung
Siu Hang (���) but these are names of places in the Tuen Mun area and
not identifiable with any specific fields from which the donations came.
Some of the entries in the Grain Book (��) of To Tong Hing show that
rental had come from fields of the To Clan in these places, but these are of
little significance in showing the ownership of Tsing Wan Kun.
Lantern Lighting Ceremony
The To Clan has a tradition of performing the Lantern
Lighting Ceremony (����) each year on the 15th day of the first month of
the lunar calendar. This is a To Clan activity to celebrate the extension of
the Clan and would be carried out whenever a male descendant is born.
The ceremony is a precondition for the new born male descendant to be
recognised as a member of the To Clan. The procedure for this ceremony
is set out in the Lantern Lighting Book (����) which has records dating
back to 9th year of (Ham Fung) 1859 (����) of such ceremonies.
According to this book, when the ceremony takes place, lanterns would be
hung in the ancestral hall (��), Hou Kwok Temple (���) Ta Tsuen Temple
(���) and Tsing Shan (��), (the judge regarded this to mean Tsing Wan
Kun temple (���) because Tsing Shan Tsz (���) was not built until many
years later). In so far as Tsing Shan (��) is concerned, the octagonal
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lantern (���) would be hung in the Main Hall (�������), one small
lanternt (���) each would be hung before the Saints at the Entrance Hall
(�����), the God of the Earth (���), the Buddha (��) and the
Miscellaneous Shrine (��). Five small lanterns would be hung in the
Taoist Tso Tong Ancestral Hall (���������). The book records also
show that the To Clan had continued to perform the ceremony on many
occasions since 1859. Traditionally, the person in charge of Tsing Wan
Kun would provide vegetarian meals to the To Clan when they came to the
Tsing Wan Kun temple to perform this ceremony and this was also the case
when they came to perform the ceremony in 1996. But whether it was a
free meal is an issue in this case.
Land ownership after the Convention of Peking 1898
Following the Convention of Peking 1898, the British
Administration published in 1900 a report by the Colonial Secretary
Mr Stewart Lockhart on the New Territories. This report provides useful
information on land holding in the New Territories prior to 1898,
particularly on the various tenures of land holding. The report states that
in addition to land being owned by clans or private families and individuals
which could be sold, mortgaged or settled upon specific trusts, there were
Ancestral Land “Sheung Tin” (��) which was land set aside for ancestral
worship and the income from it was devoted to the upkeep of the ancestral
temple and to provide for assistance to and generally for the benefit of
members of the clan; Temple Land “Miu Tin” (��) which was land devoted
to the support and upkeep of a temple dedicated to the service of some
specially selected idol in the name of which the land was held and some of
those who originally subscribed towards the erection of the temple or their
descendants acted as trustees and kept account of the income and expenses;
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and Land held by Association “Ui Tin” (��) which was land purchased
with contributions by members of an association of villagers the income of
which might be used for the burial of a member or to assist a member to
emigrate or for such other good object as the members desired.
The report also detailed the steps taken out by the
Sub-District Committee-men to secure the registration of all the owners of
cultivated land in the New Territories in order to prepare a Crown Rent
Roll. This involved giving notices and distribution of registration forms
to persons claiming titles on land in the New Territories. Registration of
claims would have to be accompanied by title deeds or if such deeds had
been lost or destroyed, the claimants to the land were required to produce
substantial proofs of their ownership such as rent roll, receipts for land tax
and other particulars pertinent to the land in question.
The report also recommended that a Land Court be
established to deal with disputed claims to land. The Land Court was
duly established under the New Territories (Land Court) Ordinance, 1900
and was empowered to allow or disallow any claim in relation to land.
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The New Territories (Land Court) Ordinance, 1900 also
declared under s 17 that all land in the New Territories to be property of the
Crown during the period of the Convention i.e. 99 years from 9 July 1898
and as from a date fixed by the Governor by notification in the Gazette, all
persons occupying such land were declared trespassers as against the
Crown unless their occupation was authorised (1) by grant from the Crown;
(2) by other title allowed by the Land Court under the Ordinance; (3) by
licence from the Governor or other authorised government officers; or (4) a
claim to be entitled to such occupation had been presented to the Court and
had not been withdrawn or heard or disallowed.
After its 1st year of operation, the Land Court reported in 1901
that an elaborate procedure of demarcation of cultivated land in the New
Territories had been carried out. This involved issuing to all persons
claiming an interest in the land tickets bearing the lot numbers and
description of the holdings. All particulars of ownership were then
entered in a Demarcation Register kept by the demarcator. Landowners
with lot number tickets were invited to go before the Land Court and made
their claims on special forms provided by the court by a fixed date.
The Report on the New Territories 1899 – 1912 reported that
survey and demarcation work were carried out in this manner and at the
end of 1904, the Land Court finally determined all land claims and
compiled the Crown Lease Schedules and Rent Rolls in the New Territories.
By that time, the claimants’ only official documentary proof (visible sign)
of ownership of land was the lot number tickets. As they could be easily
lost or transferred, it was decided to issue to each land owner a “chap chiu”
(��) or certified extract from the Rent Roll of his holdings. This process
was carried out from May 1905 to September 1906 and the opportunity was
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also taken to make necessary corrections and additions to the original
Schedules attached to the Block Crown Lease.
The New Territories Land Ordinance, 1905 was enacted in the
meantime and under section 11, it enabled the court to recognise and
enforce Chinese custom or customary right affecting land in the New
Territories. This Ordinance also provided under section 13 for the
appointment of managers by a clan, family or tong to represent it and
registration of such managers where any land was held from the Crown
under lease or other grant in the name of the clan, family or tong and every
instrument relating to land held by a clan, family or tong which was
executed or signed by the registered manager of the clan in the presence of
the Land Officer and was attested by him, should be as effectual for all
purpose as if it had been executed or signed by all the members of the clan,
family or tong. It also provided that if after acquisition of land by a clan,
family or tong and within three months of it, no manager was appointed the
Crown might re-enter and the land would become forfeited to the Crown.
Under s 14 exemption from registration under the Companies
Ordinance, Cap. 32 might be granted to any clan, family or tong owning
land in the New Territories in respect of which a manager had been
registered, if such land was certified by the Land Office as being used for
agricultural, religious, educational or charitable purposes or similar uses
even though consisting of more than 20 members.
The new legislation thus put into effect a new system on land
holding in the New Territories.
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Block Crown Lease
Under this new system, Block Crown Lease was granted in
respect of the different New Territories demarcation districts between the
Crown and persons holding land in the districts at the time. These
persons could be clans, families and “tongs” or their successors and
managers. They all became Crown Lessees and were registered in the
Schedules to the Block Crown Lease. Before a grant was made to the
lessee and inclusion of him in the Schedule, his entitlement to land holding
would have been carefully investigated but there could be mistakes. The
Block Crown Lease thus also made provision for later amendments to be
made to the Schedule by Substituted Schedule and Supplemental
Schedules.
In the Schedule to the Block Crown Lease, the owner of Lot
416 in DD 131 described as Garden lot was “Tsing Wan Monastery,
trustees Tang Po Yun & To Tong Hing” (���, �����, ���); the owner
of House lots 1, 2 & 3 in DD131 described as temple lots was “Tsing Wan
Monastery, trustee Tang Po Yun” (���, �����) and the owner of lots 37,
75, 640, in DD132 described as dry padi and lots 17 to 36 in DD 138
described either as waste or padi was also “Tsing Wan Monastery, trustee
Tang Po Yun” (���, �����).
In June 1911, the District Land Office in Taipo issued a
certificate of an extract from the Rent Roll (��) in respect of the lots in
DD130, 131, 132 and 138 held in the name of Tsing Wan Kun certifying
that Tsing Wan Kun with To Tong Hing and Tang Po Yun as trustees were
owners of the lots and stated that the certificate was to enable the
landowners to identify their lands in the Land Office register.
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Thus, Tsing Wan Kun must be a clan, family or tong within
the meaning of s 13 of the New Territories Land Ordinance, 1905 holding
land through the managers, otherwise Tsing Wan Kun could not have been
a grantee of the leases of the lots in question under the Block Crown Lease.
The parties’ contentions and legal propositions
The question thus arising is: who are the members of the clan,
family or tong comprising Tsing Wan Kun.
To this question the plaintiffs’ contention is that the name
Tsing Wan Kun was used to denote properties of the To Clan used for
building the temple of Tsing Wan Kun and maintaining it and for carrying
on activities of the To Clan. The managers held the land for the benefit of
members of To Ka Yi Tso and/or the To Clan. It follows that the To Ka Yi
Tso and/or the To Clan are therefore the members of Tsing Wan Kun.
The 2nd defendant’s contention is that the managers held the
land on charitable trust because Tsing Wan Kun was a charity or the land
granted to Tsing Wan Kun was held on charitable trust.
The parties do not dispute the following legal propositions
under Chinese customary law applicable to the present case:
(a) A tso or lineage may be the beneficial owner of a
monastery or a temple for the worship of deity
even though the land of the temple is registered
in the name of the monastery or temple and not
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the name of the Tso or Lineage. The interest
of a tso or lineage in a temple may be disposed
of as in the case an individual owner. This
proposition is based on the common opinion of
Professor Baker called by the 2nd defendant and
Professor Dicks called by the plaintiffs;
(b) A person may give his own property to a tong
and thereafter the property will cease to be his
own and will become the common property of
the tong and can only be sold or transferred in
accordance with the custom of that tong or with
the agreement of all members of the tong;
(c) A tong set up for the benefit of settlers and their
descendants may have managers not with the
same surname as the settlers and his descendants
when land is registered in the name of a tong
with managers appointed, the better view is that
the legal title is vested in the managers on trust
for the tong (Chu Tak Hing v. Chu Chan
Cheung-kiu [1968] HKLR 542); and
(d) A tso and a yuen which is itself in the nature of a
tong, can have the same membership and yet
they have different identities in a sense that they
hold different properties and have separate
accounts and are managed by different managers;
each is a separate legal entity although each has
the same members (Tang Yau Yi Tong v. Tang
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Mou Shau Tso [1996] 2 HKC 471).
On these propositions of law, it does not matter that the
grantee of the leases in the Block Crown Lease was in the name of Tsing
Wan Kun only, that no reference was made therein to To Ka Yi Tso, that
Tang Po Yun was named therein alone or together with To Tong Hing as
managers or trustees of the land, neither of them manager of To Ka Yi Tso,
or that the members of Tsing Wan Kun and To Ka Yi Tso or the To Clan
were the same persons, if it can be shown that To Ka Yi Tso and/or the To
Clan were the persons who established Tsing Wan Kun. If that be the
case, the land was being held by the managers for the benefit of To Ka Yi
Tso and/or the To Clan.
Chan Chun Ting �����
One of the crucial figures in this case is Chan Chun Ting (��
�). He was originally a Taoist priest in Tsing Wan Kun but since some
time in 1909, he converted to Buddhism and became a monk. He later
established the Tsing Shan Tsz. He was then actively engaged in
purchases of land around Tsing Wan Kun. In August 1909, he sought to
buy lot 410 in DD131 for resale to a woman but because the deal with the
woman fell through, no purchase was made. In October, 1910, he
obtained a new grant of lot 417 and lot 418 which were lots situated within
lot 416 of DD131. In December 1911, he bought lot 440. The present
Wu Fa Dian (���) stands on lot 417 and Grand Precious Hall (����)
stands on lot 418 and the kitchen of Tsing Wan Kun stands on lot 440.
He further bought lot 484 which he later used as grave yard. Tsing Shan
Tsz came into existence on the completion of the Grand Precious Hall (���
�) in 1918. This date may be verified by the date of 1918 inscribed on
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the bell inside the Grand Precious Hall. His land purchases were all
registered either in his own name or in the name of Tsing Shan Tsz with
himself registered as manager. Chan Chun Ting is relevant because of the
allegation of the 2nd defendant that the Tsing Wan Kun properties were
donated by the To Clan to Chan Chun Ting by way of a document called
Sung Tip (��) in September 1914 and because Chan Chun Ting’s activities
in land purchases and the inscription on a piece of stone in the temple made
in the name of District Land Officer Ross – which the parties called “the
Ross Ruling” – could show that he was in charge of Tsing Wan Kun before
the Sung Tip came into existence.
The Ross Ruling
The Ross Ruling was inscribed on a piece stone located in
Tsing Wan Kun. This is an announcement dated March 1914 purporting
to have come from the then District Land Officer Ross. It states in effect
that the District Land Officer had adjudged Chan Chun Ting to be in charge
of Tsing Shan Tsz (���������������� …… �������������)
and from then onwards, no one was allowed to have any excuses to cause
disturbance in the place. It warned that anyone ignoring this notice
would be brought to trial and punished. Mr Stewart Buckle Carne Ross
was District Officer of the Northern District, New Territories in 1912 and
Tsing Shan Tsz was not completed until 1918. Thus, the reference in the
ruling in 1914 to Tsing Shan Tsz should be to none other than Tsing Wan
Kun.
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The Sung Tip ����
The document Sung Tip (��) was signed by four members of
the To Clan on 14 September 1914. The signatories were To Dian Kwai
(���) of the 16th generation, the Chief Elder of the Clan (������), To Yiu
Tung (���) of the 3rd segment of the 16th generation (������), To Tong
Hing (���) of the 2nd segment of the 16th generation (������) as manager
(��), and To Hei Ting (���) of the eldest segment of the 18th generation
(������). This is a document in the possession of the Tsing Shan Tsz at
all times and there is no evidence that the To Clan has a copy of it. The
signatories called themselves “mountain owners” (��). The document
states that these signatories had agreed to grant Pui To Tsz and Tsing Wan
Kun temple in Tsing Shan to Chan Chun Ting, in return for $360 giving
him the right of (��) in charge of the two institutions for him to maintain
worship and offerings (��) to the Buddha and Gods (��) there. This also
made Chan Chun Ting person in charge of (����) the income and
expenses relating to the two institutions and entitled him to maintain (���
�) and collect rentals and produce (����) from the fields and orchards of
the two institutions. By this document, the To Clan promised not to
demand more money from Chan Chun Ting or to replace him as the person
in charge (��) of the two institutions and Chan Chun Ting promised not to
hand over the charge of the place (����) to other persons. The sum of
$360 was handed over and receipt of it was acknowledged by To Yiu Tung
and To Hei Ting by signing on the Sung Tip.
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The Grain Book
There is in evidence a book with the name “Grain Book” (��)
marked at its edge in the possession of To Tong Hing’s grandson, To Kwai
Chuen (���). This is the Grain Book of To Tong Hing and this book
contained records of the receipt by To Tong Hing of rentals from the fields
of the To Clan. There were entries in the book indicating that rentals
were collected from fields in Tai Lang Shui, Siu Lang Shui and Yeung Siu
Hang. There were also a number of different entries, in particular, one in
the 34th year of Guang Xu (������) (1908) and one in the first year of the
Republic (����) (1911), with the chop of Tsing Wan Koon stamped on
them to indicate those particular rentals were for Tsing Wan Kun.
Crown Rent
The plaintiffs paid Crown Rent in respect of the properties of
Tsing Wan Kun in 1996 for the arrears between 1983 and 1996. Payment
was made after the plaintiffs joined in these proceedings. The
Government would accept payment by anyone, not necessarily by the
owner of the land.
Account Book
The To Clan also kept a “Record Book or Account Book of
the Tax Duties and Ancestral or Sacrificial Land separately managed in
equal shares by the three segments of the To Ng Lau Tong” (����������
�������). There is no dispute that To Ng Lau Tong is another name for
To Ka Yi Tso. Under the section “Annual tax grain and silver to be
collected from land and orchards assigned by mortgage for perpetuity to
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other people left by ancestor Ka Yi Tso is listed below” (������������
�������������) is an entry “Tsing Wan Koon at Tsing Shan every year
responsible for perpetual [transferred] land rice silver of 7 qian and 2
fen …) (���������������� …...). This book was considered by the
parties to be significant in the determination of the ownership of Tsing Wan
Kun. The 2nd defendant contends that the effect of the book in particular
this entry, show that the land held in the name of Tsing Wan Kun had been
transferred or assigned by To Ka Yi Tso or the To Clan to Tsing Wan Kun
by way of donation.
The plaintiffs’ case
The plaintiffs’ case is that their claim to ownership of the
properties is supported by the evidence of the epitaph, the memorial stone,
the To Clan’s rites of lantern lighting at the Tsing Wan Kun temple by
members of the To Clan, the lantern lighting book of the To Clan, the
provision of free vegetarian meals by those administering the temple to
members of the To Ka Yi Tso or members of the To Clan during the
opening and closing of the lanterns; the registration of To Tong Hing and
Tang Po Yun as joint managers of all the properties in an old “A” book in
the possession of the District Office, the Rent Roll certificate, the Sung Tip,
payment of Crown rents for the properties by members of the To Clan,
receipt by the Tso or To Clan of rents from tenants of the properties and the
Account Book.
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The 2nd defendant’s case
The 2nd defendant’s case is that none of the evidence proves
ownership of Tsing Wan Kun by the plaintiffs. On the contrary, the
Record Book entries show that the land in question had been perpetually
assigned or transferred to Tsing Wan Kun as a donation by the plaintiffs.
The 2nd defendant contends that the Ross Ruling was authentic and it was
made by the Land Officer after determination of Chan Chun Ting’s right in
Tsing Wan Kun so as to prevent the To Clan and other people from
interfering with the Chan Chun Ting’s management of the temple. The
Sung Tip is an important piece of evidence which shows that To Ka Yi Tso
or the To Clan had transferred the rights in the properties of Tsing Wan Kun
to Chan Chun Ting in return for $360 to enable him to run the temple as a
charitable and or religious tong for the benefit of the public as opposed to
the benefit of Chan Chun Ting himself or any individual and this is
confirmed by the Ross Ruling. It also shows, the 2nd defendant submits,
that Tsing Wan Kun had always been run as a Forest of Ten Directions (��
��) and the To Clan intended it to be run as such.
The judge’s findings
The judge found on the evidence of the Lantern Lighting
Book that the To Clan had an ancestral hall in Tsing Wan Kun where the
wooden epitaph was originally installed and where the octagonal main
lantern would be hung at the Lantern Lighting Ceremony. He found the
presence of the wooden epitaph in the temple indicated that the To Clan
had used the temple as their private temple because it was the popular
practice in the days of To Ka Yi to worship ancestors in a private temple
rather than in an ancestral hall. He found that To Ka Yi was named in the
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epitaph as the person who established the temple and that the memorial
stone commemorating the continued donation to the temple by members of
the To Clan show that the temple was treated by the To Clan as the property
of their Tso. He accepted the expert evidence of Professor Baker and
Dr Faure that it was common for a private temple outside a village to open
to public visitors and to receive offerings and donations to it by outsiders
and he found that Tsing Wan Kun had been open to public visitors and their
donations through the ages. That being the case, the inclusion of Tang
Yuen Wing (���) and Fan Kwong Chiu (���) in the epitaph and other non
To Clan donors in the memorial stone was not surprising. This did not
mean that the temple was not owned by the To Clan. The judge also
found that through the ages, when the occasion arose the To Clan would
perform the ceremony of lantern lighting at Tsing Wan Kun and that was a
ceremony exclusive to members of the To Clan to mark the extension of
their clan. He accepted that when such ceremony took place, the
members of the To Clan would be provided with vegetarian meals by the
person in charge of the temple and while members of the To Clan might
make a payment in the form of incense money as part of their worship in
the temple, the vegetarian meals were free. The judge found that such
payment was entirely independent of the provision of vegetarian meals
which was regarded by the To Clan as a symbol of their ownership of the
temple. He came to this conclusion based on the expert evidence of
Professor Dicks that lay donors who established the temple and owned the
property of the temple would invariably be treated with a free vegetarian
meal to mark their right of ownership and control over the temple and this
was especially common in South China.
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Attacks on the judge’s findings
The 2nd defendant attacks the findings on the ground that the
wooden epitaph does not identify the temple and the fields To Ka Yi was
said to have donated and thus it has no probative value. There is no
evidence, it is submitted by the 2nd defendant, that To Ka Yi had founded
Tsing Wan Kun and made it the property of the To Clan. If To Ka Yi had
donated the temple, he had severed his ownership of it. The donations to
the temple by members of the To Clan do not prove ownership of the
properties by the plaintiffs. It is submitted by the 2nd defendant that the
judge’s conclusion that Tsing Wan Kun was a private temple of the To Clan
because he found that the wooden epitaph was originally installed in an
ancestral hall in the temple was a pure conjecture. Donations by
non-members of the To Clan to the temple cast doubt on the plaintiffs’
claim that the temple was a private temple belonging to the To Clan or the
To Ka Yi Tso. The 2nd defendant also makes various attacks on the
judge’s interpretation of the memorial stone inscriptions and his findings
regarding the significance of the Lantern Lighting Ceremony. In
particular, the 2nd defendant submits that the judge was wrong to regard the
reference in the Lantern Lighting Book to “Tsing Shan” (��) as reference
to Tsing Wan Kun, the reference to the “Main Hall” (��) as the Dou Lou
Dian (���) and the reference to “The Saints at the Entrance Hall” (�����)
as the entrance hall to Tsing Wan Kun where there is no evidence to that
effect. The attack is also aimed at the judge’s apparent failure to have
regard to the evidence of To Yau Shun (���), the village chief and one of
the plaintiffs’ To Man Hing (���) as to the frequency of the Lantern
Lighting Ceremony over the years before reaching his conclusion that the
ceremony had been performed continuously over the years. It is also
submitted that it is a communal right to lit lantern in a temple and that does
- 22 -
not indicate ownership of the temple and the exclusivity of the To Clan to
carry out the ceremony at Tsing Wan Kun has no evidential basis. The
2nd defendant further points out that there is no evidence to show that
members of the To Clan had meals at Tsing Wan Kun since the meals were
served out of the kitchen standing on the land granted to Tsing Shan
Monastery. There are other attacks on the inferences drawn by the judge
in relation to free vegetarian meals provided at Tsing Wan Kun to members
of the To Clan and the meaning of Shan Chu (��) adopted by the judge.
Consideration of the judge’s findings
The judge’s conclusion is that the wooden eptiaph, the
memorial stone, the lantern Lighting Ceremony Book, the conduct of
lantern lighting ceremony, the free vegetarian meal, the Account Record
Book together with the Sung Tip are sufficient for him to find on the
balance of probabilities that the Tos established and owned Tsing Wan Kun
before the British Administration in 1898.
As to the significance of the entry “Tsing Wan Koon at Tsing
Shan every year responsible for perpetual [transferred] land rice silver of
7 qian and 2 fen” (��������������� ……) in the Account Record
Book, whether it shows the To Ka Yi Tso, if they owned the fields of Tsing
Wan Kun, had perpetually assigned or transferred or mortgaged them away
(�����) the judge relying on the expert evidence found that this did not
mean severance of the fields by the To Ka Yi Tso. Rather it was the
record of an alienation of the surface rights of the fields in return for an
annual payment for tax liabilities and the retention of the right to the
subsoil.
- 23 -
The 2nd defendant in her submission embarks on a detailed
analysis of the Account Book or Record Book and putting up her own
interpretation of the Chinese wording in this piece of evidence, in particular
the phrases “dian duan tian” (���) and “gai duan tian” (���) the
2nd defendant argues that the judge was wrong to conclude that the Account
Book indicated that only the surface interest were transferred by the To
Clan to the temple and that the To Clan retained the subsoil and remained
responsible for tax duties. It is submitted that if the To Clan remained as
tax lords, that would probably not be recognised by the Land Court as
sufficient basis for their claim to ownership.
The evidence of the Account Book, in our view is not
sufficient to prove conclusively that the To Clan had ownership of the
properties in question but it is evidence which the judge could and in fact
did take into account in his overall assessment of the evidence which is
relied on by the plaintiffs as the basis of their claim. This is a record of
the division of the tax responsibility of the three segments of the To Clan in
relation to fields owned by the clan. This is also a record of the existing
land properties and those left by their forefathers. If the land had been
perpetually donated to Tsing Wan Kun, the To Clan would not be still
concerned with tax duties. Professor Dicks gave the probable explanation
to the phrase “gai duan tian” (���) and he said what was absolutely or
irrevocably sold to Tsing Wan Kun was the surface right of the field leaving
with the To Clan the ownership of the subsoil and Tsing Wan Kun was to
pay an annual sum sufficient for the To Clan to defray the tax duties due
from them as owners of the subsoil. That explanation was not
unreasonable and had not been challenged. The judge was entitled to
accept it and to rely on it for his conclusion. The judge cannot be faulted
in accepting the evidence and his conclusion should not be disturbed.
- 24 -
On the Sung Tip, the judge found the document was signed by
the four members of the To Clan on behalf of To Ka Yi Tso in the capacity
of “Shan Chu” (��) which the judge found to mean owner of the temple.
The judge found the effect of this was that the To Clan gave to Chan Chun
Ting a right in the form of a licence, to be the abbot of the temple for life.
He found the absence of the signature of Tang Po Yun, the manager of
Tsing Wan Kun, showed that Tang Po Yun or his clan had no beneficial
interest in Tsing Wan Kun. He drew the inference that the Tos owned the
temples and for $360, they appointed Chan Chun Ting as the abbot of Tsing
Wan Kun for life.
The 2nd defendant attacks the findings of the judge in respect
of the Sung Tip in the same manner as she does in respect of the Account
Book. After an analysis of the document’s wording, she argues that in the
light of the land purchasing activities carried on by Chan Chun Ting
starting from 1910 showing that Chan Chun Ting was already in place in
Tsing Wan Kun, he could not have been there without the To Clan’s consent
if they were the owners and that the judge’s conclusion that Chan Chun
Ting derived his right of management of the temple from the Sung Tip is
incorrect.
The wording in the Sung Tip, no matter how one interprets it,
does not in any way indicate that it was anything other than the granting of
a right of management of the temple to Chan Chun Ting for life in return
for a consideration of $360, with the undertaking by the To Clan that Chan
Chun Ting would have quiet enjoyment of his continued right of
maintaining and worshipping the Buddha and Gods of the temple and to
receive rents and produce from the land. While any change in the
- 25 -
management should not be carried out without the consent of the To Clan,
it is a grant of the right to manage by the To Clan reserving to themselves
the ultimate right of control. In our opinion the judge’s conclusion on the
Sung Tip must be correct. On the balance of probabilities, this means that
the To Clan should have ownership of the temple before any such grant
could be made by them to Chan Chun Ting.
For the various reasons the judge stated in his judgment, he
doubted the authenticity of the Ross Ruling. Those are cogent reasons.
In particular, the judge found there was no record of it in Government files
and if the ruling was genuine, it must have been registered as required
under the New Territories Land Ordinance 1905. Nor was it recorded in
the administration reports which recorded disputes in the New Territories.
If it were a land claim dispute, it should have been dealt with in the Land
Court and not by the District Land Officer. The only possible dispute that
the ruling could have referred to was that between Chan Chun Ting and
Madam Wong who was employed by the former but that should not have
been dealt with by the District Land Officer. Further there was no
mention of the ruling in any of the studies carried out on the history of the
Tsing Shan Monastery nor is there evidence as to when it was first installed.
He attached no weight to it.
We have no hesitation to conclude that the judge was right in
giving no weight to the Ross Ruling and no attack can be justifiably made
on what weight the judge placed on the evidence which he had heard and
considered. That ruling, even if it were authentic, indicates no more than
that the Land Officer had resolved a dispute as to who was the person
recognised by the Land Office as being in charge of the temple at that time.
That did not decide on ownership. Nevertheless, the judge cannot be
- 26 -
faulted in his decision in this respect.
On the question of only Tang Po Yun and not To Tong Hing
was named in the Schedule to the Block Crown Lease as trustee of the lots
registered in the name of Tsing Wan Kun except in the Supplemental
Schedule where To Tong Hing was named as a co-trustee in respect of lot
416 in DD131, the judge found that Tang Po Yun was the caretaker of Tsing
Wan Kun for the time being when the exercise of registration of land
holding took place prior to the drawing up of the Rent Roll and the Block
Crown Lease. Because Tang Po Yun was there at the field, he was
registered. To Tong Hing was subsequently recognised and approved as a
manager, resulting in a correction being made to include him in the Crown
Lease as a co-manager by way of the Supplemental Schedule. This is
further confirmed by the certificate of an entry in the Rent Roll naming
both as trustees of the land registered in the name of Tsing Wan Kun. The
judge further relied on the Memorial of Assignment of Lot 1297 in DD132
where the transferor was stated to be Tsing Wan Kun with Tang Po Yun and
To Tong Hing as trustees. The judge opined that the fact that the Tang
Clan had not come forward to make a claim to ownership of Tsing Wan
Kun or participated in these proceedings was most material and concluded
it was more probable that Tang Po Yun was a caretaker employed by the To
Clan at the temple.
The 2nd defendant’s contention is that Professor Baker’s
expert evidence is that no outsider may be appointed as a manger of land
held by a Tso and the judge was wrong to conclude that Tang Po Yun was a
caretaker at the temple. It is submitted that the judge failed to appreciate
the significance of the role of Tang Po Yun as manager of Tsing Wan Kun.
- 27 -
In our view, there is no doubt Tang Po Yun was a manager of
Tsing Wan Kun and this was accepted by the Land Office. But this is not
inconsistent with the judge’s conclusion that he was there as caretaker of
the temple when registration took place prior to the grant of the lease.
The fact remains that To Tong Hing was a manager of Tsing Wan Kun,
albeit he was appointed subsequently and included in the Block Crown
Lease by way of the Supplemental Schedule. That being so, Tang Po Yun
was also a manager would not affect the plaintiffs’ claim that they were
beneficial owners of the land. The descendants of Tang Po Yun or the
Tang Clan that he represented, if there was such a clan, may have a similar
claim but that does not assist the 2nd defendant’s contention that Tsing Wan
Kun is incapable of private ownership in that it was subject to a charitable
trust.
The judge rejected the contention that Tsing Wan Kun was run
together with Tsing Shan Tsz as a Forest of Ten Directions (����), and that
the To Clan had transferred the ownership of the temple and its properties
to Chan Chun Ting by way of the Sung Tip. The judge came to his
conclusions by drawing the necessary inferences from the accepted
evidence.
It is agreed by the parties that a Ten Directions Forest or Ten
Directions Monastery (����) is a Buddhist establishment to receive monks
from all directions and to provide communal food and shelter to them
without distinction and discrimination for the purpose of cultivating their
faith and to promote the dharma. The establishment and the monastic
property belong to the public.
The evidence of Dr. Lai Chi Tim (���) is that Chan Chun
- 28 -
Ting became the person formally in charge of Tsing Wan Kun after the
Sung Tip which required him to maintain of the Buddha and worship Gods.
Tsing Wan Kun remained a temple worshipping the Taoist Dou Mou (��)
and Wong Ling Koon (���) and cerebrating Taoist religious rites. The
Taoist symbol of Ying Yang (��) is still installed in the temple. The To
Clan performed their Lantern Lighting Ceremony at the temple each year.
Tsing Shan Tsz was not built until 1918. These were all inconsistent with
the Buddhist institution of a Ten Directions Monastery open to the public
generally. The judge found that Chan Chun Ting had not acquired
absolute proprietary right to the temple and he could not have changed it to
a monastery. On the evidence the judge was entitled to his conclusion
that it was not possible that there was an amalgamation of the two
establishments to form a public monastery as suggested by the
2nd defendant. These conclusions are findings of fact that are well borne
out by the evidence.
The 2nd defendant’s submission is that all the evidence,
putting it at its highest, merely show an association with Tsing Wan Kun by
the To Ka Yi Tso or the To Clan in the mid 19th Century but there is no
evidence that Tsing Wan Kun was in lay ownership or that To Ka Yi Tso or
the To Clan owned the temple. It is also submitted that there are other
inferences that can be drawn from the evidence and the inferences drawn
by the judge are wrong.
- 29 -
Conclusion on the judge’s findings
As we have mentioned elsewhere in this judgment, there is no
direct evidence as to ownership of Tsing Wan Kun. As counsel for the
2nd defendant have stated at the beginning of the appeal, the question is
largely to be decided on facts. While a particular item of the evidence
alone may not justify the plaintiffs’ claim of ownership and while an
inference from a particular piece of evidence may not support the plaintiffs’
case, the judge is entitled to take a global view of all the evidence before
him and ask himself the vital question: “On all the evidence before me
which I accept, have the plaintiffs proved that they are the beneficial
owners of the properties in question?” If the judge after considering all the
circumstances, and on his evaluation of the evidence, found the plaintiffs’
case proved and the evidence supports his conclusion, the Court of Appeal
is not there to interfere.
Judge’s approach on standard of proof
The 2nd defendant submits that the judge had embarked on
speculation and was wrong in his approach to the evidence because he
should not have based his conclusions on one of several possible
inferences.
Although the judge in his judgment had on a number of
occasions referred to the inferences he drew as irresistible or necessary
inferences from the evidence, the judge had not departed from the
established standard of proof of balance of probabilities. The judge was
entitled to base his conclusion on the more probable inferences from the
evidence.
- 30 -
Suffice to say, the 2nd defendant’s case on appeal is to a large
extent founded on attacks on the judge’s interpretation and evaluation of
the evidence and his findings of fact. What weight the judge attached to
the evidence and what inferences he drew from the evidence is a matter for
him. If he reached a conclusion which is against the evidence, that
finding may not be upheld. But if the findings are supported by the
evidence he accepted as true and the findings are not unreasonable or
contrary to common sense, then there can be no reason for them to be
disturbed. We do not see these findings of the judge are against the
evidence. The attacks on his findings are unjustified.
Whether Tsing Wan Kun is on “temple land”
The 2nd defendant also suggests that the land on which Tsing
Wan Kun was built and described as “temple land” in the Block Crown
Lease is “temple land” as defined in the Lockhart Report. There “temple
land” is land devoted to the support and upkeep of a temple dedicated to
the service of some specially selected idol in the name of which the land is
held. Subscribers to the erection of the temple would be trustees to run
the affairs of the temple. It is submitted that the plaintiffs could not have
retained ownership of the temple. It is further submitted that Tsing Wan
Kun was a religious tong and does not belong to anyone exclusively.
The plaintiffs regard the 2nd defendant has wrongly
represented their case and submit that it was never their case that as donors
of land to Tsing Wan Kun, they retained ownership under customary law or
as a result of the grant of the Block Crown Lease. Their case is that the
land had always been held by Tsing Wan Kun before or after the grant of
- 31 -
the Block Crown Lease and Tsing Wan Kun being an institution in the
nature of a clan, family or tong is capable of holding land. The plaintiffs
are members of this institution. The plaintiffs also refute the suggestion
that Tsing Wan Kun is a religious tong without members on the ground that
the system under s 13 of the New Territories Land Ordinance, 1905 would
not work unless a tong has members.
We consider the description of land in the Block Crown Lease
is not descriptive of the purpose for which the land had been granted but
rather a description of the usage the land at the time of the grant. The fact
that the lots on which Tsing Wan Kun was built is stated to be temple lots
does not mean the land had been set aside for the support and upkeep of a
temple. In any case, the land is held in the name of Tsing Wan Kun and is
not held in the name of some idol for whom the temple has been built and
dedicated. Thus, the land is not temple land within the meaning of the
Lockhart Report but is land capable of ownership by a clan, family or tong.
The fact that the various lots have been granted to Tsing Wan Kun as lessee,
as we said earlier, must mean that Tsing Wan Kun was accepted as a clan,
family or tong with members capable of holding land. The suggestion of
the 2nd defendant is not sustainable.
Tsing Wan Kun temple ownership
A further suggestion advanced by the 2nd defendant is that
Tsing Wan Kun was owned by a hereditary family of clergy and could not
have been a temple in the private ownership of the To Clan.
- 32 -
However, the evidence is that under Chinese customary law,
there can only be four types of temple ownership: ownership by all people
of that faith such as a public monastery; ownership by a body of clergy
residing and forming a pseudo-family there; ownership by individual or
clan, family, lineage or tong and ownership by the residents of the area
where the temple is established for their benefit. The judge found Tsing
Wan Kun too small to be a public temple owned by all people of the Taoist
faith and the fact that the To Clan controlled and used the temple is
evidence to the contrary. There is no evidence to suggest that Tsing Wan
Kun is a temple built and paid for by people of the area as to make it a
communal temple. Further there is no evidence that Tsing Wan Kun has a
family of clergy. The judge accepted the evidence that where the temple
was held in ownership of a family of clergy, the temple property could be
disposed of and the proceeds kept by the clergy. This defeats any
suggestion that the temple was held on charitable trust since it would only
be on charitable trust if the temple could not be used for any purpose but
charitable purposes. The way the judge proceeded on the evidence and
his conclusion that the temple was in private ownership are unassailable.
The fact that Tsing Wan Kun was a temple for the advancement of religion
or it was set up, undoubtedly, for religious purposes, does not ipso facto
make the temple subject to a charitable trust.
Chinese Temple Ordinance, Cap. 153
Part of the 2nd defendant’s case is that the Chinese Temple
Ordinance, Cap. 153 applies to Tsing Wan Kun and its properties and when
the Ordinance applies, the plaintiffs’ claim fails.
- 33 -
The 2nd defendant’s submission is that Tsing Wan Kun is part
of Tsing Shan Monastery and a component part of a Buddhist institution.
There is no evidence that it is run as an institution separately and
independantly of Tsing Shan Monastery. Tsing Shan Monastery was
registered under the Ordinance and the Ordinance therefore applies also to
Tsing Wan Kun. Alternatively, if Tsing Wan Kun is an independent
Chinese temple, it is registerable under the same so that the Chinese
Temple Ordinance equally applies. The plaintiffs’ claim of private
ownership of the temple must fail and the judge was wrong to allow the
plaintiffs’ claim.
The plaintiffs on the other hand contend that Tsing Wan Kun
has never lost its separate identity to become part of Tsing Shan Monastery
for any purpose. There is no evidence that any of the properties of Tsing
Wan Kun had been subject to the control of the Chinese Temples
Committee. The history of the temple shows that since 1963, when there
were protests by the To Clan against the sale of part of the properties of the
temple, a matter which the Chinese Temples Committee had notice and
should be concerned with, there was no indication by the Chinese Temples
Committee that they would intervene. The evidence shows not only that
the Chinese Temples Committee had been invited but decided not to
participate in these proceedings but that they had decided not to exercise
their powers under sections 7 and 8 of the Ordinance to assert control over
the temple and require the transfer of the temple properties to them. The
plaintiffs therefore submit that the Ordinance is not intended to apply to a
clan or family temple in the New Territories and Tsing Wan Kun is not
within the ambit of the Ordinance.
- 34 -
What the judge found is that the registration of Tsing Shan
Monastery does not include Tsing Wan Kun and the two are distinct entities
of land holding. He was of the view that by reason of section 13 of the
New Territories Ordinance, Cap. 97 which provides for the recognition and
enforcement of Chinese custom or customary right affecting land in the
New Territories by the court in any proceedings in relation to such land, in
the same manner as the Partition Ordinance, Cap. 352 has been found not
applicable because partitioning the properties would be disruptive of the
social structure of the clan (Tang Kai Chung & Anr. v. Tang Chik Sang &
Ors. [1970] HKLR 276), the Chinese Temple Ordinance has no application
to a Chinese temple owned and operated by a clan, family or tong in the
New Territories. He also thought that if the income and property of a
temple owned and operated by a clan, family or tong came under the
control of the Chinese Temples Committee, this would be against the
Chinese customary rights because that might lead to the property and
income of the temple being used for a purpose different from that for which
the clan, family or tong had been set up. He further found that the
legislature had no intention that the Ordinance should apply to privately
owned temples.
The Chinese Temple Ordinance clearly applies to all Chinese
temples in Hong Kong. Section 5 requires registration before a Chinese
temple can be established or maintained except those exempted under
section 13 and specified in the Schedule. Section 7 of the Ordinance puts
the revenues, funds, investments and properties of all Chinese temples
under the absolute control of the Chinese Temples Committee. It also
empowers the Committee to require transfer of the temple assets to the
Secretary of Home Affairs Incorporated. The revenues from the
operation of the temple would be applied first to observance of the
- 35 -
ceremonies and the maintenance of the temple and the surplus would be
transferred to the General Chinese Fund for Chinese charity in Hong Kong
after deduction of all outgoings.
In our opinion, the wording of these sections are certain that
the Ordinance applies to a Chinese temple wherever it is in Hong Kong
until it exempted by inclusion in the Schedule by order in council. The
speech of the Hon. Sir Shou Son Chow moving the Bill as reported in the
Hansard relied upon by the judge, puts this beyond doubt. The legislator
said:
“The Bill provides machinery by which this control can be made effective. The exempted temples, a list of which is contained in the Schedule to the Ordinance, are temples which were originally established by private individuals or particular families, and which are still maintained by the descendants of the original founders, and are managed unobjectionably, though, of course, the profits go to the private owners. One of these temples is the Tin Hau Temple, of Tung Lo Wan, which was established 180 years ago by the Tai family. The Governor in Council will have power to add to this Schedule in any proper case. I would draw attention to the fact that all Chinese temples whatsoever will have to be registered under the Ordinance when it becomes law. This is an obviously necessary provision to which no exception can be taken.”
His reference to privately owned temples was only to those
which were considered appropriate for exemption and it was not a general
reference that all privately owned temples would be exempted from the
application of the Ordinance. In fact, the plaintiffs in their submission
have mainly contended that Chinese Temples Committee had never
exercised their powers under the Ordinance in relation to Tsing Wan Kun
nor participated in these proceedings to assert their control over the
properties. The plaintiffs have not argued with conviction that the
Ordinance does not apply to a Chinese temple in the New Territories. We
- 36 -
are of the view that Tsing Wan Kun is certainly registerable under Chinese
Temple Ordinance. Be that as it may, until the Chinese Temples
Committee assert their control so that the surplus, if any, of the revenue of
the temple may go to the Chinese Charity Fund and exercise their powers
to require a transfer of the temple properties to them, Tsing Wan Kun
remains the property of and under the control of whoever had ownership of
it at the time. The fact that Tsing Wan Kun may be a Chinese temple
registrable under the Ordinance and subject to the control of the Chinese
Temples Committee does not affect the plaintiffs’ claim of private
ownership of the temple and indeed the Ordinance does recognise there are
temples capable of private ownership. The application of the Ordinance
does not make a temple which is not a charity or temple land not subject to
a charitable trust a charity. The effect of registration is control, and the
powers of the Chinese Temples Committee to apply surplus of the revenues
of the temple for the purposes of any Chinese charity in Hong Kong does
not transform the setting up of the temple to being for charitable purpose
where that was not the purpose. The history of non-intervention by the
Secretary for Home Affairs and the consistent refusal of the Chinese
Temples Committee to assert their control and exercise their powers under
the Ordinance is a fair indication that the Committee has not considered it
desirable to disturb the Chinese customary rights of the clan, family or tong
to the temple. In any case, this is not all that relevant to the claim by the
2nd defendant that Tsing Wan Kun is subject to a charitable trust.
In our view, the Chinese Temple Ordinance does not assist the
2nd defendant’s case.
- 37 -
The question of charitable trust
In the light of the judge’s conclusion that Tsing Wan Kun was
beneficially owned by the plaintiffs, the question raised by the
2nd defendant that the temple was a charity or held on charitable trust does
not arise for consideration. It is well established English law that a trust
to be so qualified must be for objects exclusively charitable (see Dunae v.
Byrne [1912] A.C. 407; A.G. of New Zealand v. Brown [1917] AC 393; A.G.
of Bahamas v. Royal Trust [1986] 1 WLR 1001). Moreover, it is not
argued, nor are we persuaded, that the institution of charitable trust exists in
Chinese customary law or that there is any sufficient evidence that there is
a law or custom of charity applicable to the New Territories that differs
from the English legal concept of charity for exclusively charitable
purposes. The plaintiffs’ ownership of the temple prevents it from being
a charitable institution. However slight the beneficial interest of the
plaintiffs in the temple, in the sense as suggested by the 2nd defendant that
the Tangs through the managership of Tang Po Yun have or may have a
share or that the plaintiffs’ predecessors had by virtue of the Sung Tip
retained little interest in the temple after having given or granted for
consideration a life interest in it to Chan Chun Ting, must also necessarily
exclude the temple from being a charity.
Burden of proof
One of the attacks by the 2nd defendant on the judgment is that
the judge failed to appreciate the significance of the burden of proof to be
discharged by the respective party in the present case. The judge was
wrong to find that there were rivalry claims between the plaintiffs and the
2nd defendant and that the 2nd defendant had a burden to prove a positive
- 38 -
case.
What the judge decided was that in a case of this nature where
each party put forward a different contention as to the beneficial ownership
of the properties, it was only a matter of case management as to who should
be made plaintiffs.
The submission of the 2nd defendant is that the burden is on
the plaintiffs to prove they are the beneficial owners of the properties which
are registered in the name of Tsing Wan Kun. Her role in the case as
parens patriae does not involve a positive claim. Where private
ownership is claimed in respect of land which may be subject to a trust for
the benefit of the public, the 2nd defendant has locus standi to argue for
public benefit against the claim. Reference is made to the Order of
Godfrey J (as he then was) in March 1992 in the proceedings between the
then Attorney General and the Secretary for Home Affairs Incorporated.
The 2nd defendant submits that the Order was made on the basis that the
properties in the name of Tsing Wan Kun were subject to a charitable trust
and therefore she could argue against the claim for private ownership. It
was not necessary for her to prove the existence of a charity before she
could have locus standi in this case. But if the plaintiffs succeed in their
claim of private ownership, the 2nd defendant’s case would fail.
The plaintiffs submits on the other hand that the Order of
Godfrey J did not bind the plaintiffs who were not parties to the
proceedings between the Attorney General and the Secretary for Home
Affairs Incorporated. In a case of the present nature, what the judge was
required to do is to decide who beneficially owned the properties and it
would not be right for the judge to consider the parties’ respective case in
- 39 -
any particular sequence.
We consider that the main issue in the present case is whether
the plaintiffs are the beneficial owners of the properties registered the name
of Tsing Wan Kun and held by the managers as trustees. If the plaintiffs
succeed in proving they are the owners, then the claim by the 2nd defendant
that the properties are subject to a charitable trust or Tsing Wan Kun was a
charity would fail. If on the other hand the 2nd defendant could show the
properties are subject to a charitable trust, then she succeeds. If she is
unable to show charity or charitable trusts, she fails despite that there may
be claims by other clans against the plaintiffs with respect to the properties.
The Attorney General in the proceedings before Godfrey J
sought the appointment of the Secretary for Home Affairs Incorporated as
trustees for sixteen plots of land registered in the name of Tsing Wan Kun
which had been resumed by the Government so that compensations payable
for the resumption could be paid and held by them for the benefit of
whoever might subsequently be determined as the beneficiaries. The
plaintiffs were not made parties to the application and the Order was
obtained by consent and when the judge had not been fully informed of the
circumstances of the case. The plaintiffs were not there to argue for or
against the application and were not bound by the Order. Thus, although
the plaintiffs in their claim also sought to set aside the Order, the Order has
no bearing on the burden of proof in the present case.
Capacity of the plaintiffs
The last attack on the judgment is the capacity of the plaintiffs
in these proceedings. The 2nd defendant submits that in the absence of a
- 40 -
proper representation order under Order 15 rule 13 appointing the
1st plaintiffs to represent the members of To Ka Yi Tso and the 2nd plaintiffs
to represent all members of the To Clan in Tuen Mun, the plaintiffs’
authority to bring these proceedings is questionable. The basis of her
submission is that the 1st plaintiffs – the three managers of To Ka Yi Tso –
To Kan Chi, To Fuk Tim and To Kam Chau were not acting in unison in
bringing this case. This is evident from the reluctance of the plaintiffs to
call To Kan Chi to give evidence and To Fuk Tim for cross-examination on
the history of the To Clan. The 2nd defendant also questions the
representation of the 2nd plaintiffs on behalf of the To Clan. “To Clan”
has been pleaded to mean “all the male members of the five villages who
are descendants or successors of To Ka Yi” but it has not been shown that
that expression exhaustively includes all the male descendants of To Ka Yi.
The point on capacity was not taken by the 2nd defendant in
the court below. In any case, the effect of a representation order under
Order 15 rule 13 is that persons represented by the party will be bound by
the outcome of the action but will not be treated as parties for the purpose
of discovery or costs although as between them and their representative, the
question of costs is a matter of arrangement between them by contract or
otherwise. There is, however, no requirement in the case of a person
suing for himself and on behalf of other beneficiaries to apply for such an
order.
The history of the proceedings show that the plaintiffs were
allowed to join in the proceedings on the question of trust relating to the
properties of Tsing Wan Kun and Tsing Shan Monastery because of their
claim that the To Clan and members of the To Ka Yi Tso were the
beneficial owners of Tsing Wan Kun. The managers of To Ka Yi Tso
- 41 -
were named as the 1st plaintiffs because of the decision of Tang Yau Yi Tong
and Tang Tsan Wa (manager) v. Tang Mou Shau Tso and others where the
Court of Appeal directed that the manager of a Tso rather than the Tso
should be the plaintiff in proceedings brought by the Tso. This was not
objected to by the 2nd defendant. In any case, the plaintiffs are entitled to
take out the proceedings for themselves as they are members of the To Ka
Yi Tso and of the To Clan.
In our opinion, the fact that To Fuk Tin and To Kan Chi were
not called by the plaintiffs does not go against their authority to act in their
capacity as managers of the Tso to bring the proceedings for themselves as
well as other members of To Ka Yi Tso.
The unchallenged evidence from one of the 2nd plaintiffs To
Cheong Lam is that in accordance with their customs and traditions,
membership of the To Clan and the To Ka Yi Tso is the same and that is
every male member of the Clan. The residents of the five villages are
descendants from the three sons of To Ka Yi and members of the To Ka Yi
Tso are the males of such descendants. It is plain that the 2nd plaintiffs are
representatives elected by the members of the To Clan in these five villages.
The fact that To Ka Yi had a 4th son To Chun Mou is not relevant for all
intents and purposes, the parties having accepted that there are only three
branches of To Ka Yi’s descendants existing of the To Clan settled in Tuen
Mun and the plaintiffs are suing on their behalf. We do not consider the
point taken by the 2nd defendant on capacity would assist her appeal in any
way.
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Appeal dismissed
For the reasons given above, we find no ground to interfere
with the judge’s conclusion. The appeal is dismissed. We will hear the
parties on the 2nd defendant’s appeal against the judge’s order for costs and
also on the costs of this appeal.
(Arthur Leong)
Justice of Appeal
(K H Woo)
Justice of Appeal
(K.K. Pang)
Judge of the Court of First Instance
Mr Denis Chang SC, Mr John McDonnell QC, Mr Edward Chan SC and
Ms Isabella Chu, instructed by Messrs Miller Peart for
1st and 2nd plaintiffs
Mr Patrick Fung SC and Mr Ambrose Ho, instructed by
Secretary for Justice for 2nd defendant