TO KAN CHI AND OTHERS v. PUI MAN YAU AND OTHERS

bjbjU HCMP 562/92 HCMP 2084/94 Contents Judgment Chapter 1 Prologue Chapter 2 History of the Legal Proceedings Chapter 3 Procedural and Evidential Considerations Witnesses Standard and burden of proof Ancient Documents Hearsay Expert Evidence Chapter 4 - The Law Chapter 5 The To Family and Tsing Wan Kun The Tos Settlement and Connection with Tuen Mun Establishment of Tsing Wan Kun The Ancestral Tablet or the Wooden Epitaph The Lantern Ligh Chapter 11 The 1st Defendant s Case The 1st Defendant s claim to Tsing Wan Kun The irregularity of Tat On s appointment The 1st Defendant s claim to Tsing Shan Monastery Chapter 12 The 2nd Defendant s Case Tsing Wan Kun The Chinese Temples Ordinance, Cap.153 The 2nd Defendant s case in respect of Tsing Shan Monastery The Chinese Temples Ordinance Chapter 13 Limitation and Laches Limitation The 2nd Defendant The 1st Defendant s limitation plea Laches Chapter 14 - Conclusion The Plaintiffs The 1st Defendant The 2nd Defendant Costs Directions Chapter 15 - Epilogue HCMP 562/92 HCMP 2084/94 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NOS.562 OF 1992 AND 2084 OF 1994 ------------- BETWEEN 9h`l) QVy) e g) v|v) e g) n Court Dates of 1st Trial : 3 7, 12, 13, 17 21 and 24 27 March 1997 Coram : The Hon Mr Justice Yam in Court Dates of 2nd Trial : 9 13, 16 20, 24 27 and 30 March 1998 14, 16, 17, 20, 22 24, 27, 28 and 30 April 1998 1, 4, 5, 11 13, 15, 18 21, 25 and 27 May 1998 1 4, 19, 23, 25, 29 and 30 June 1998 2, 3, 6 10 and 13 July 1998 25 28 and 31 August 1998 1 4 and 7 9 September 1998 Dates of Further Written Submissions : 26, 27 and 30 October 1998 Date of Judgment : 26 November 1998 --------------------------- J U D G M E N T --------------------------- This Judgment is delivered in three volumes : (1) the English Version of the Judgment, (2) the Chinese Version, and (3) the Appendixes which included selected photographs, plan and important documents for the better understanding of the Judgment by a general reader. Both the English and Chinese Versions are of the same legal effect and they should not be taken just as a translation of the other. Having said that, however, the rule of thumb is that reference should be made to the original language of a document in question be it cited authority, book or document. They are, for example, on the one hand the original English cases and authorities cited and on the other hand, the original Chinese documents like the Sung Tip , the Lantern Lighting Book or the Record/Account Book. For the benefit of bilingual readers, the original Chinese citation is included in the English Version with its English translation a and also known as Castle Peak Temple or Monastery, which is a well known temple to most people in Hong Kong in the Castle Peak district which is also known as Tuen Mun nowadays. 1.2 Tsing Wan Kun is a Taoist temple. The main idol being worshipped therein is Dou Lou [[O) temple. 1.3 The various buildings and components of the Tsing Shan Monastery complex is set out in Appendix 2. The area designated in blue which included Tsing Shan House Lots 1, 2 and 3 and Lot 416 of DD131 were registered in the name of Tsing Wan Kun. They are subject matter of Block Crown Leases in 1905. (This is the insignia of being recognized as indigenous occupiers of the land in 1898 when the British took over the New Territories under the Peking Convention the history of which will be considered later in Chapter 8 and set out in Appendix 4.) 1.4 Those lots of land in green, and in particular, Lots 417 and 418 are parts of the Tsing Shan Monastery. They are subject matter of various New Grants instead of Block Crown Lease. In other words, they were acquired from the Crown after the grant of Block Crown Lease in 1905. Those lots acquired earlier between 1910 and 1920, which included Lot 417 for the Grand Precious Hall ( %f 5_ } }v) N{^) l+^) og!n to him, that was only a life interest to him personally. Parties herein disputed as to the true intention and purport or meaning and interpretation of this document. The 1st and 2nd Defendants contended that that was an out out sale to Chan Chun Ting who had become an absolute owner thereof. 1.8 It is quite clear from the evidence before me that Tsing Wan Kun was built long before Tsing Shan Tsz. The stone lintel at the entrance of Tsing Wan Kun stated that it was dated in Kei Chow Year, i.e. the 9t Nt^sSS IQ]Nt^) WSwmZ Nt^) NAS Nt^]N an Kun and after his conversion to Buddhism, he built Tsing Shan Tsz on land acquired by him from time to time and registered either in his name or in the name of Tsing Shan Monastery. 1.10 The To s family of Tuen Mun was one of the first indigenous inhabitants of the New Territories. According to their genealogy record, the 3rd V V QVy) l WQg) x W) 0uP[ W) 0WQg) eQg) qgIf) Q4l) Q4l) \QW) , quite far away from Tsing Wan Kun and they are also registered under the name of Tsing Wan Kun by way of Block Crown Lease. 1.13 The To clan, in the name of To Ka Yi Tso, i.e. the Plaintiffs claimed that Tsing Wan Kun belonged to To Ka Yi Tso as it was established by it and they are still the owners thereof. 1.14 The 1st Defendant e g) N{^) appointed as the Abbot between 1949-1964, he was said to be the grand disciple of Chan Chun Ting. (iv) Mung Sang was appointed the Abbot of Tsing Shan Monastery according to Tat s will and also said to be an appointment by way of passing the bowl and gown to him. That was the year 1964. He died in 1989. (v) The 1st Defendant was the nephew of Mung Sang. Mung Sang had made a will appointing the 1st Defendant as his beneficiary, and also appointed him as the succeeding Abbot. There was no passing of bowl and gown to the 1st Defendant. 1.15 The 2nd Defendant, Secretary for Justice, appeared as the parens patriae for the charity. The 2nd Defendant s case is that Tsing Wan Kun and/or Tsing Shan Monastery was held on a charitable and/or religious trust and/or tong for the benefit of the public or a section of the public permanently. 1.16 Between the 1st Defendant and the 2nd Defendant there was also a counterclaim by the former against the latter in respect of the land registered in the name of Tsing Shan Monastery. Thus, between these two Defendants an issue also arises as to what is Tsing Shan Tsz or Tsing Shan Monastery now and who is the legal and beneficial owner of all its land holdings, including land purchased by Chan Chun Ting and registered in his own name, but occupied by the various buildings or parts of the Tsing Shan Monastery. 1.17 Before one can resolve all these factual and legal issues, I shall first of all consider in the next chapter the course of the two sets of proceedings which were later on consolidated into one case in the trial. This has some bearings on those issues and those various forms of relief claimed by the Parties herein. Chapter 2 History of the Legal Proceedings 2.1 HCMP No. 562 of 1992 ( MP562 ) was instituted by Originating Summons in the expedited form on 26 February 1992. The Plaintiff was the then Attorney General whereas the Defendant was the Secretary for Home Affairs Incorporated. The Plaintiff was represented by a Senior Crown Counsel of the then Attorney General s Chambers whereas the Defendant was represented by another Senior Crown Counsel of the same Chambers, presumably of another division or sub department . 2.2 MP562 was concerned with 16 lots of land, 15 of which was registered in the name of Tsing Kun whereas the other one was originally registered in the name of Ho Miu Ching as aforesaid in Chapter 1. The then Attorney General, i.e. the Plaintiff, was concerned that these aforesaid 16 lots of land having been reverted to the Crown pursuant to s.5 of the Crown Lands Resumption Ordinance, Cap.124. However, the resumption was yet to be compensated by way of money payment or land exchange through a lack of properly appointed and empowered trustees or managers. 2.3 It is quite apparent from the affidavit filed by Counsel for the Plaintiff in support of the application that he was not adequately instructed in respect of the factual background and basis of the application. The Applicant relied on a Declaration of Trust in the Block Crown Lease in 1905. The Block Crown Lease in fact did not contain any declaration of trust. What happened was in the Schedule to the Block Crown Lease, the registered owner was described as Tsing Wan Kun with Tang Yun (also sometimes spelt as or ) as the trustee. He was however not an ordinary trustee in the English legal sense of trust , but a manager or Sze Li under the New Territories Ordinance, Cap.97 ( the NTO ). That suggested that Tsing Wan Kun was registered as a family, clan or t more particularly provided in the NTO . In fact Tsing Wan Kun was described as a t ong under the NTO in the latter part of the affidavit in support. But there was no coverage as to what kind of t ong and who are the beneficiaries. 2.4 Further, which is more importantly, Counsel probably was not instructed that although Tang Yun had died long time ago, and on record one Tat On was registered as the succeeding manager, his registration was hotly disputed by the To family since 1963 and there were incessant applications from the To family to register their own managers to succeed Tat On or in lieu thereof. They claimed the Kun actually belonged to them, i.e. they are the beneficiaries thereof. 2.5 In respect of this Lot No.546, it was said that By a testamentary document said to be dated the 2nd of October 1936 and registered on that day, the testator Ho Ching devised all his [sic] interest in that said lot to .... Tsing Shan Monastery, Liu Wan, Tat On, Tat On [sic] trustees 2.6 In fact, there was no testamentary document produced and Ho Ching was not a testator under any testamentary document and thus there was no direct devolution of property from her to the three trustees described as trustees for Tsing Shan Monastery. What happened was this registration was made by Memorial No.96619 which was said to be registered according to the provisions of Ordinance No.1 of 1844 and Ordinance No.34 of 1910. It was by way of a Succession Application through Notice, i.e. an application from the three ge acters. 2.7 It is not quite clear why the District Office had accepted their application to succeed to Ho Ching s estate as being something held on trust for Tsing Shan Monastery. It has been said in the supporting affidavit that on 29 April 1963, Abbott Tat On was appointed the sole manager of the T ong, described as Tsing Wan Kun otherwise Tsing Shan Monastery and on that day, the Abbott was registered as representing the T ong pursuant to s.15 of the NTO. It is not quite clear why it was said Tsing Wan Kun otherwise the Tsing Shan Monastery ; if the contention was that the two had become one, then no adequate instructions were given to Counsel for the Plaintiff as will be apparent later on in this Judgment. 2.8 If the amalgamation of Tsing Wan Kun into Tsing Shan Monastery was contended by relying on the aforesaid Sung , it is quite apparent that the interpretation of the Sung was that it was an agreement dated 21 September 1914 by which in consideration of the payment of HK$360, To Tung, To Ting, To Kwan and To Tong Hing and others as owners purported to assign the Kun and all its attachments to Chan Chun Ting. Whether by the wordings of the Sung , it was intended to be an out and out assignment of the Kun and all its attachments to Chan Chun Ting is a subject matter of hot dispute between the Parties before me. It is the claim of the To family that To Tong Hing was one of the two registered managers of Tsing Wan Kun whereas three of the four Tos are representatives ibit produced to the Court was in the name of Tang Yun. 2.9 However, the Plaintiff in MP562 was only desirous of appointing the Defendant as trustee for these 16 lots of property which have been resumed by the Crown so that the proceeds or profits thereof shall be vested in it and be held by it as trustee. No harm could be done to anyone, as submitted to the Court, should there be any beneficiaries under this trust . 2.10 The Order was made by Godfrey J (as he then was) by consent. However, apparently it was not made without much difficulty and many queries from the Bench according to the Notes of Proceedings of Counsel for the two parties after an 1 hour hearing even though both parties consented to the making of the Order. All three parties appearing before me agreed that this Order could be set aside by me as not all parties affected were before the Court. 2.11 HCMP No.2084 of 1994 ( MP2084 ) was instituted on 4 August 1994 and amended on 26 February 1995. The Plaintiffs were Chan v|v) e g) q\og!n N_r)R gP by the Secretary for Home Affairs Incorporated (i.e. the Defendant in MP562) as trustee in the name of Tsing Shan Monastery and Tsing Wan Kun. 2.12 Thereafter on 9 and 10 October 1995, To Yi Tso and the five village elders of the five To villages representing the To Clan applied to be joined as a party in MP2084 and MP562 respectively. The matter was promptly heard by the late J. Chan J on 12 and 13 October 1995. On 12 October 1995, To Yi Tso and the To Clan as represented by the five named gentlemen of the To family were joined as the 3rd and 4th Defendants under MP2084. By his Order on 13 October 1995, the Secretary for Home Affairs Incorporated (as trustee) were given more power under the Trustee Ordinance and the net proceeds of sale or other disposal of Letter B Land Exchange Entitlements, after deduction of all costs, charges and expenses thereof, were ordered to be paid into Court until further order. This Order was made without prejudice to the claims of the parties as to their entitlement thereunder. 2.13 By another Order of J. Chan J on 26 January 1996, MP562 and MP2084 were consolidated as one action under a new title. In this consolidated action, To Tso and the To Clan became the 1st and 2nd Plaintiffs in respect of their claim for an interest in the asset and property of Tsing Wan Kun. Pui Yau alias Sik Kwok Wah became the 1st Defendant whereas the Attorney General became the 2nd Defendant. Direction for service of pleadings between the two Plaintiffs and the two Defendants were given, together with inspection and discovery of documents. 2.14 The original Plaintiffs in MP2084, Chan San, Lau Wong Fat and Ho Wing became the 3rd Defendant whereas the Secretary for Home Affairs Incorporated became the 4th Defendant. However, their application for scheme of trust in relation to Tsing Shan Monastery (as opposed to Tsing Wan Kun) to be approved and for consequential and incidental directions to be given by the Court was adjourned to a date to be fixed before the same judge trying the consolidated action. The new 3rd and 4th Defendants were excused from taking part in the consolidated action until further order. 2.15 In addition to the aforesaid directions, Rev. Sik Kwok Wah, the Abbott of Tsing Shan Monastery, was required to file an affidavit setting out the basis of his claim whereby all other parties should file further affidavit in reply thereto. 2.16 From the aforesaid directions, it may be apparent that the trial of the consolidated action is only concerned with Tsing Wan Kun for the time being. This is not so. It is because when pleadings were served and filed, the 1st Defendant, the Rev. Sik Kwok Wah, counterclaimed against, inter alios, the Attorney General in respect of the Tsing Shan Monastery as well and the 2nd Defendant, the Attorney General, counterclaimed in respect of Tsing Wan Kun. The former counterclaimed for a declaration that the properties registered in the name of Tsing Shan Monastery were beneficially owned by Chan Chun Ting and/or Tat On and/or Mung Sang and/or the 1st Defendant himself and that he himself is entitled to be registered as its manager. The latter however counterclaimed against the Plaintiffs for a declaration that Tsing Wan Kun was and still is a religious/charitable t ong/trust. It may be convenient to summarize the course of the pleadings and the contents thereof apart from the aforesaid three basic claims of each of the three parties in Chapter 1. 2.17 The Statement of Claim was amended a number of times and the final version is the Amended further amended Statement of Claim in yellow, and they were respectively dated as follows : i) 3 April 1996 ii) 2 September 1996 iii) 6 March 1997 iv) 10 March 1998 20 April 1998 2.18 The 5th Defendant has been added as the estate of Tat On, deceased. It is the 1st Defendant acting as the personal representative of Tat On, deceased. There is a further claim against the 5th Defendant that the sale of certain properties set out in Schedule 2 thereof was wrongful on the ground that Tat On should not be registered as the manager of Tsing Wan Kun in 1963. There is a further claim for an account of profits from the sale of certain properties of Tsing Wan Kun in Schedule 2 thereof by Tat On. Part of the proceeds was used for the acquisition of two flats in Tuen Mun. This will be more apparent later on when the evidence is considered in detail. 2.19 The 1st Defendant is appearing in person now. This has been the case since 4 February 1997. When he was in the past represented by lawyers, he served a Defence drafted by his Counsel dated 24 June 1996 and it was amended by his Counsel on 1 November 1996 as an amended Defence and counterclaim. He counterclaimed against To Tso and the To Clan for a declaration that he is (together with his predecessors) beneficially entitled to the properties registered in the name of Tsing Kun and is entitled to be registered as manager thereof. Further as previously stated, he is also seeking the aforesaid declaration against the Attorney General in respect of Tsing Wan Kun and Tsing Shan Monastery. 2.20 The 2nd Defendant, the Attorney General, in his Defence to the Counterclaim of the 1st Defendant the Rev. Sik, set out the history, as he contended, in respect of the respective properties of Tsing Wan Kun, Chan Chun Ting and Tsing Shan Monastery. In particular they pleaded that i) After the death of Chan Chun Ting in 1932, three persons, namely Liu Wan, Tat Ngon and Tat On were registered as managers of the Tsing Shan Monastery and its properties on 2 October 1936. ii) On 8 February 1949, Liu Wan and Tat Ngon were removed from the managership leaving Tat On as the sole manager of the Tsing Shan Monastery and its properties. iii) Tat On was appointed as manager of Tsing Wan Kun and its properties on 29 April 1963. iv) The 1st Defendant Rev. Sik has never applied to have himself appointed as the manager of either the Tsing Shan Monastery or Tsing Wan Kun or their properties. 2.21 The Attorney General further contended that i) For those properties originally purchased by Chan Chun Ting and registered in his name, they had been registered in the name of Tsing Shan Monastery since October 1936. (It should be noted here that the evidence suggested that they were never registered in the name of Tsing Shan Monastery except that in the Rent Roll, it was stated that they were in the name of Tsing Shan Monastery after Chan Chun Ting. There was no Memorial produced whereby those aforesaid personal properties of Chan Chun Ting devolved onto Tsing Shan Monastery or the aforesaid three persons. This will be discussed later in the evidence.) ii) For those properties registered in the name of Tsing Shan Monastery with Chan Chun Ting as a trustee, they were registered in the names of Liu Wan, Tat On and Tat Ngon in October 1936 as aforesaid. Apart from the main claim of the Attorney General that Tsing Shan Monastery and Tsing Wan Kun have always been a religious t ong and/or held on trust or in the nature of a charitable/religious trust/t ong for the benefit of the public, especially Buddhist worshippers, the Attorney General also pleaded that the passing of bowl and gown by an Abbott to his disciple does not constitute succession to Abbottship and the properties of a monastery. iii) The will of Tat On did not change or pass the ownership of properties under the names of Tsing Shan Monastery and Tsing Wan Kun to Mung Sang. iv) Similarly the will of Mung Sang did not change or pass the ownership of the properties under the names of Tsing Shan Monastery and Tsing Wan Kun to the 1st Defendant. 2.22 In other words, there was a joinder of issues, inter alia, as to whether Tsing Shan Monastery is a religious/charitable trust/t ong or whether the 1st Defendant, the Rev. Sik, was the duly appointed Abbott thereof with entitlement to control and manage the properties of Tsing Shan Monastery and/or Tsing Wan Kun. 2.23 The Defence and Counterclaim of the then Attorney General 2nd Defendant was amended three times and these pleadings were dated as follows i) 1 July 1996 ii) 30 October 1996 iii) 12 March 1997 iv) 1 May 1998 However the counterclaim of the 2nd Defendant against the Plaintiffs concerned with Tsing Wan Kun only. The main contention of the 2nd Defendant has been set out hereinbefore and they will not be repeated here. 2.24 In respect of discovery and inspection of documents, on 5 February 1997, J. Chan J made the following Order, inter alia, which is relevant to the consideration of the evidence before the Court, namely i) All documents disclosed by the parties are deemed to be served with a hearsay notice and to be admissible as such unless a formal counter notice is properly issued and served within 14 days. The above Order also applies to document disclosed after 5 February 1997, the time for service of a formal counter notice in respect thereof be abridged to three days before trial. 2.25 The course of discovery is quite lengthy. On the part of the Plaintiffs, the following lists of documents were filed by them, namely i) 27 December 1996 ii) 4 May 1998 7 March 1998 25 May 1998 25 May 1998 vi) 1 June 1998 vii) 25 June 1998 viii) 29 June 1998 2.26 The lists of documents of the 1st Defendant was dated 14 January 1997. Thereafter by a notice of intention to act in person dated 4 February 1997, the 1st Defendant appeared in person ever since then. No further discovery was made by him. 2.27 The 2nd Defendant also made a number of discovery of documents from time to time and sometimes in response to an order or application for specific discovery. Their lists of documents were filed as follows i) 23 December 1996 ii) 19 February 1997 iii) 5 May 1998 iv) 25 May 1998 v) 25 May 1998 vi) 1 June 1998 vii) 15 June 1998 29 June 1998 2.28 It can be seen from the aforesaid accounts that parties were making discoveries as time goes by. They were made before and after J. Chan J s trial and also in the midst of the second trial before me. Eventually, they were contained in seven box files together with seven box files of expert reports and three box files of exhibits produced to affidavits. There are also 40 exhibits produced by the Plaintiffs and 28 produced by the Defence. There are also a number of books cited by the parties in respect of the history of the Kun or the Monastery, Buddhism or Taoism, and Chinese customary law or Tsing Law. 2.29 The first Trial was conducted by J. Chan J between 3 March 1997 for 16 hearing days. It was adjourned part heard to 8 September 1997. However sadly enough, J. Chan, J passed away on 25 July 1997. 2.30 The second Trial de novo before me commenced on 9 March 1998. The hearing ended on 9 September 1998 for 67 hearing days with a number of adjournments in between. The first question to decide in the 2nd Trial is of course how we should deal with those evidence adduced already before the late J. Chan J. I shall deal with this question in the next chapter when other evidential issues are considered. Chapter 3 Procedural and Evidential Considerations Witnesses 3.1 A total of 21 witnesses gave evidence in the firs WePYe from Beijing. His written expert opinion was admitted on Hearsay Notice. It has been agreed among the parties and submitted to the Court that evidence of those witnesses should become the evidence given in the second trial subject to the accuracy of the transcription and the translation. The first trial was recorded in the Digital Audio Recording System of the Court . A check can easily be done if the accuracy thereof is in doubt . 3.2 This agreement and submission of admitting the evidence in the first trial in the second trial was accepted by the Court. Parties agreed that the case would turn on what a witness said rather than how he said it, i.e. it does not depend on the demeanour of the witness when he was giving evidence. This is a very sensible approach to the problem and expeditious way of disposing the matter in the second trial. In the end, no one submitted in the final submissions that a witness lacked credibility because of his demeanour. As far as factual consideration is concerned, submissions have been based on the contents of the evidence given in urging me to either accept or reject the same. Standard and burden of proof 3.3 The standard of proof is of course the usual civil standard of proof on the balance of probabilities. 3.4 In this case there were three main contentions as aforesaid, each of which was put forward by each of the three parties. Each party will have the burden of proof of his contention. No party, including the 2nd Defendant, is entitled to succeed solely on the account of default or deficiency of proof by another party. For example, if the Plaintiffs failed to prove that Tsing Kun was and still is, or has always been beneficially owned by them, it does not mean that the 1st Defendant s case or the 2nd Defendant s case has been proved or has to be accepted. Similarly, the 1st Defendant must prove his beneficial ownership to Tsing Kun and Tsing Shan Monastery. The 2nd Defendant will have the burden of proving that the land registered in the name of Tsing Kun and/or Tsing Shan Monastery has been held on a charitable and/or religious trusts and/or t ong for the benefits of the public or a section of the public permanently. 3.5 Of course, if the Court finds at the end of the day in favour of the Plaintiffs or the 1st Defendant, the 2nd Defendant s case failed subject to the consideration of the effect of the Chinese Temple Ordinance, Cap.153. 3.6 However, in the case of a claim for charity, the law does have very strict requirements failing which the property will not be regarded as being held for charity. Hence, if the 2nd Defendant fail to discharge the burden of proof, then it will still go a long way to assist the Court to find that the property of Tsing Wan Kun is owned by the Plaintiffs or the 1st Defendant being the two claimants to the beneficial ownership of the property. The position is the same in respect of the 1st Defendant s claim for the property of Tsing Shan Monastery. Accordingly, I do not accept the 2nd Defendant s submission that the 2nd Defendant does not have to plead or prove a positive case so far as ownership of Tsing Wan Kun and Tsing Shan Monastery are concerned. In this regard, I also consider that it does not matter which party should be the Plaintiff and which party should be the Defendant, although I entirely agree with J. Chan, s direction that the To Tso and the To Clan should be the Plaintiffs whereas Rev. Sik and the Secretary for Justice as parens patriae should be the Defendants. It is just a matter of convenience and good case management. 3.7 In respect of these rivalry claims to the beneficial ownership of the property, I also borne in mind the submissions of the Plaintiffs that in the absence of anyone showing a better claim to the Property, the person having shown the best claim would be the owner , i.e. ownership in some cases is a relative concept. (See Megarry & Wade : The Law of Real Property 5th Edn., pp.106 109.) However, it will be apparent later on in this case that the relative concept of ownership is not significant at all as it will be my decision that there is sufficient proof of ownership to the property by one party. 3.8 No doubt in approaching the question of the discharge of the burden, the Court, as submitted by Mr Edward Chan, SC, who appeared for the Plaintiffs together with Mr Thomson Mo, is bound to take into account of all relevant factors and circumstances including :- i) the things to be proved; ii) the inherent probabilities of the matter; iii) the timing of the relevant events; iv) the normal expectation on the availability of evidence; and v) the presence or absence of any contrary evidence. Ancient Documents 3.9 One of the main features of the case of the Plaintiffs and the 1st Defendant is that many events took place long time ago and one cannot expect direct oral evidence from witnesses on those events. The most important period was at the turn of this century. All witnesses who can give direct oral evidence had died . However, some of the documents are qualified as ancient documents : see Phipson on Evidence 14th Edn., paras.35 20 and 35 Ancient documents Private documents 20 years old, produced from proper custody, and otherwise free from suspicion, prove themselves, and no evidence of the handwriting, signature, sealing or delivery need, in general, be given. The 20 years date from the execution of the document, and, even in the case of wills, not from the death of the testator. In the case of documents of title, however, acts of possession thereunder should be shown, though the absence of such evidence goes merely to weight, and not to admissibility. Principle. The rule, established for the sake of general convenience, is founded on the great difficulty and often impossibility of proving handwriting after a long lapse of time; and on the presumption that the attesting witnesses, if any, are dead a presumption which is not allowed to be rebutted by proof that such witnesses are alive and actually in court. Scope of Rule. The rule applies not only to wills and deeds requiring attestation, but to accounts, letters, entries, receipts and settlement certificates, as well as, it has been though, to all other documents, public or private. 3.10 Also ancient documents can be tendered as evidence of ancient possession : see Phipson paras.31-62 and 31-63 Ancient documents (i.e. over 20 years old : see post, 20) produced from proper custody and by which any right of property purports to have been exercised are admissible, even in favour of the grantor or his successors, in proof of ancient possession. Principle Such documents are sometimes thought to be admissible by exception to the hearsay rule; but this is incorrect. They are received not as proving the truth of the facts stated, but merely as presumptive evidence of possession. Thus, a demise by copy of ancient Court Roll is an assertion of a right of ownership, and enjoyment under it is evidence of ownership. The grounds of admission for this purpose are twofold(necessity, ancient possession being incapable of direct proof by witnesses; and the fact that such documents are themselves acts of ownership, real transactions between man and man, only intelligible upon the footing of title, or at least of a bona fide belief in title, since in the ordinary course of things men do not execute such documents without acting upon them. Qualifications (1) The documents should purport to constitute the transactions which they effect, mere prior directions to do the acts, or subsequent narratives of them, being inadmissible. Thus, though expired leases, licences and grants may be tendered, even against strangers, to show ancient possession of the property demised, or reserved from the demise, recitals therein of other documents or facts will be rejected, except as admission. 3.11 The following cases are supportive of production of ancient documents. In William Malcomson v. John O Dea & Others (1893) 10 HL Cas 593, the limits of the several fisheries where rent has been received by the Crown in respect thereof for a long period of time, the earliest grant describing it as an ancient inheritance of the Crown . The following ancient documents were decided as admissible in evidence by the House of Lords, namely :- 1. The Bill and Answer in Chancery in a suit instituted a great many years before by another grantee of the Crown against the corporation and in which the limits of the alleged history were described. It was admissible as part of the history of the fishery and of the claims made to it. (The right to exclude the public therefrom and to create a several fishery, existed in the Crown, and might, lawfully, have been exercised by the Crown before the Magna Charta i.e. 1215.) 2. An Assembly Book belonging to the corporation dated in 1676, and containing entries of the rents due to the Corporation from its various tenants, among which were entries of rents paid in respect of this fishery. This book was admissible as an ancient document showing the exercise of acts of ownership. 3. The Letter of Licence from the Crown, also in 1676, to one of the Grantees, to aliene this subject matter of the Grant. This Licence was admissible for the purpose of showing the meaning of a particular phrase in the Grant. In the speech of Mr Justice Willes in the House of Lords at pp.614 615 he said As to the first entry, relating to the letting of the net fishing and Fisher s Stent to Carroll, we are dealing with something done nearly two centuries ago, and the great stress of the case bore upon the proof of possession. The proof of ancient possession is always attended with difficulty. Time has removed the witnesses who could prove acts of ownership of their personal knowledge, and resort must necessarily be had to written evidence. In some cases written statements of title are admitted even when they amount to mere assertion, as in the case of a right affecting the public generally; but the entry now under consideration is admissible according to a rule equally applicable to a fishery in a private pond as to one in a public navigable river. That rule is, that ancient documents coming out of proper custody, and purporting upon the face of them to show exercise of ownership, such as a lease or a license, may be given in evidence without proof of possession or payment of rent under them, as being in themselves acts of ownership and proof of possession. This rule is sometimes stated with the qualification, provided that possession is proved to have followed similar documents, or that there is some proof of actual enjoyment in accordance with the title to which the documents relate. And certainly, in the case of property allowing of continuous enjoyment, without proof of actual exercise of the right, any number of mere pieces of paper or parchment purporting to be leases or licences ought to be of no avail. It may be a question, whether the absence of proof of enjoyment consistent with such documents goes to the admissibility or only to the weight of the evidence; probably the latter. This, however, is not material in the present case, where repeated payments and receipts of rent under leases were proved. 3.12 In Bullen v. Michel (1816) 2 Price 399 it was decided that Ancient entries made by the monks of an abbey, relating to an endowment by them of a vicarage, (whether perfect or not) are good evidence (quantum valeant) of their subject matter although such entries be mixed with extraneous memoranda, and the book be not confined or appropriated to subjects ejusdem generis. This case also decided that the doctrine of res inter alios acta (no one, i.e. a third person, should be harmed by things done between strangers), has no application here, although it go to affect third persons who were not privy to it, and could have had no cognizance of the matters to which it relates in the circumstances of the case. Hearsay 3.13 It must also be borne in mind that J. Chan, J. had directed that when documents discovered on a List of Document, it would be presumed to be served at the same time on the other party with a Hearsay Notice. If no counter notice was served within time, then they would be admitted as evidence before the Court subject to the question of weight to be attached thereto. In the end, most documentary evidence were admitted. It was only challenged by the Plaintiffs that the so called Ross Ruling which was inscribed on a piece of stone stored in the Tsing Shan Monastery and produced by the 1st Defendant (and also relied on by the 2nd Defendant), was not authentic or genuine, i.e. the Plaintiffs disputed that it was a ruling with legal effect by a Mr Stewart Ross, the then District Officer of Tuen Mun or Castle Peak in the 1910s. 3.14 Some of the evidence given by witnesses constituted multiple hearsay and they cannot be considered as admissible evidence for the purpose of proving anything; they were just admitted on de bene esse basis. For example, some of the Tos said that they have a family oral tradition passed from generation to generation that Tsing Wan Kun belongs to the To family. This cannot be accepted as evidence of proof of ownership at all. Apart from noting that there was such an oral tradition, the content thereof cannot be taken as having any evidential value. Expert Evidence 3.15 This case involves also many issues of Chinese Customary laws, Buddhism and Taoism. Experts were called to support the contention of each party. References were made to authoritative books. Efforts were also made to reconcile differences in the opinion of authors or experts. The content of their evidence will be considered in detail at the appropriate places. The attitude of receiving experts evidence in this case will be considered in the next chapter when the applicable law in this case is considered. This will set up the legal framework first before the evidence of the case is considered in detail. Chapter 4 The Law 4.1 It is important to lay down certain ground work before we proceed to the consideration of evidence. It will remind ourselves towards which direction we are heading. Further, we should be aware of the legal framework within which this case is decided. I shall start with s.13 of the New Territories Ordinance, Cap.97 ( ). 4.2 Section 13 thereof provided that 13. High Court or the District Court may enforce Chinese customs (1) Subject to subsection (2), in any proceedings in the High Court or the District Court in relation to land in the New Territories, the court shall have power to recognize and enforce any Chinese custom or customary right affecting such land. (2) In subsection Section 13 was considered and construed in the landmark decision of Mills Owens J. in Tang Chung & Anr. v. Tang Chik Sang & Ors. [1970] HKLR 276. The action was brought by two t ongs against four t ongs, all of which belonged to the same tso for partition of the tso s properties. It was decided that the provisions of the aforesaid s.13 relating to Chinese law and custom is mandatory. Partition of the properties would be disruptive of the social structure of the clan. Accordingly, the previous English Partition Acts 1539 and 1540 which applied in Hong Kong by virtue of the Application of English Law Ordinance, Cap.88 are inapplicable. In effect, the present Partition Ordinance, Cap.352 is not applicable to landed property in the New Territories if it is against Chinese law and custom to do so, i.e. s.13 of the NTO would prevail over the Partition Ordinance. 4.3 The aforesaid decision of Mills Owens J. is also relevant to the following propositions of law submitted by Counsel for the Plaintiffs which I accept as follows :- (1) From the legislative history of s.13(1) of the current NTO, the Court must recognize and enforce Chinese custom or Chinese customary right affecting land in the New Territories in the case of land held under lease or other grant in the name of a clan, family or t ong, which form of land holding was recognized under this section . (2) Corollarily, one must disregard any aspect of English law which might affect the customs or trusts of land so held in the New Territories (see p.295) where Mills Owens J. said ... In a situation such as Cap.97 envisages, authorities, I think, are of limited assistance; one must give priority to the language of the enactment itself and the circumstances in which it was enacted. When one comes to consider the circumstances in which the N.T. Ordinance came to be enacted, including the history of the N.T., in my view all doubts disappear. The establishment of the Land Court to ascertain and determine claims to land, with the provision for titles to issue in respect of claims duly established, the form of the block Crown leases expressly recognising the various forms of clan holding, including that of a Tso, and the provisions of (the present) section expressly recognising such holdings taken in combination lead, I think, irresistibly to the conclusion that the Court must recognise and enforce Chinese custom and customary right in the case of a Tso in the N.T. It is then a necessary corollary that one must disregard any aspect of English law, including the rule against perpetuities or any rule regarding unusual modes of devolution, which might affect the customs or trusts of the Tso; and I would so hold. The aforesaid corollary would also extend to provisions in legislation of general applications such as the Partition Ordinance which, but for s.13 of NTO would have been applicable to the tso or t ong land in question (see pp.321 322). (3) Whilst landed property of a tso or t ong (particularly for the property which was specifically dedicated for ancestral worshipping) is by custom meant to be kept intact and not to be disposed of, the members of the tso may, by agreement, adopt a new custom of management and may even dispose of the land (see pp.305 311 and 319 320). If there is such an agreement, it would be against Chinese custom for the Land Officer (Secretary for Home Affairs) to prevent the disposal of the property (see p.309). (4) Land granted to clan, family or t ong by Block Crown lease is held by the registered managers as trustee for the clan, family or t ong concerned. The terms of the trust are the customs of the clan, family or t ong concerned as to how the assets of this clan, family or t ong should be administered (see pp. 304-305). (5) Further, the question of whether the consent of the Land Officer should be obtained first should the Court be minded to grant the partition order was left open in the judgment (see p.299). 4.4 In Tang Kai Chung, the Court was concerned with jurisdiction of granting a partition decree and if there is such jurisdiction, whether there were compelling reasons to grant the same in the exercise of its discretion. In my view, the case before me is first of all concerned with the ownership of the property (of Tsing Wan Kun and Tsing Shan Monastery). The consent of the Land Officer is only a matter of administrative measure to ensure a fit and proper person has been duly appointed to succeed the managership after the issue of ownership has been decided by the Court. 4.5 In the case of Tsang Wing Lung v. Tsang Lun [1993] HKLR 23 Deputy Judge Sharwood applied the aforesaid decision in Tang Chung to cases involving the Limitation Ordinance. In effect, it was decided in that case that limitation does not apply whenever it is contrary to the Chinese custom in land holding in the New Territories, i.e. para.(2) in the aforesaid proposition of Tang Kai Chung. 4.6 The proposition as set out in the aforesaid para.(3) of Tang Kai Chung was reaffirmed by Deputy Judge Robert Tang, Q.C., in Kan Fat Tat v. Kan Tat [1987] HKLR 516. This case is concerned with whether tso property should be divided on per stirpes basis as contended by the plaintiff who has only two sons, or on per capita basis as contended by the defendant who has seven sons and eight grandsons. The Court however decided that tso property could not be divided unless there was an agreement among all members of the tso although the Court stated clearly it would prefer the view that tso property should be divided on per stirpes basis. This case has not however resolved the situation as to how every male member would agree to divide the property if the majority for self interest reason (as the majority Kans in the case) favoured the per capita basis and would not have agreed to the division unless the minority also agreed to such a basis. 4.7 Chinese custom or customary right applicable to the New Territories are in fact an aspect of the local law and as such, it would be open to a judge to take judicial notice of such customary law. It is certainly also open to him to take the law from decided cases, and also to consider such textbooks and other sources as may appear to be helpful, see the cases of : Wong Yu Shi v. Wong Ying Kuen [1957] HKLR 420 at pp.438 440 (per Hogan C.J. and Gould J. (Full Court)), and Yeung Chi Ding and Others v. Yeung Tse Chun [1986] HKLR 131 at 137G 138B (per Liu J. (as he then was)). Liu J. said at p.138 that Expert evidence remains, however, an almost indispensable source of guidance in the ever changing Tsing customs in most of our New Territories villages. ...The facts for such judicial determinations are, contrary to views and sentiments of some, of importance. 4.8 There is a long established practice in the Court for expert evidence on Chinese customary law to be given. However, Macfee J. in Lui Yuk Ping v. Chow To [1962] HKLR 515 at p.530 said If Chinese law and custom is to be so accepted then surely its existence is a matter of which judicial notice is to be taken, and if the court should require any assistance on points of this, or any other law of this Colony, then surely the proper procedure is to consult written authorities on the subject, if necessary with the assistance of learned counsel and translators? Yet the procedure which seems to be firmly established in the courts of this Colony is to hear oral evidence on matters of Chinese law, given by a witness on oath and subject to cross examination and re examination in the usual manner. This seems to me to be tantamount to treating Chinese law not as a part of the law of Hong Kong but as foreign law, i.e. as fact, of which the courts may not take judicial notice. And at 532 For my part I have doubt as to the propriety in any witness coming forward and, in effect, saying to a court, I have studied such and such a branch of the law of this Colony and I now tell you on oath that the answer to the legal problem now propounded is so and so. This whole procedure seems to me to be tantamount to, say, the learned editor of Pollock on Torts going into the witness box in an English court and stating, on oath, the answer to some question of tortious liability. Law is a matter for counsel, who will state their authorities, it is not a matter for witnesses, unless it be foreign law. In the end, he, however, accepted the evidence of the particular expert witness. With respect, I cannot agree with the observation and doubt of Macfee J. His view was presumptive on the premises that all Chinese customs could be found in textbooks and Tsing law. This is not so. 4.9 In my short experience in the legal profession for 20 odd years, nearly in every case of litigation involving Chinese customs, there are conflicting expert opinion as to what was the Chinese custom and what was the custom practised in the New Territories. I would prefer the view expressed by Liu J. in the case of Yeung Chi Ding instead. Further, lawyers in Hong Kong are not trained in respect of Chinese customary laws. It is not a pre requisite for qualification either at the Bar or required by the Law Society. Requiring lawyers to submit to the Court what was the Chinese customary law practised in the New Territories is virtually impossible for most lawyers who were not trained in that respect. 4.10 For those limited number of lawyers who were so trained like Professor Dicks appearing before me as an expert (as he appeared in a number of cases cited to me), he was speaking from his expert learning. It will be unfair to the party on the other side should he be allowed to make submissions from the Bar as to what the Chinese customary law was and should be accepted by the Court without cross examination on the other side. This, as far as I understand, has never been done. 4.11 In the case of Wu Koon Tai v. Wu Yau Loi [1996] 3 559, the Privy Council decided that notwithstanding s.13 of the NTO and the general applicability of Chinese customary law to land in the New Territories, the question of devolution of title to land in the New Territories whether by inter vivos transaction or on death, is regulated by the registration system and the general law of Hong Kong. The whole system of land tenure in the New Territories was fundamentally altered following the Peking Convention 1898. Leases from the Crown were substituted for old titles under the pre existing law. A system for deducing titles to such leases was imposed, dependant upon the registration of deeds. The whole purpose of the new system would be defeated if old customary land law was allowed to cut across and trump the new system. 4.12 In this case there were two competing equities : A. The Appellant was the successor to the purchaser who purchased from the son in 1934 the land through a document signed only by a middleman. Expert evidence suggested that this document operated as a transfer of the land to the purchaser. The land originally belonged to the father under a Block Crown Lease in 1905. The father died in 1921 and under Chinese customary law of succession, his son succeeded to the whole estate of the father including the land. However, the son was never registered as successor to the father under the then s.17 of the NTO. B. After the son s death in the 1940s, the grandson succeeded to the estate of the son and through the son to the estate of the father. In 1951, the grandson registered as successor to the father (not to the son) of the land. The grandson died in 1962 and the respondent succeeded to the grandson s estate and was duly registered under s.17 as such successor to the land. 4.13 It was the decision of the Privy Council that :- i) There was a clear case of part performance. The contract of sale was therefore enforceable against the respondent as owner of the title to the land under the registration. Here the Privy Council did not rely on the 1934 document as an enforceable written contract as the plaintiffs do not contend that the only signatory of the 1934 document, the middleman, was a duly authorized agent of the son for that purpose. Their Lordships instead relied on part performance under s.3(2) of the Conveyancing and Property Ordinance. ii) Since the son sold the land after 13 years of the death of the father, this would give rise to a factual inference that after the lapse of time the estate of the father had been fully administered and the son was entitled to the land in specie by implied assent. There was no reason why a devisee of land comprised in an unadministered estate could not enter into a binding contract to sell the land at the time when his interest is a mere chose in action or expectancy. As and from the date when the chose in action comes into existence, the contract becomes specifically enforceable. Their Lordships considered that there are the clearest possible acts of part performance by the son in this case. iii) Where there was an unregistered successor (the son), s.17 operated in a way so as to make the ultimate registered successor (the grandson) liable only for the obligations of the deceased (the father), and vested in the ultimate registered successor the estate owned by the deceased, all transactions entered into in the meantime by the unregistered intermediate successor (the son) being overridden. iv) However, there was no provision under s.17 that the father s estate was to be taken free of all rights which were specifically enforceable in equity against that land. The right of the purchaser and his successor (the appellants) to enforce their equitable interest in the land depended upon the right to specific performance against the son being enforceable against any subsequent holder of the land other than a bona fide purchaser for value. Since the land had not been sold to a third party by the registered successor but was held by someone taking as a volunteer through the son, the purchaser s equitable right in the land was enforceable against the present owner of the title, i.e. the respondent. v) The respondent therefore should vest the title to the land in the appellants. 4.14 In this decision, it should be noted that :- 1) The Chinese customary law of succession could not override the provisions of s.17 which was directed specifically at dealing with the problem of succession on death. It is the case notwithstanding that under Chinese customary law the son is entitled to succession to the father s estate without registration. 2) The English law of competing equities was followed in that a bona fide purchaser for value with an enforceable right in equity against that land who was also first in time in priority, would have an overriding right over a volunteer, albeit the volunteer s interests was registered according to s.17. Hong Kong is, of course, not adopting registration of title as proof of ownership. 4.15 Thus, Counsel for the Plaintiffs submitted that there should be a distinction between : 1) the law on substantive rights and interest in land, and 2) the law on the machinery for acquiring or transfer of interest of land. In the latter which is a matter of procedure, the general law must be complied with. Here, when the machinery for acquiring or transferring of interest in land was specifically provided otherwise for NT land, Chinese customary law could not have any application as s.13 of NTO was intended to be the case. 4.16 This submission is very inviting. However, I would prefer the apparent method adopted by the Privy Council. They construed s.13 side by side with s.17. The latter would be rendered nugatory if the registration of the successor to the land and the vesting of land in the registered successor could be by passed if one construed s.13 as empowering the Court to apply Chinese customary law and ignore the glaring provisions of s.17. Hence the Privy Council decided that s.17 provided for the registration of the successor to the land and the vesting of the land in the registered successor, the land was never vested in the son for want of registration since the son was never in fact so registered, although he was entitled to be so registered. 4.17 It is common ground between the experts, Professor Dicks called by the Plaintiffs and Professor Baker called by the 2nd Defendant, (both of whom are in the School of Oriental and African Studies in the University of London) that 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 was registered in the name of the monastery or temple and not the name of the Tso or Lineage. (see Transcript 8 July 1998 at 45A I, 57P 58M and 59P 61H). 4.18 Further, Professor Baker said (which is not disputed by Professor Dicks) that the interest of a tso or lineage in a temple may be disposed of as in the case of an individual owner (see Transcript 8 July 40D 41G; and also his work : A Chinese Lineage Village : pp.88 89, 93 and 103 104; and Dr David Faure (another expert called by the 2nd Defendant) : The Po Tak Temple in Sheung Shui Market Journal of the Hong Kong Branch of the Royal Asiatic Society, Vol.22, 1982 pp.271, 272 and 277 278.) 4.19 The aforesaid proposition and contention is relevant in particular to those land purchased by Chan Chun Ting and registered in his name but thereafter used for Tsing Shan Monastery. 4.20 In the case of Chu Tak Hing v. Chu Chan Cheung kiu [1968] HKLR 542, Scholes, J. s decision can support the following propositions of law, namely :- 1) By Chinese customary law, a person may give his own property to a t ong and thereafter the property would cease to be his own and would become the common property of the t ong and could only be sold or transferred in accordance with the custom of that t ong or with the agreement of all members of the t ong (see p.543). 2) A t ong set up for the benefit of settlers and his descendants may have managers not with the same surname as the settlers and his descendants and in this case the t ong was in the surname of whereas the manager was called Yung (see p.545). There is nothing to suggest here that such a practice is against any customary law. 3) When land was registered in the name of a t ong with managers appointed, the better view is that the legal title is vested in the managers on trust for the t ong (see p.546). 4.21 In another case of Tang Yau Yi Tong v. Tang Mou Shau Tso [1996] 2 HKC 471, the Court of Appeal (per Bokhary J.A. (as he then was), Godfrey and Liu JJ.A.), laid down the following propositions (in so far as they are relevant to the case before me), namely 477C D and 479D). In other words, two institutions of land holding in Chinese customary law may have the same membership and yet may be under different names and management without losing their separate entities. 2) An institution of land holding (whether it is a tso or a t ong) could buy into another institute of land holding provided that the incoming institute may legitimately participate in its trust (see 472F and 478B D). 3) An ancestral t ong or tso may be formed by persons of the junior generation acquiring property and dedicating the property for the ancestral t ong or tso (see p.479C). This is relevant to the suggestion that a To member of the To Ka Yi Tso of 18th or 19th Century can always donate land to Tsing Wan Kun and eventually this institute in the name of Tsing Wan Kun (which can be a t ong) will be holding the land for the benefit of all members of the tso. This will be discussed later. 4) Where two institutions of land holdings are owned by the same members, it does not mean that they cannot have any dealing between the two institutions as if they are unconnected entities. It would not be surprising that the property of one institution was not found in the list of property of the other (see 480E H). 5) In the context of acquisition of property in the name of a t ong (or institution of customary land holding) from a mere purchase of property with money of the t ong, a resulting Chinese worshipping trust would probably not arise, i.e. the doctrine of resulting trust would probably not apply in respect of property of t ong and tso (see 480H I). 4.22 According to Professor Dicks, whose expert evidence I accept here : when money was paid to a temple or monastery, it is a matter of intention as to whether the payer would acquire an interest in the land or property of that temple or monastery. Ordinary donation for incense and oil would not have the effect of creating an interest in the land or property of that temple or monastery (see Transcript 18 May 59J-L and 61H-L). This was perfectly in line with the decisions of the Prefect of Foochow reported in the work of Alabester (see 3 Exp Bundle 683). However, payment of a substantial sum of money for the construction of a new hall and/or for repair later of temple may support an inference of an intention to acquire an interest (see also Tang Yau Yi Tong (supra) at 476B D and 479E G). 4.23 The case of Yang-hung v. Chang-mou reported by Alabaster is reproduced hereinbelow, it is very relevant to the issue of donation and ownership Advowsons The foundation of a temple giving a right of patronage to the founder and his heirs gives a right indefeasible by subsequent benefactors, etc. The dispute between Yang-hung and Chang-mou appears to be as to who should really be considered Patron of the Fu-tang-tz y one Chang, who, having endowed it with lands, claims in consideration thereof to be considered Patron, and has furthermore altered the character Yang in the name and drawn up new records. Now it is evident that there cannot be two lords in one temple without continual broils, that one good deed would be the foundation of endless misfortune [if this were sanctioned]. I decree therefore that the temple belong to the Yang family; that Chang take his endowment back again, and sell it or give it to somebody else; and as I doubt seeing that he got a rent from the priests of Tls. 3.20 annually that Chang s gift was altogether a free and generous one, I order him to be flogged. per Liu Huang chung P. Note The foundation of a temple giving the right of patronage to the founder and his heirs gives a right indefeasible by subsequent benefactors; although these will be allowed to recall their benefactions if the consequent privileges of patronage are denied them. The summary way in which the unsuccessful party to the suit is sentenced to corporal correction on apparently general principles may seem rather arbitrary; but in point of fact, the flogging being redeemable by a small fine, it amounts to very much the same as a decree of costs against him. 4.24 The following propositions are also accepted from the experts appearing before me, namely :- 1. There was no concept of trust (let alone charitable trust) in customary law and gift to a temple did not give rise to any trust or would it make the property gifted trust property (see both Zheng Exp-487 and Baker 3 Exp-492). 2. There was no legal requirement of the appointment of manager for any such institution in customary law so as a matter of administration necessity, there would be some persons who actually exercised the management (Baker Transcript July 36R-37F). 3. In order to ascertain whether a particular clan, family or t was a charitable trust today, one would have to see whether the rules or constitution of this clan, family or t is wholly and exclusively charitable, that is to say by the rule of the clan, family or t , the mangers appointed are bound to apply the assets for and only for purposes which the law would regard as charitable. (See Tudor on Charity, 8th Edn. p.134, and Ip Cheung Kwok v. Sin Hua Bank Trustees & Ors [1990] 2 HKLR 499). 4.25 All the aforesaid legal decisions, propositions of law and Chinese customary law, will be applied to those findings of facts when each one of them will be considered in detail in the following chapters. However, some of the cases would only be cited at the appropriate place as a matter of convenience. Chapter 5 The To Family and Tsing Wan Kun 5.1 The To family had an oral tradition that their ancestors were the first to settle in Tuen Mun and had established Tsing Wan Kun . 5.2 Oral tradition, whether strong or weak, cannot by itself be any evidence sufficient to establish anything on a balance of probabilities since it is difficult to distinguish between oral tradition and unreliable boast. However, on the other hand, it is obviously unrealistic to expect that there would be direct oral evidence adduced to establish the Plaintiffs contention bearing in mind that Tsing Wan Kun had been established at least by the middle of the last century. The Plaintiffs contended instead that by reason of the evidence on the origin and acceptable history of Tsing Wan Kun and the control, connection and involvement of the Plaintiffs in Tsing Wan Kun and the very close relationship between the two of them, the Court may draw the necessary inference that in fact Tsing Wan Kun was established by the Plaintiffs (and in particular the 1st Plaintiff To Ka Yi Tso) and was an institution owned by the Plaintiffs. I would add here that the aforesaid Sung (which had been kept by the Tsing Shan Monastery and produced by the 1st Defendant) at least also provided a strong indication as to the actual relationship between Tsing Wan Kun and Chan Chun Ting. The Plaintiffs evidence will be examined in det SVy) XGW>m N?b V"u{v eVyU Yi Tso had four sons, there was never any challenge to the evidence given by the Tos on the basis and assumption that the Tso had only three fongs. There was no challenge by cross examination as to the extinction of the fourth fong either. The four sons of To Ka Yi were as follows vQ~g ?bGyX[ Q(W'Y XWSQWE\OO N(Wo\ N NqQ N?bP[k[. ation of the above reads ...Of the segment of Chung Mou, only one male remains, by the name Hoi Chi, who has moved to Nam Hang of Tai Po Market. Now still living in Tuen Mun are the descendants of the senior, second and third segments or fong. 5.6 The 2nd Defendant submitted that the Chinese name XWSQW ifferent pronunciation by people of the past. I accept the Plaintiffs submission that the inference is that the fourth fong had already been extinguished. Even Dr David Faure called by the 2nd Defendant said that in spite of his rather exhaustive study, he did not come across anyone with the surname in the eastern side of the New Territories or any that sort of lineage. Establishment of Tsing Wan Kun 5.7 As stated in Chapter 1, the stone lintel of Tsing Wan Kun was dated 1829 . Inside Tsing Wan Ku NAS Nt^) e;N) ^-f) 0u Q4l) Q4l) \QW) fVn) 4x )]q\) 0u he Plaintiffs had thereby acquired a proprietary interest in the Kun, or would remain to be the beneficial owner of the properties donated. Merely making contribution to an established temple which was owned by someone else did not give the donor any interest in the temple (see the reported case of Yang v. Chang by Alabaster). The doctrine of resulting trust had no place in the customary law here either. However, the generous support to the Kun by the Tso and individual members of the Tso of the To family indicated that the concern by the Tso and its members of the affairs and well being of the Kun. This supported the inference that the Tso was the owner of the Kun. (Although by itself it cannot be an inference which should be drawn by the Court on the balance of probabilities.) It is, however, not at all surprising that the Tso owned the temple and hence there were a number of donations to or rather setting aside of the properties of the Tso for a t ong (or other institution formed under Chinese customs such as the Kun). The rental payment transaction between the Tang Cheung Chun Yuen and Tang Mou Sau Tso in the case of Tang Yau Yi T ong is a very good example, see p.480G of the case cited (supra). 5.9 It is quite clear that out of the nine donors, there were one Tang and one Fan. There was, however, no other evidence of any other connection between the Tang and the Fan with Tsing Wan Kun. There was of course nothing to stop people from denoting to temples they did not own. This is the evidence of Prof. Dicks (21 May-19I) and Dr Faure (6 Exp 1472 para.25). Dr Faure of course also considered that the To clan did not own the Kun just by donating property to it. This would equally apply here. 5.10 We are not concerned with any doctrine of resulting trust in considering the donation. It is therefore not necessary to draw a distinction between donation made by the tso and donation made in the name of individual members of the tso. The result of a person making a transfer of property to a tso of which he is a member, would be that the property would form part of the assets of the tso and would also be for the benefit of other members of the tso. Likewise, a transfer of property to a t ong owned by that person s tso would have the same effect. This is the situation in the case of Chu Tak Hing (supra). The Ancestral Tablet or the Wooden Epitaph 5.11 There is an ancestral tablet or also called by the Plaintiff Epitaph was admitted under s.46 of the Evidence Ordinance. This is also admissible as a kind of ancient documents. 5.12 According to Professor Siu, the way to read it is to take the middle one The Tablet of the Honourable Lieutenant To Shi chi of the Chun Dynasty O!h \ lQ^yMO) e0uv lQ V u^yMO) he Kun for at least decades, if not century. To Man Hing had seen this Epitaph before the war when he worked at the Kun. To Shun also gave evidence that it was originally placed at the hall opposite to the tortoise pool, i.e. in the cockloft area over and above the entrance hall of Tsing Wan Kun. (See Appendix 1, photo 13). There was no evidence of any challenge being ever made by anyone at the temple or at all. Professor Siu said he believed that the repetition of the names on the Memorial Stone and the Wooden Epitaph means that both objects relate to the Kun . To Yi must have been regarded as the builder [or founder ] of the Kun by the maker of the Wooden Epitaph (see Exp-417). 5.13 It is true that the statement merely mentioned that To Yi was the person who established the temple and donated or gave land/rent to it. It is however of significance since if he did so, and had the temple and land put (or registered) in the name of the temple, that would be a strong inference that he did not intend to have the temple to be his own personal property but the property of the To Clan. It is the presumption of ceasing to be his personal property but of the clan, family or t ong as adopted in the case of Chu Hing. Of course, it can also be a donation and severance forever of those properties. It would depend on the intention of the donor and if no direct evidence is available, the surrounding circumstances why he built a temple would be relevant. 5.14 Furthermore, the subsequent conduct of the Tso making allocation (or gift) of land/rent to this Tsing Wan Kun would indicate a continuous interest of the descendants of To Yi to dedicate their property to the Kun, or if they had been the property personal to the successor of To Yi, to become the property of the lineage. 5.15 If the original temple was built by To Ka Yi in the 15th Century, it would be dilapidated after some time and would be refurbished or rebuilt later. It should be noted that according to Hong Hei s Decree of Clearan n wm hole of the Hong Kong region was devastated and became uninhabited. No buildings remained standing. Eight years later, the Hong Kong region was allowed to be resettled again and restored to its own name. Professor Siu believed that as a result of this event, the buildings on the mountain, i.e. Castle Peak Mountain, would have been demolished as well. Thus, a temple must have been constructed, according to Professor Siu, after the inhabitants returned, probably on or near the ruins of the old Tsing Wan Ku He is, however, vague about the dates. If he is correct, the Kun must have been rebuilt after the inhabitants returned to Tuen Mun which was not until about AD1670. 5.16 The present stone lintel of Tsing Wan Kun was dated 1829. The findings by the Architectural Services Department Maintenance Branch (i.e. Book 13 herein) in January 1990 confirmed that the structure at House Lots 1, 2 and 3 (i.e. where Tsing Wan Kun is now situated) was probably built in 1830 1840. This is consistent with the bell donate WSwmZ 1880. 5.19 The statement in the Epitaph that Yi established the temple by people in the much later generations at the time when the tso had made substantial donation (or allocation) of field or rent thereof to the temple would, more likely than not, indicate that the descendants of To Yi would ascribe or dedicate or treat the property of the temple built or established by To as property of the tso. Thus whether the Kun was actually built by To Ka Yi himself would not be that important. 5.20 Although there are many other ancestral tablets being placed at the Ancestral Tablet Hall of Tsing Shan Tsz today, there is no evidence that there have been other ancestral tablets of other surname (other than this one) ever placed at the premises of Tsing Wan Kun. In all probabilities, this tablet, which had originally been placed inside Tsing Wan Kun opposit `y e Buddhist Tsz as a family chapel (see 33P R). It was only after 1500 that there was a gradual change. Ancestral hall was established only thereafter. Thus, it would not be surprising at all that if the Tos had a monastery themselves, To s tablet would be found there. In view of the fact that the names of the persons included in the Epitaph were of very different generations, it is probable that the Epitaph was a consolidated one which grouped the tablets of various persons starting from To Yi a yMO) even living person (see Baker 8 July-67P-T, 68B and 71G-M). It gave rise to the inference that this Tao Ka Tso Tong was at the place opposite to the Dou Mou Dian across the Tortoise Pool where the Epitaph was originally placed (see Appendix 1, photo 13). This was well before the Ancestral Tablet Hall or Kung Tak Hall ( Y'Y wned one would own the other. The 2nd Defendant submitted that there were contrary evidence, namely :- (1) In the bell, the donor was surnamed Tam in 1842; (2) In the Memorial Stone where there were donors surnamed Tang and Fan in 1843; (3) The Wooden Epitaph made later (not earlier than 1880) also have the Fan of the memorial stone, one Mr Tang Ki Choy GYMb) +Y ^yi`) e bell. Dr Faure in his article Hong Kong and China in the Village World reported in the Journal of the Hong Kong Branch of the Royal Asiatic Society, Vol.21, 1981 said at p.80 that :- The general principle seems to be that no one, not even outsiders, can be barred from worshipping the gods. In this way, even a new comer to a village can join in the she feast or worship at temple festivals, although he may not be accepted as an organizer (host) for these occasions. No one, however, goes into someone else s village to worship at the hall of worship [Shan eng]. It is a much more private institution for the village than a temple or an earth god shrine. 5.24 Since it is open to the public, any visitors can make donations to the temple, be it incense and oil or even rental from rice field. The Fan, Tang and Wong mentioned in the Epitaph and the two gentlemen mentioned in the memorial stone (there is no evidence to suggest that Tang Ki Choi and Tang Yuen Wing were the same person) seems to be irrelevant. It is only evident that they must have made quite substantial donations to the establishment of the temple and it was particularly so for the Tang and Fan mentioned in the Memorial Stone. It is of no surprise that the Tos regarded them as important don e;N) ]Nt^) NCQ 'Y kckU MRkQ w ' [O:r) og!n y+^) og!n [O:r) og!n y+^) s in Tsing Wan Kun there and then. They were probably placed at the Entrance Hall. 5.32 As it has been stated herein before, the To Ka Tso Tong could only mean the Taoist Temple where the Ancestral Hall was also situated. I accept the evidence that the placing of the Wooden Epitaph at the hall facing the Main Hall across the tortoise pool (which is the hall at the cockloft area of the Entrance Hall) was where the To Ka Tso Tong was. The fact that this Tao Ka Tso Tong Cheung Sang Luk Wai y MO) ruction of Da Hung Bo Dian of the Monastery, there were some uncertainties on the exact locations for the smaller and therefore less important lanterns, is not of any significance. No doubt, the main lantern was hung at the Dou Mou Dian and that remains to be so today. As for the less important lanterns, the fact that some clan members may be attracted by the idea that some lanterns should be placed at the Da Hung Bo Dian of the y[O) } NASt^) s at the back when the Tsing Dynasty turned into the Republic of China (1911), 1919 and 1921. The Book also contained details as to the sharing of the costs of the ceremony on various dates : 1884, 1888, 1904, 1920 and 1922. The entry in 1922 expressly said that the lantern money for Tsing Shan, Hau Kok ( 'YQg) 'YQg QVy8^ N AS Nt^ that the idea and substance of this ceremony were set out in the video. In the video, the 1st Defendant was asked to add oil to the lantern to keep it burning until the close of the lantern a few days later. The 1st Defendant said that it was an act which did not always take place every year but for the sake of the video. However, Sik On Kin said in the past, someone would be responsible to do that and that someone was from the monastery. It was Sik Kin when he was there and in his absence Kwok Wah, i.e. the 1st Defendant who was responsible to keep the lantern lit. In other words, it was not just for the 1996 video. Exclusivity of the Lantern Lighting by the Tos 5.37 Apparently PW2 Sik Kin suggested that there were other non To people coming to light lanterns. From the transcript he just agreed that some non Tos would bring along small lanterns, and that was all throughout the year when they had sons. Upon reading the transcript, I accept the Plaintiffs submission that the confusion probably [OMR ss on a number of occasions and it was plain that PW2 did not actually see any other non Tos coming with lanterns. The fact that he said there were probably other non Tos coming to light lantern which he did not know is not admissible evidence to show that there was other people coming to light lantern of the same type as the Tos. 5.38 The 1st Defendant himself said no other family would conduct any lantern lighting ceremony at Tsing Wan Kun other than the Tos. This is consistent with PW2 s evidence that it was possible that non Tos had also been bringing their own lanterns to perform lantern lighting ceremonies but denied ever having witnessed the same I have seen no other family, other than the Tos coming to lit up a lantern like that (1T 219P The 1st Defendant reaffirmed that the ceremony was just for the Tos. He further said the Tos did it every year in the manner as recorded in the video. 5.39 Professor Baker said the same practice of lantern lighting could also be found at the Tai Wong Temple of Tai Wai in Shatin. He said it was a communal right of lantern lighting. In other words it was not restricted to one particular clan but various people who would see fit to light lantern at the temple to announce and cerebrate the addition of a male descendant into the family. However the evidence in this case is that only the Tos performed such ceremony at the Tsing Wan Kun which is different from an ordinary visitor in the vicinity or otherwise to come and lit a lan [OMR temples. I agree however with Counsel for the Plaintiffs that this issue is irrelevant to the ownership of Tsing Wan Kun. It has never been the Plaintiffs case that because the Tos owned these two temples, they therefore also owned Tsing Wan Kun. Thus the ownership of these two temples will not be considered herein. The Free Vegetarian Meal 5.41 Whilst the evidence of the Tos continuously coming to Tsing Wan Kun for lantern lighting was overwhelming, it was also clear that as a matter of custom and tradition, when they came, they would be served with a vegetarian meal which was free of charge in a sense that the monastery would not present a bill for the vegetarian meal to the To. It contrasted with other visitors who inevitably nowadays would be charged $40 a dish for a vegetarian meal. The Tos considered that the free meal was a symbol of owning the temple, according to the evidence of To Lun, To Shun and To Kwai Tsuen. 5.42 That the owner of the temple would enjoy the privilege of free vegetarian meal is supported by the expert evidence of Professor Dicks called by the Plaintiffs who cited the writing of Holmes Welch (at 3 Exp-679 680) as follows Usually the buildings and land were registered in the temple s name, but the rights of ownership were to be exercised by the manager as an individual. Although he had to follow his master s wishes in handling it (if his master were on hand to express his wishes), it was much easier for him to sell institutional property than it was for the abbot of a public monastery. Thus an unscrupulous person could usually make more money as head of a small temple. In some cases the rights of ownership were not exercised by the manager, but by a group of laymen who had built the temple and then endowed it or supported it from year to year. Such a lay family, clan, or village was known as the mountain owner (shan chu) and, in fact, the property might be registered in their name. Whether it was or not, the rights they exercised were unknown in other Buddhist institutions. They could decide, for example, who was to be the manager and insist on the expulsion of monks that they did not care for. They could ask to be served a vegetarian feast from time to time. They had to be addressed respectfully as uncle or elder brother by the monks who lived there. What they principally expected of the monks was the regular worship of the family or clan tablets that were hung in the halls of rebirth and longevity. In other cases such a temple s raison d tre was to provide security and comfort for some member of a rich family who had decided to become a monk or nun. According to one source, lay ownership was especially common in south China. In the country as a whole, it seems to have been exceptional. Most temples were established with funds collected from various lay supporters, who retained no control over them once they were built. 5.43 Apart from the rights of ownership, the following points should be noted from this passage, namely :- 1. The lay family, q\;N) yMO) N[Ox[) gxk pq\;N q\;N e;Nq\;N \ g kr^ W0W9ei e;Nq\;N g k)R&T e;Nq\;N S g kr^ W0W9ei q\;N) e;N) could take part in the personnel matters of the monasteries to the extent of expelling the monks from the monasteries in extreme cases. Now that land reform had completed and reallocated, do those donors and patrons still own such rights? A: Treating the donors and patrons to vegetarian feast and their power to interfere with matters of the monasteries as mentioned are bad practices. They all ought to be abolished after the land reform. The work has been used the Plaintiffs in the cross examination of D q\;N) e;N) ry year that the monastery should treat the Shan Chu or donor with a free vegetarian meal. Further, they has the right to interfere with the monks of the temple to the extreme of expelling them. Although the answer contended that since the establishment of the new China, i.e. People ["u) enough to cover, in monetary terms, the costs of the meal, therefore the meal was not, after all, free. I must say that I accept the Plaintiffs submission that this entirely missed the point. As owner of the temple, there is the right to have a free vegetarian meal, and the taking of this free meal is a symbol of exercise of ownership. This is supported by the authorities cited herein before. It does not matter that the costs of the meal was ultimately borne by the owner or paid for by the owner in other form. In fact, conceptually, it was not borne by the owner. The Plaintiff submitted that it is similar to a restaurant owner who, in exercise of his right of ownership, could have a free meal at his own restaurant, but in fact it was his own money since the restaurant belongs to him. This is somewhat different from the free vegetarian meal we have at the temple where the lawful abbot has the power of control in the management and administration of the temple to a certain extent. It is in line with the usual Chinese custom of what I have given you is more than what you have given me in return . 5.46 The amount paid as oil and incense money (in 1996 it was an odd sum of $2,005) is part of the worship they performed at the Kun. It was not related to the meal at all. 5.47 After we have considered the Memorial Stone, the Wooden Epitaph and the Lantern Lighting Ceremony Book, I shall consider whether there is any evidence to suggest that Tsing Wan Kun was not, or no longer, owned by To Ka Yi Tso. The 2nd Defendant said there was by relying on the aforesaid Account Record Book, also known as the Record Book. The Plaintiffs however said the Record Book, or the entry therein, actually supported their case. It concerned with an entry under the category of XGW>m N?b V"u{v e by Dr Faure as follows Record Book of tax duties and ancestral properties to be separately managed in equal shares by the three segments of the To Ng Lau Tong . Professor Dicks translated this Chinese manuscript Record Book as An Account Book to Record the Fair Apportionment of the Shared Management of Grain Tax Obligations and Sacrificial Land Among the Three Fongs of the To Ng Lau Tong I prefer Professor Dicks translation. This Record Book was a copy made in 10th Year of Guangxu Reign (i.e. 1884) of a similar work compiled in the 6th Year of the same Reign (i.e. 1880). 5.49 The bone of contention between the parties concerned with an entry therein under a certain category in respect of the Holy Mountain Tsing Wan Kun at page 24 of the Record Book (i.e. D6-1522). This was an entry made under a different category of fields as follows QVy@bz kt^r 6e } kt^r e0us| R N?bGW>m k?b6e \dks| ?bs| N?bGW6e rpetual [transferred] land rice silver of 7 qian and2 fen. To be divided equally by the three segments, each segment receiving in silver 2 qian and 4 fen. Within this rice money, 700 cash should be [given] in supplement to the senior segment. The remainder is to be received equally by the three segments. 5.50 As I have said, the parties cannot agree on the translation simply because any translation would be a kind of interpretation and construction of these phrases Dian Duan Chu e0us| agor) would be in possession of the land mortgaged. 5.51 Basically the 2nd Defendant and her experts contended that the phrase used denoted a mortgage in perpetuity or equivalent to a sale in severance and therefore To Ka Yi Tso had severed all its relationship with Tsing Wan Kun. Consequently, it no longer was in possession or otherwise retained any interest in the property of Tsing Wan Kun. 5.52 Having heard all experts on this area concerning the issue of Dian Duan Chu , I consider that the most logic my0u) x[0u) the To Clan together with the heads of the three fongs into which the lineage was divided, the object of which seems to have been to share between the fongs the responsibilities (sometimes accompanied by incidental benefits) of managing the various clan properties and paying taxes due on such properties on a permanent basis, while retaining the properties themselves in the common undivided ownership of the Clan as a whole. This is a common type of arrangement in lineages with substantial endowments as an alternative to the periodic rotation of responsibilities. 5.54 Immediately following the concluding process of the arrangement on page 12, there is a lengthy list of various ancestral properties of the To Clan. The first list begins at page 13 which says QVy@bz QVy@bX["umi er at page 24, the category of Dian Duan Chu appeared as aforesaid. Under this category, Holy Mountain Tsing Wan Kun was mentioned at page 31 as aforesaid. This entry concerning Tsing Wan Kun was listed as one of the properties of the To Clan, subject like the other Clan properties, to the terms of the agreement between the three fongs. The income of this property was to be divided equally among the three fongs. At page 5 of the agreement, there was a general reference to the sacrificial property cov & . expressions denoted certain possible indications that the properties listed in the Record Book to which they referred were subject to encumbrances or other incidents. 5.55 Professor Dicks opined that the construction of the expressions should be set against the main features of land holding and transactions in land in the Qing ( ay conveniently be called tenures ; that is to say, the sets of conditions on which a particular parcel of land was held from the Emperor. A very large proportion of the land in late 19th Century China was held under what is often called the common tenure l0u) d out of a particular kind of tenure by contract or by private grant. Unlike the tenures, these for the most part had no statutory basis and were subject to a considerable degree of variation from place to place in accordance with local customs. In addition to the ordinary leases of various lengths, these interests included such institutions as perpetual leases and various forms of conditional sale, of which dian sales, mentioned in the Account Book, were an important example. Interests in this category w of this kind as estates . The third category of interests comprised the various rights in land which were incidental to the identity and nature of the proprietors of the land, especially those which arose from family law. Virtually all interests in land were the property of a family and in principle subject to eventual division among various households or branches of the family from generation to generation. The agreement contained in the Account Book explicitly excludes any intention to divide proprietary rights among the fongs (see page 2, line 5 thereof). 5.56 The common tenure mentioned above constituted the relationship between the State and a particular proprietor (whether an individual or a plurality) responsible for the payment of tax and, in former times at least, the provision of certain services. 5.57 In most cases where estates were created, the nature of the transaction left no doubt where the basic tenure resided, that is to say who was liable to pay the land tax. The simplest form of tr \gU} 8l N rrevocable sale by the To Clan, who concluded the transaction at the Ancestral Hall, Ng Lau Tong, in the 12th month of the 9th Year of Guangxu reign (1884). 5.59 There was, however, another category of revocable sales as opposed to irrevocable sales . Such sales were similar in their terms to dian mai 0u9h) 0u b d which might co exist almost indefinitely. The purchaser, who had, as part of the surface of the land, the exclusive right of cultivation, was bound to hand over to the seller a sufficient sum of money or quantity of grain to defray the tax. 5.61 For this reason, the owner of the subsoil or root of the land was in some parts of China referred to as liang hu ( CO6b) ng from the transactions described so far were of a more or less long term nature. The question arises how far land in the New Territories might be encumbered by perpetual leases or mortgages. In the Memorandum of Land appended to the Report of the Colonial Secretary and Registrar General of Hong Kong (7th February 1900), which is commonly called the Lockhart Report , there is a reference to the institution of leases as follows The relation between landlord and tenant is often a complicated one, chiefly owing to the system of perpetual lease. Under such leases the landlords have practically renounced all rights to the exercise of ownership and are contented to do nothing further than to receive a yearly rent. They can sell this right of receiving rent, but the land is otherwise under the absolute control of the cultivators, who often sell their perpetual leases. The landlord is called the owner of the Ti Kwat e0u) subsoil right with the expectation of being paid an annual sum sufficient at the very least to defray the tax due from them as subsoil owners to the Imperial Government. 5.63 Professor Dicks, in this respect, also quoted Peter Hoang A Practical Treatise on Land Ownership (1922 1 China Law Review at p.239 where the soil and surface of land was discussed as follows 74. Land is divided into the soil, |6b, CO6b, zQY, |0u, y0u, |0u, |0u. 76. The soil is commonly worth from three to six times as much as the surface; if they belong to different proprietors neither has the right to build a house or make a tomb on the land. He who possesses only the soil cannot himself cultivate the land, but is required to lease the soil to him who possesses the surface, and who has the right, unlimited in time, of leasing the soil, nor can he expel the lessee at his own will, except in the case where the tenant owes him for rent an amount equal to the value of the surface. When the possessor of the surface has contracted a debt of this kind, he is expelled from the cultivation of the land, and the surface becomes the property of the owner of the soil; then the latter may sell the surface to another or may lease it with the soil. 5.64 Thus Professor Dicks considered that this is a highly probable explanation of the reference to absolute sale ( duan tian ) at page 3 of the Account Book, inasmuch as it seems to resolve the difficulty which arises only if the absolute sale is assumed to refer to the subsoil right. Moreover, while the anti thesis between the expression dian and duan remains, if the expression of the latter term is correct, both types of transaction would have achieved a similar result in the context suggested by the Account Book : namely, that each type of transaction would have led to an alienation (conditional in the case of dian , irrevocable in the case of duan ) of the surface right in the particular parcel of land in question, leaving the To Clan as the proprietors of the subsoil right with the right to the annual payment of a sum sufficient at least to defray tax liability and in all likelihood, to provide income in addition. Thus the various references to the property described as Tsing Wan Kun in the Account Book are consistent with the view that in 1880 it was part of the sacrificial property of the To Clan of which the Clan was receiving the benefit without any apparent encumbrance. 5.65 In the end, I accept the Plaintiffs to receive rent such as those broken off in the inscription of the Memorial Stone dated 1843). As explained in Professor Dicks evidence, the same have been transferred by the Tos to the Kun. 5.66 This is not inconsistent with what was written in the Genealogy by To Fook Tim that field had been given to the Kun for the maintenance of the monks, etc. The reference to perpetual grain income uld indicate that the Tos had a reasonable expectation that the money would be received. The fact that $700 cash from this source was to be applied for payment of compensation to the 1st Fong would further support the inference that the Tos believed that rice silver would come steadily from Tsing Wan Kun because, otherwise, no one would accept that as a compensation. 5.68 The fact that the location of the fields concerned did not appear from the entry was neither here nor there. The three fongs, being par arious entries in the Record Book did indicate that the Tos held land and their lineage influence extended far beyond the five To villages. The Tos undoubtedly owned the land and were influential right up to the seashore (see entries at pages 10 of the Account Book), and they were certainly the owners of the slope of the Holy Mountain where Tsing Wan Kun was (see entry at page 32 thereof). This indicated that Tsing Wan Kun was well within the area of the lineage control of the Tos. 5.70 In the end, I am of the view that the entries in the Account Book actually confirmed the Tos ownership of Tsing Wan Kun rather than the fact that the Tos had severed its relationship with Tsing Wan Kun. Conclusion 5.71 Summing up for the evidence considered so far, it is my finding that the Memorial Stone, the Wooden Epitaph, Lantern Lighting Ceremony Book and the conduct of lantern lighting together with the free vegetarian meal, and the Account Record Book are sufficient to conclude, on the balance of probabilities, that the Tos actually established and owned Tsing Wan Kun in the mid 19th Century, i.e. before the British administration in 1898. The Account Book did not indicate any contrary intention but in fact confirmed the ownership of Tsing Wan Kun by To Ka Yi Tso. This is also fortified by what happened at the temple before and after the British administration which involved the gentleman called Chan Chun Ting WeP) which included the Tsing Shan Monastery. 6.2 The latter, Dr Lai (as mentioned in the last Chapter) is an expert in the history of Taoism for 10 odd years and at present is a lecturer at the Chinese University of Hong Kong. 6.3 According to Professor Siu, the mountain which we called the Castle Peak, or Tsing Shan, or Tuen Mun Mountain has been known and named for years. According to Book Roll 43 of the New T fwS) wm7YS og!nq\) [q}) og!n KNGY) og!n (Wqg #~og!nq\ }og!nKNq\(Wqg Lu N~vkQAS f gog!n+^ OE\o\ p T. is situated at Tuen Mun of Tung Kwun, about 380 li. This place has been passed on from the old generations and Buddhist Priest Pui To had lived in Tuen Mun. It is well known for this reason. Thus the reputation of Pui To Mountain is from the period of gASkQ}P aq\) ]t^) f the Chinese calendar, it was named as Shui Ying Mountain . Thus Pui To Mountain was also known as Shui Ying Mountain from the beginning of the 12th Year of Lau Tai Bo, i.e. AD969. 6.5 According to Dr Lai, who gave me an impression that he is a very discreet and careful historian in Taoism, he opined that whether Tsing Wan Kun existed before 1829 as the Pui To Nunnery or Temple, there is no reliable material. He said : N[OYex[ /fog!n 0og!n [(WS Nt^ [t^ 0 01 l+^@b (WCQ 0nf!n sSog!n [ 09e `BfENR Sq\-N X@bz /n[OYe nAm 0 0,{ N/ 0 02 FO/f og!n /f&TX[(W uog!n [/f&T1\/fR &N N Sl\ N Pq}w GY N d 0qg 0og!n 0KN 0KNX[(W dogeQR Notwithstanding that, some scholars of Buddhism regard Pui To Tsz as the predecessor of Tsing Wan Kun, saying, Pui To Tsz was converted to a Taoist temple called Tsing Wan Kun in Kai Chou Year of Dao Kwong (1829), and Dou Lou Dian was built in Yam Yan Year (1842). 1 Alternatively, as opined by Buddhist Master Tat Kwong, Po To Tsz i.e. Pui To Tsz was converted to Tsing Wan Kun in Yuen Dynasty. Or alternatively, as stated by Lai Tseng Miu kai, Tsing Shan was a place where Buddhist rites were performed by holy monks. But unfortunately as time went by it fell into desolation. On the hill there used to be just a small hut, which was left behind by a Taoist priest and was later refurbished and named Tsing Wan Kun. The traces of the holy monks, on the contrary, were buried in oblivion. 2 Nevertheless, the above three views about the relationship between Pui To Tsz and Tsing Wan Kun are not sufficiently substantiated by credible historical evidence.3 -------------------------------- 1 Ko Wing siu : The Origin and Development of Buddhism in Hong Kong Fa Xiang Society Journal , No.3, 1995, p.5 2 Lai Tseng Miu kai : Tsing Shan Tsz and the Person Hin Kei , p.21 3 According to the record about Pui To Nunnery contained in Tung Kwun County Gazetteer, there was no such thing as Tsing Wan Kun . It only says, Throw a cup into Tsing Wan (light green cloud) . Therefore, at present we still do not have any reliable evidence to prove whether Tsing Wan Kun had existed before the setting up of the stone lintel in 1829. We also have grave doubts over whether Pui To Tsz was the predecessor of Tsing Wan Kun. To link them up loosely, as it were, would not help us much in further understanding the origin and history of Tsing Wan Kun. Instead, it was more believable that the two were temples with a different religious tradition and background. 6.6 According to Professor Siu, the mountain is also og!n) ~NPy) x(W q e;R"o~N Nt^rk!k2u og!n y+^KN EQog!nq\ og!n [O:r og!n y+^ g Wan Kun as opined by Professor Siu himself.) 6.7 According to Dr Lai, Dou Mou Dian is undoubtedly a Taoist temple. This Goddess is being worshipped in the following important Taoist temples in China :- 1. Zong Yuan Chen Dian, Taoist Bai Yun Temple, Bei Ye}v [CQhf N{^'Y+^ g'YA dk0W NASt^MR sS9e >T gB} qKN CNuO !k,{ eog!n fCN1 QHr) ver trodden by people. Only a small hut stood in the wild bushes of thorns and hazels, that was the transformed Tsing Wan Kun. Since the abbot and I had the aspirations to finish up there, willpower and strength were summoned and gathered, and every single tile, rafter, plant and tree was selected one after another. That was how the present Pui To Pavilion and Heavenly Precious Hall came into being. Consequently Grand Precious Hall and Wu Fa Dian were first completed. (This book was published in 1927) g'YA N{^'Y+^) og!n g 'YA that the place was barren with only a small hut was probably an overstatement by Cheung on the condition of the place made subconsciously in order to buttress the achievement of Chan Chun Ting and Cheung Sum Chuen in the subsequent development of the place. The fact that in 1901 to 1905, the demarcators employed by the Hong Kong Government from India (in what was later on commonly known as the Indian Survey ) were able to identify the owner of Tsing Wan Kun and the three House Lots conclusively. This would rebut any such suggestion that the place was in fact abandoned. Further, just a bit earlier in 1892, there was a set of couplets given to Tsing Wan Kun which is still hanging in the Dou Lou Dian. This is the Placard dated in the 18th year of Kwong Shui i.e. (AD1892) N{^'Y+^ 3ofm) HQ)YS OIYHQ)YS v 0'Y NCN/f g 0 vHQ)YS O[OYe SvuBfo\ [KNMR CNHQ)YS \vQ7u;N l To 0sSR q\,{ NVy+^ 0'Y N/f(WR cHQ)YS HQ)YS TBfq_ [Ye9e t^E\ v 0 Tq\J N(W1 og!nq\ 0/fBfGPb ^rk 0 N1\(W N(W1 S To %fYO 0 N, 0YO N!n Nxkck S To bKNBf _xe, vxkckS vu/f N(WR vHQ)YS N/f(W1 t^0R g'YA Neu 0 GY/f(W xk)Y 0 02 N/f(W1 N{^'Y+^ x 01\o \eQ[O NrkJR 0 02 N(W1 t^KN Mbzl c[OYe S To N(W1 vQBf N@bvuR _[OYe O(W1 t^MR N6q/f yr%R/fHQ)YS v0Rs NCN/f N[OYe 0 Tq\J wSmQ og!nq\J g'YA t CHAN Chun ting was originally a follower of the Sin Tin sect of Taoism. According to Sik Ming s Gazetteer of Lantau, in the column About Sik Miu sum, CHAN was persuaded by Sik Miu sum and converted from the Sin Tin sect of Taoism into Buddhism and became a Buddhist monk:- Before the then Tsing Shan Tsz came into existence, it was a Pure Yang Taoist Kun or Temple, an establishment for the followers of the Sin Tin sect. Buddhist monk Miu sum persuaded the priest in charge to follow Ti Han as his master to become a Buddhist monk. He took the Buddhist title of Hin Kei [i.e. CHAN Chun ting]. He became the founder of Tsing Shan Tsz.17 In other words, before CHAN Chun ting was so influenced by Sik Miu sum, he was taking charge of the Sin Tin sect in Tsing Wan Kun, gathering followers for Sin Tin Taoism. Other than Sik Miu sum, lay devotee Ko Hok nin also had a part to play in the conversion of CHAN S religious faith. According to Ko s Visits to the famous Mountains, he visited Pui To Mountain in Tuen Mun in 1920 and at the time [he] made use of a vacant room somewhere one li away from the building of the temple to the west, shut himself up in recluse for a hundred days well beyond the Lunar New Year. 18 We believe that CHAN first met Ko on that occasion. Ko went on and said in 1921 he advised CHAN to make his way to Master Ti Han in Kwun Chung Tsz, there he was tonsured as a Buddhist monk, and he took the Buddhist title of Hin Kei. In the 10th year of Republic of China (1921) in spring time, I went back to Kwang Tung form Yunnan visiting the tomb. I invited the master to Ning Po, persuaded Gracious Ti Han to take a certain disciple, namely, CHAN Chun ting of Tsing Shan, Hong Kong, someone who had twenty to thirty thousands followers in South East Asia and they were not set for the right path. I thrice went across the ocean, fine tuning him, set him onto the right track, sent him over to be tonsured by Master Ti Han. He was renamed Hin Kei. By the time he was tonsured, he was overburdened with distorted karma or, misfortune, I took all over. Later on his followers in tens and thousands were all converted to the right path.19 When Ko said CHAN was not set for the right path, he was referring to the Sin Tin Taoism CHAN was taking charge of in Tsing Wan Kun. ----------------------- 17 Sik Ming Wai The Gazetteer of Lan Tau. , p.49. 18 Ko Hok-nin: Visits to the famous Mountains, Vol.6 visit to the Pui To Shan of Tuen Mun , p.327. 19 Supra, at p.464. According to Ko Hon nin, CHAN went to Kwun Chung Tsz in Ning Po to become a monk in 1921. But according to Lam Tai s The Panoramic of Tsing Shan Monastery in The Acts of Hin Kei, Lam was of the view that Hin Kei went to Kwun Chung Tsz in Ning Po in the 7th year of the Republic of China (i.e. 1918), tonsured by the Old Master Ti Han under Tei Toi sect. 20 It does not matter whether CHAN became a Buddhist monk in 1921 or 1918, the point is, this has shown as a matter of fact that The Stone Inscription of the Biography of Master Liu Wan regarding when Hin Kei converted to Buddhism is incorrect and incredible. The latter even says: the old monk had his hair shaved and restricting himself to vegetarian food since he was seven and his affiliation with Buddhism is far and wide. 21 Furthermore, there were the facts that (as we are more convinced by Ko s record) CHAN was only attached to the Three Precious Ones , practising Buddhism, turned himself into a Buddhist monk, tonsured by the learned Master Ti Han, renamed Hin Kei all only in 1921. Before that, in 1914 when the Sung Tip was concluded, his own status was that of the priest in charge of Tsing Wan Kun, how then could it be said that his religious status was found on Buddhism? Taking a retrospective view, we have reasons to believe that right before and after 1914, CHAN was interacting with the To Clan as the Taoist priest (in particular Sin Tin Sect) in charge of Tsing Wan Kun. In other words, in the eyes of the To Clan, until CHAN was tonsured in Kwun Chung Tsz in Ning Po and came back to Tuen Mun, CHAN was a respected Taoist priest taking charge of Tsing Wan Kun. From the words and the reading of the Sung Tip there was nothing to suggest either expressly or impliedly, that CHAN was understood to be a Buddhist monk . --------------------- 20 Lam Tai-fui s (The Panaramic of Tsing Shan Monastery), p.11. 21 (The Chinese Stone Inscriptional Writings of H.K.- Vol.I of the New Territories), p.74. 6.12 No doubt Chan was responsible for building the Three Precious Hall also known as The Grand S T'Y S Tw cripture house by the Pui To Cave. He lived there and studied Buddhism. He then named his monastery Tsing Shan Tsz. By the 9th Year of the Republic of China (AD1920), the main buildings of Tsing Shan Tsz had been completed and the Kun had been restored according to the blue Wooden Placard of Restoration of the Taoist Temple N'YS _[OLk) Chan was acquiring land in his own personal name. It was not until 20 August 1925 that he started to buy land in the name of Tsing Shan Monastery. (See Appendix 1 Photo 21, the bronze Cloud Placard said to be donated by Chan in his Buddhist name Hin Ki in 1926.) 6.14 All in all, we can safely conclude that Chan was a Taoist priest between 1914 1920 at the end of which he was formally converted into a Buddhist Monk in 1921, such a transition was of course gradual and not sudden or at the spur of a moment. In the course of his period of conversion, he began to purchase landed properties and started to build the Buddhist temple. 6.15 Earlier the confirmation of his appointment as a Taoist Abbot of Tsing Wan Kun by an agreement was contained in the Sung Tip Court Certified translation produced by the Plaintiffs; the translation made by Chan Sing, Associate Professor in Translation and Chinese at the University Hong Kong as produced by the 2nd Defendant; and the Court Certified translation by another Court Interpreter on (2), produced also by the 2nd Defendant. All parties, however, agreed that this Court is invited to and should construe the original Chinese text (as with other Chinese documents appearing herein) and not any of the translation. 7.2 It ^ 0hQ q\;Nv f3}I{ q\og!n OIY^y[O VlQ(u S~vmQAS'Y Y>wI{6e c/e(u ixk Ote ^-Nr g0u Wir"u Nxks kt^6e [AQX NCS]N~v Vt^]N ^ 0 Sing s translation (Stamp Duties Head Office) We, the signatories of this Deed of Grant and Owners of the Mountain, Tao Yung, (Tao) Hei Ting, (Tao) Din Kwai, (Tao) Tong Hing, etc. of the gentry hereby agree to the grant of Pui Tao Monastery and Tsing Wan Temple in Tsing Shan (Castle Peak) to Chan Chun Ting who shall have charge thereof and maintain the worship with offerings to the Buddha and the Gods. In return Chan Chun Ting shall pay to the Taos in legal tender a sum of Three Hundred and Sixty Dollars. All incomes, expenses and matters related to the Monastery and Temple shall thereafter be in the charge of Chan Chun Ting, who shall also administer sacrificial offices. He shall have full power and discretion over renovation and the building of new structures. He shall also have management over the fields and orchards(4) which go with them and the produce, collect rentals and pay taxes and rates thereof. Chan Chun Ting is a person of upright and benevolent character. The Taos shall not on any pretext extort money or benefits from him or replace him as the person in charge of the Monastery and Temple. Chan Chun Ting on the other hand shall not by means of this Deed give over privately the charge of the estate and the sacrificial duties to somebody else. The above has been agreed by the two parties of their own free will and in the spirit of fairness. Lest a verbal agreement should prove insufficiently binding, this deed has been drawn up to provide the necessary certification. Manager : Tao Tong Hing Gentry : (Tao) Yiu Tung Tao Hei Ting (Tao) Din Kwai 21 September, 1914, The British (Calendar) Money duly received (Tao) Yiu Tung (Tao) Hei Ting Background 7.3 As a preliminary observation, it is significant that when Sung Tip was executed in 1914, it was at a time fairly close to the Block Crown Lease granted in 1905. It is particularly so for Lot No.416 registered in the name of Tsing Wan Kun which was only included in the Supplemental Schedule to the Block Crown Lease signed by Governor Lugard most probably after 1910, probably in early 1911. The registered managers of Tsing Wan Kun were stated therein as To Tong Hing and Tang Yun. This was also stated in the Rent Role Certificate of Tsing Wan Kun which listed out all the lots of land and house lots owned by Tsing Wan Kun. 7.4 Further, at that time, Chan Chun Ting had been acquiring some land in the vicinity of Tsing Wan Kun, namely, Lots 417, 418, 440 and 484. Chan was a businessman and certainly experienced in dealing with land and its auction with the Government. He must therefore have been aware of the position of the ownership of Tsing Wan Kun and lands registered under its name. In other words, Chan Chun Ting had the art and skill as a businessman and was endowed with the knowledge of and intricacy in the Hong Kong Government administration, particularly in respect of land or New Territories land matters. 7.5 Further, it should be noted that this Sung Tip document was produced by the 1st Defendant. In other O{ N{^) copy of this Sung Tip. (Whether there was one for the To family is not even clear.) The monastery, having been in possession of this Sung Tip, had relied on it. According to the District Office record, both Tat On and Mung Sang had cited it as a title document to support their claim to Tsing Wan Kun and Pui To Tsz. This document is now considered in more detail in order to decide what was actually agreed between the To Clan and Chan Chun Ting by this document dated 21 September 1914 of the Gregorian cal q\;N) q\;N) ed by temple owner in Southern China. This owner is usually a clan or village who owned the property. The author relied on Modern Buddhism which was reproduced hereinbefore. It was in the form of question and answer. The answer that such a practice should be abolished, however, suggested that the practice had been going on before 1949 in Southern China. That was the period of the Sung Tip. 7.7 The contracting persons on one hand (for the To Clan) were : 1. To Tong Hing ( N?b) N?b) To Tong Hing described himself as the manager, Sze Li. 1914 was of course after the Block Crown Lease of 1905, and the only explanation (as will appear more clearly in the later chapter when the District Office record is discussed), would be that To Tong Hing was the manager of Tsing Wan Kun. He had never been a manager of any other tso or t ong of the To family. 7.13 Thus, the irresistible inference to be drawn is that the four gentlemen must be representing To Ka Yi Tso who owned Tsing Wan Kun. That is og!n og!n OIY^y[O [AQX mutual agreements of the two parties of their own free will (or the above has been bilaterally agreed) and shall be fairly carried out . This definitely implied that during the lifetime of Chan Chun Ting, if he wanted to appoint another abbot, the Tos must be informed and consulted, and the appointment could only be done by mutual agreement. On the other hand the Tos could not unilaterally appoint another abbot in Chan s place without his consent either. That is why it was said therein The To Clan shall R"}9e y testamentary devolution. The necessary implication was that the appointment of abbot was a matter for the Tos (and that was exactly why Chan was appointed by the Sung Tip, albeit it was for valuable consideration). Once the Tos had appointed Chan, they agreed (of course again for valuable consideration) they could not change the abbot in lieu of Chan (i.e. in his lifetime) without his consent. They could not blackmail Chan under the pretext of changing the abbot (which right had already been granted to Chan for life) or otherwise. 7.17 On the other hand, Chan s right to the properties of Tsing Wan Kun and Pui To Tsz was only limited to those rights as specified within the four corners of this document. His right was limited to the receipt of profits or produce and management of those properties and there was no absolute ownership of the property passed to him. 7.18 Chan, however, could refurbish the property and would be responsible for the collection of the rent and the payment of the Crown rent. The obligation for the payment of Crown rent was important as To Tong Hing, being a registered manager would be personally liable for the Crown rent and such burden was there and then passed to Chan Chun Ting. It should also be noted that Chan must be thinking of refurbishing the temple (it was before and after the Sung Tip that Chan began to buy properties in the vicinity of Tsing Wan Kun which became the Tsing Shan Monastery later and this will be discussed in the chapter concerning Tsing Shan Monastery). 7.19 The absence of Tang Yun being the other manager of Tsing Wan Kun in this instrument is also very significant. The fact that he was not a party to the Sung Tip supported the inference that he, or his Clan, the Tang Clan, did not in fact have any beneficial ownership in Tsing Wan Kun or Pui To Tsz. Chan, being a businessman and involved in land acquisition by engineering the operation of putting up land for auction by the Government, must have been aware of the fact that Tang was the other registered manager of Tsing Wan Kun. He did not require Tang to sign this document is clearly an inference that neither Chan on one part, nor the four Tos representing Tsing Wan Kun, Pui Tsz and To Tso on the other part, considered Tang had any beneficial ownership in Tsing Wan Kun. (The role of Tang Po Yun and To Tong Hing will be discussed later in the next chapter.) 7.20 The suggestion that $360, being a large sum of money in those days, should give rise to an inference that what was in fact intended was an acquisition of the absolute interest of the Tos in Tsing Wan Kun is not justified. While the costs of land might well be relatively inexpensive in those days, it must be noted that in 1910, the house and the stable illegally erected at Lots 417 and 418 were valued at $1,000 by the Government. The land of Tsing Wan Kun with erected structure on House Lots 1, 2 and 3 must be worth much more than that. Further, as chu chi, Chan Chun Ting would have the benefit of receiving the oil and incense money S]y) discussed later.) 7.21 From the totality of this document and bearing in mind : (a) the literal wordings used, (b) the purpose of this document, and (c) in order to avoid any manifest absurdity (i.e. the three cardinal rules of construction), one would come to the following irresistible inferences and conclusions, namely :- 1. The Tos owned the two temples (Pui To Tsz and Tsing Wan Kun). 2. Chan Chun Ting was appointed the abbot by paying $360. 3. He was given a life interest as an abbot with a right to manage the temples and receive produce from the fields belonging to the temple. This also implied that both parties were aware that there were fields belonging to the temple as supported by various Block Crown Leases granted earlier, making a total of 28 Lots, the subject matter of the action herein. As the abbot he was also entitled to receive donations such as oil and incence money. 4. The Tos could not change the abbot whilst Chan Chun Ting was the abbot whereas Chan Chun Ting could not appoint another abbot in his place whether inter vivo or by testamentary devolution without the consent of the Tos. 7.22 Before I end this Chapter, I think it is appropriate to consider here three chops of Tsing Wan Kun which had been used before and after the Sung Tip and the inference that one could draw therefrom. The Three Chops of Tsing Wan Kun 7.23 From the evidence in this case, it was revealed that Tsing Wan Kun had three chops or three chops had been used in the past in respect of Tsing Wan Kun. The first one (in rectangular form) appeared twice in the Grain Book of To Tong Hing (Appendix 9 and at 1D 98 and 126). The Grain Book has been kept by descendants of To Tong Hing, which is in quite torn condition for the first few pages. That were the years 1908 and 1911 respectively (i.e. before Sung Tip). This chop was used as a record containing receipts of grains from Tai Lang Shui, Siu Lang Shui and Yeung Siu Hang, (i.e. lands previously set aside for Tsing Wan Kun) apparently for To Tong Hing s own record, i.e. YNoSt^) 1. The 9th day of the 12th Moon of 1914 (23 January 1915) at 1D 142, i.e. immediately after Sung Tip. 2. The 23rd day of the 7th Moon of 1915 at 1D-142A.6 3. The 17th day of the 8th Moon (i.e. 14 September) in 1916 at 1D-143. 4. The 15th day of the 8th Moon in 1917 at 1D-144. 5. The 11th day of the 11th Moon in the year 1919 at 1D 146. 6. The 15th day of the 10th Moon in the Year of Bing Chinese calendar year on the date equivalent to 23 January 1915 at 1D 142 (i.e. shortly after the Sung Tip). In other words, Abbot Chan Chun Ting was first mentioned in the third chop as he had derived this title by the appointment of the To Clan by reason of Sung Tip. The third chop then appeared in all subsequent receipts except the one at p.145 i.e. December 1917. However the best original photographic reproduction copy on this receipt in Exh.P 21 is only the central portion of the original. One cannot ascertain whether the other parts of the original bore the third chop. On the other hand the second oval chop was missing in the receipt at p.144 i.e. 15th Day of the 8th Moon in 1917, which reappeared for the last time at p.145 i.e. December 1917. Both, however, could be explained by the suggestion that either one of the two chops was not readily available at hand at the time of making out the receipt. In any event, the second oval chop was no longer in use at pp.146 and 146A i.e. in the years 1919 and 1926. Probably it ceased to be in use by 1918/19 when Chan s abbotship was widely recognised by then. 7.27 Further, one would notice from the third chop that only Tang Yun was mentioned as a manager and not To Tong Hing. As pointed out earlier Chan could not be unaware of Tang Po Yun s existence and the fact that he was the other manager as his name was used together side by side with Chan s own name. To Tong Hing was mentioned in the Sung Tip as the manager. He was not mentioned in the third kt^6e Book for the entries in 1908 and 1911. For the same reason, for that period of time Chan Chun Ting could not be involved as a chu chi receiving rental before the Sung Tip was signed. 7.28 The adoption and use of the third chop by both Tang Yun as manager and Chan Chun Ting as chu-chi to acknowledge the receipt of rent since the Sung Tip (and not before) further supported the more probable inference that Tang Yun was indeed only employed to manage and take care of the property on site. That was why he and Chan Chun Ting were there at the temple to receive rent from the tenants. Since the tenants knew Tang Po Yun all along and used in the past to deal with him, it made sense to mention him in the chop as the manager (in line with the District Office record) and at the same time acknowledge Chan s new abbotship. Further, from the wordings of the third chop, Chan was well aware of the distinction between being the chu chi of Tsing Wan Kun and being the manager thereof. What he obtained or, to be exact, purchased from To Tong Hing and the To Clan was the right to be chu chi and he certainly did not become a manager of Tsing Wan Kun. This should also be contrasted with Chan s later conduct in purchasing land in the name of Tsing Shan Monastery or Tsing Shan Tsz and made himself a manger. He could not be said to be unaware or ignorant of the position of a manager under the British administration since 1898. 7.29 This would also be in line with the Chinese customary tradition of a clan temple where the clan (the manager or the one in charge) would appoint the chu chi to take care of the religious aspect of the temple. Nevertheless, the property of the temple would still be vested in the clan, i.e. in the hands of the manager for the clan. 7.30 It is convenient to point out here that actually a fourth chop was used in two more recent rental receipts issued by Tsing Shan Monastery in 1955 and 1963 (at 1D 147 and 148). These two receipts (see also Appendix 10) were issued to Xm`) of the To Clan (i.e. To Tso) was the owner of Tsing Kun. Chan Chun Ting was only granted a life interest as the Abbot thereof for valuable consideration. Thus the appointment of the next Abbot for Tsing Kun after Chan would be a matter for the Plaintiffs in 1932. 7.32 It is therefore convenient to end this chapter concerning Sung Tip here and to begin the next chapter for the earlier period between 1898 to 1925 in respect of the registration record in the District Office of Tsing Wan Kun under the Block Crown Lease and the New Grants for the establishment of Tsing Shan Tsz by Chan Chun Ting. In the same context, the positions of To Tong Hing and Tang Po Yun would also be considered in more detail in light of the District Office record. Chapter 8 The Block Crown Lease for Tsing Wan Kun With Tang Po Yun and To Tong Hing as Managers 8.1 The Plaintiffs case as pleaded is that the Plaintiffs had established (and hence owned) the institution of land holding by the name of Tsing Wan Kun (a family temple practising Taoism) which in turn held the land. Thus the finding by the land surveyor or demarcators employed by the British administration in the Indian Survey and the subsequent registration of the land in the name of Tsing Wan Kun in the Block Crown Leases were entirely consistent with the Plaintiffs case. It should be noted that the Plaintiffs case was not that on or before 1 July 1898, the Tso was registered as the owner with the Chinese Authority of those pieces of land which were gr Exp-679) and the case of Yang v. Chang reported by Alabaster, which arose out of the dispute on who should be considered as Patron which in turn carried the right to appoint the abbot). Such practice is also supported by Dr Kenneth K.S. Chen, on Buddhism in China at p.272 in respect of merit cloisters . He said With the merit cloister the family said that its property was donated to the temple, but the merit cloister itself was regarded by the family as a sort of private institution, so that what was regarded as temple land in the eyes of the public and government was still the private property of the family. In such merit cloisters the administrator of the temple property would be appointed by the donor family, and could be removed by the latter at will. This naturally made the temple administrators subservient to the donors, ready to comply with their wishes. The merit cloister thus served not only as an institution through which the rich could avoid paying taxes on their land, but also as a medium for private investments to accumulate gains with which to acquire more land. 8.3 There was also evidence that Tsing Wan Kun had a chu chi in 1843 as evidenced by the inscription on the Memorial Stone. However the characters after the inscription the Chu Chi of Tsing Wan Kun about 1918, then it is inconceivable how Chan Chun Ting s development and establishment of Tsing Shan Tsz was done by ousting Madam Wong. If Madam Wong was residing at Tsing Wan Kun first, and her personal faith was Buddhism instead of Taoism, then the inscription would have the effect of recording the event whereby she was ousted by Chan Chun Ting by force or being forced out by Chan Chun Ting. There was no other record that the To family had appointed her as the chu chi of Tsing Wan Kun. As pointed o ter on in the form of Tsing Shan Tsz or Monastery. Thus, it put this only evidence that Madam Wong was appointed by the To s family as a Buddhist nun at Tsing Wan Kun in grave doubt. 8.6 In any event, if Madam Wong was residing at Tsing Wan Kun at the time Chan Chun Ting entered into the scene, Chan had paid $360 in order to secure his abbotship and right to manage Tsing Wan Kun. If Madam Wong had been forced out by Chan Chun Ting, it was only part of the truth. Land holding position between 1900 and 1914 8.7 On 19 February 1900, the Acting Colonial Secretary, Mr F.H. May laid before the Legislative Council a report prepared by Mr Steward Lockhart, Colonial Secretary, prepared at the direction of the then Governor, Sir Henry A. Blake. This is commonly called the Lockhart Report. This was reported in the Supplement to the Hong Kong Government Gazette No.26 of 28th April 1900. This is a very extensive report concerning land holding in the New Territories. Insofar as relevant to the case before me, the following sections were reproduced in Appendix 11 herein, namely, page xvi at 1D-65(16) to 65(19), which concerned with the following matters, namely : i) Chinese law regarding land; ii) Chinese title deeds; iii) varieties of tenure; iv) ancestral land; v) temple land; and vi) landlords and tenants; and others. 8.8 In the Lockhart Report, under temple land , he said 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. Some of those who originally subscribed towards the erection of the temple or their descendants act as trustees and keep the rent roll and an account of current expenses. Certain land in Kam T in and Tsiu K ng is devoted to the support of a few nuns. The rent roll is kept by a trustee, the rent in grain being handed over to the nuns, who, in order to increase their meagre income, also go from village to village begging for alms from the inhabitants. 8.9 From the evidence adduced in this Court in respect of Chinese customary law, temple could be under four types of ownership, namely :- 1. ownership by all people of that faith in the case of a large public monastery containing large number of monks; 2. hereditary private temple owned by the body of clergy residing and forming a pseudo family there; 3. temples in private ownership, being owned by individual or clan, family, lineage or t ong; 4. temple without resident clergy established for the benefits of the inhabitants of a geographical area and owned by residents of that area. Both Professor Dicks and Professor Baker have given evidence to the aforesaid effects. 8.10 The size and history of Tsing Wan Kun would make it quite impossible to be a public monastery in the public ownership under category 1. The evidence of the Tos use and control of the Kun would also negative the suggestion that the Kun was this type of institution. It was never recorded that there was such a kind of big Taoist temple. This Tsing Wan Kun was not le could not be used for any other purposes other than those which were charitable. As the 2nd Defendant was not relying on anything other than religious being the charitable purposes, the 2nd Defendant could only succeed if it was proved that by customary law, the property could not be used for any other purpose which was not religious purpose. 8.12 Heed must be taken that there is a difference between :- a. Chinese law and custom or customary law on one hand, and b. religious doctrine on the other. A limitation by reason of the religious doctrine of a particular religion on the behaviour of people of that faith does not mean that the follower could not, in breach of his faith, act contrary to the religious doctrine. 8.13 Much of the evidence called by the 2nd Defendant on the issue of the Forest of Ten Directions alled to give evidence on customary law had been asked to give any evidence on this matter. In any event, no one has suggested that even if Chan Chun Ting had run Tsing Wan Kun as a Forest of Ten Directions (and thereby somehow converted the character of Tsing Wan Kun into a public charitable t ong), it could not be changed back to a temple privately owned by a clan called Tsz Shuen Chung Lam P[k[ P[k[ amily or clan for the purposes of s.13 of NTO. Even for the property held by tso or t ong, if all the members of the tso or t ong had agreed on any change of the terms in which the property was to be held, the property might be dealt with in accordance with the agreement even though it might lead to a termination of the tso or t ong. See the case of Tang Yau Kung Tong and the case of Kan Yin Tat (supra). In this way the family of clergy could agree on the change of the use of the property of the temple so that the property of the temple could not be used exclusively for religious purposes. The unchallenged evidence from the 1st Defendant was that the property of a hereditary temple might be sold by its owners. If this is so, the claim that the property of Tsing Wan Kun was held on religious trust or t ong would fail even if Tsing Wan Kun was held or owned by the body of clergy residing there. 8.15 If Tsing Wan Kun was owned by private individuals or family, clan, tso or t ong (i.e. the third type of ownership), then obviously it could not be charitable. Also Tsing Wan Kun cannot be of communal ownership as in the fourth type of ownership referred to hereinbefore. The Memorial Stone of 1843 plainly recorded that it had a resident clergy in charge albeit his name was rubbed off. Although the evidence which suggested that the Tos did employ Madam Wong to be the resident clergy at Tsing Wan Kun in late Tsing time, is weak as aforesaid, Chan Chun Ting was obviously appointed by the To Clan by virtue of the Sung Tip. It is plain from the expert evidence of Professor Baker that this type of communal ownership was only applicable to cases where there was no resident clergy. 8.16 Secondly, there was no evidence to suggest that Tsing Wan Kun was built or established by general contribution from a certain geographical area or used by residents of certain areas as their temple. The evidence was that only the Tos used the Kun for their clan s rites of lantern lighting. There was no evidence that residents of any villages in the locality used Tsing Wan Kun for their religious or family rites. The fact that Tsing Wan Kun had visitors from time to time and had donors like Tam Sum Yek who donated the bell in 1842 does not indicate that Tsing Wan Kun was in communal ownership. Tam was said to be from Nam Hoi which was far from the locality. The inscription on the bell was clear that Tam was repaying to the gods for their blessing which he considered he had received. There was also no suggestion that Tsing Wan Kun was ever used for any village communal purposes. 8.17 Thirdly, the properties held by Tsing Wan Kun scattered around a large area. Where a temple was set up by those community as a communal temple, it is difficult to see why it should be endowed with more property than was required for its upkeep. Furthermore, one should not expect that this kind of temple to be holding properties situated far away from its own locality. 8.18 From a list of the record of the donation on the Memorial Stone in 1843, it would be reasonable to infer that probably by 1898, Tsing Wan Kun should have land at Tai Lang Shui, Siu Lang Shui or Lang Shui Tsai and Yeung Siu Hang. This would appear to coincide with the location of various lots of land registered by the Block Crown Lease though it could not be proved conclusively in view of the lack of any details or reference map in the stone recording the donation. For example, those lots at DD138 reflected the land at Tai Lang Shui and Siu Lang Shui. Lots 261, 277 and 279 in DD131 was at Yeung Siu Hang. 8.19 To Tong Hing s Grain Book contained entries indicating that receipts of rent or grain was in relation to fields at Tai Lang Shui, Siu Lang Shui or Lang Shui Tsai and Yeung Siu Hang. Again, there was no detailed description of the fields so as to match conclusively with the lots registered under the Block Crown Lease. At least these entries would be consistent with To Tong Hing actually managing the rental affairs of Tsing Wan Kun. This was further supported by the fact that there was a chop of Tsing Wan Kun in his Grain Book indicating at least that the entries on those pages would relate to rental income of Tsing Wan Kun. The chop at 1D 98 should cover the entries for the whole year of 1908 on pp.98 101. This was in respect of the rent received by Tsing Wan Kun. No one has ever suggested that this Grain Book is a complete record of all rental receipts by To Tong Hing for Tsing Wan Kun. Thus it is difficult to decide why record of rental receipt of other years could not be f y?|) ng Hing as a manager 8.20 In Tsing time there was no requirement for any formal appointment of any manager for this kind of land holding institutions, although as a matter of practicality, there must be someone who took care of the management of the properties. This is supported by the Lockhart Report. Thus by reason of other matters said previously, it is not improbable that initially the surveyors concerned would simply treat Tang Po Yun as the manager of Tsing Wan Kun because he was hired to be the caretaker or to assist in the management of the land on site. Once he was recorded as manager of the Tsing Wan Kun, it would be natural to enter him as a manager of the other fields of Tsing Wan Kun because the tenants cultivating the fields would have told the surveyors that they rented the field from Tsing Wan Kun. Hence it would not be necessary that Tang Po Yun was physically present to make his claim on the ground of those field at the time of the survey. Tang might not be fraudulent in making his claim because in Tsing time, the office of manager was an informal one and there was no special legislative provision giving a formal recognition of the post with absolute power to deal with the land to the exclusion of any other members of the tso or t ong concerned. He was not like a trustee in English law sense or a manager under our NTO. He was also described as a trustee of Pui To Tsz and had given his address at Sun Uk Village ( eK\Qg) isaging that there would be amendments necessitating the drawing up of substituted schedules and supplemental schedules in future. Although To Tong Hing did not appear as a manager in those original schedules dated 27 June 1907 for DD131, there was a supplementary schedule to include Lot 416 in favour of Tsing Wan Kun with both To Tong Hing and Tang Po Yun as trustees or managers (see 1D 83). This supplementary schedule was not dated but it must have been signed by the Governor Lugard after his appointment on 29 July 1907. (The sequence of the Block Crown Lease in respect of Lot 416 and the new Grant of Lots 417 and 418 will be considered in the next Chapter.) However, the effect of the supplementary schedule was not that Lot 416 was granted as of the date when the supplementary schedule was signed. The term of the Block Crown Lease made it clear that the term granted would commence on 1 July 1898 as in the case of any other lots in any of the schedules. The fact that the grant of Lot 416 took the form of a Supplementary Schedule instead of a New Grant would clearly indicate that the Government was satisfied that it should have been included in the first place in the schedule to the Block Crown Lease. Thus it was a grant in pursuance of the recognition of land holding before the British took over the New Territories. 8.22 Further, the registration of To Tong Hing as a co manager for Lot 416 in the name of Tsing Wan Kun in these circumstances would indicate that the Government must have approved the appoi gYNI t have been approved as a co manager for all the lands of Tsing Wan Kun. 8.23 In any event, the fact of To Tong Hing s appointment was well evidenced by the A Rent Roll dated 1911 (i.e. Exh.P14) which stated that both he and Tang Po Yun were the managers of all the lots of Tsing Wan Kun specified thereunder and not just for Lot 416. This certificate was dated back to 1911 and was retained by the Tso and produced by the Treasurer of the Tso in March 1997 (the first trial), To Shui Tai ( n any event as there was not one for Tang Po Yun either. At least To Tong Hing was recognized and approved, albeit later, and that he was also a co trustee/manager with Tang Po Yun. It is also evidence of the fact that he should be a manager too at the outset. This backdating was because of the backdating effect of the Block Crown Lease and the supplementary schedule thereto. 8.24 The 2nd Defendant of course relied on the printed statement on the A Rent Roll Certificate that it was not a title deed as stated clearly therein. The document was obviously not a title deed or title document. It was not a conveyancing document granting any estate in land and there was no registered title in Hong Kong and hence the document could not be a land title certificate. But the purpose of the certificate was plain and obvious that it was to certify for the owner that he had the property therein specified so that he could know what property he had. That was also the evidence that in 1905 to 1911 such A Rent Roll Certificate was only issued to the owner according to Mr Gregory Lee called by the 2nd Defendant (see 9 July-14I & O). Further, the assignment on 20 January 1914 of Lot 1297 in DD132 (see 2D 559) in pursuance of the Order of the Court would also show rather conclusively that To Tong Hing must have been appointed and approved as manager of all the lots of Tsing Wan Kun including those lots which appeared in the Schedules to the Block Crown Lease as having Tang Po Yun as the only trustee stated therein. In the Schedule to the Block Crown Lease for DD132, Lot 1297, it was in the name of Tsing Wan Kun with only Tang Po Yun stated as the trustee (see 1D 82A). Yet in the Memorial of the Assignment in pursuance of the Court s Order, the transferor was stated to be Tsing Wan Kun with Tang Po Yun and To Tong Hing as trustees. The District Office would not have accepted his signature if he was not a trustee thereof according to the Schedule. The only irresistible inference to be drawn was that by January 1914 he had already been accepted by the District Office that he was one of the two managers from Day 1. Tang Po Yun 8.25 It has already been considered earlier that for reasons stated, Tang Po Yun could well be a caretaker only. Other than being registered as a manger and other than having his name appearing on the third Tsing Wan Kun rectangular chop, there was nothing to suggest any other role was played by him in relation to Tsing Wan Kun. There was no evidence of any involvement of members of the Tang Clan (from SQg) d the Tos only) made a protest and demanded that To Fook Yu and To Gun Yung be appointed managers. There was no suggestion of any Tang having any interest there and then. The matter was widely reported in the press. There was no reason for the Tangs not to be aware of it. 8.27 It was only much later, in 1985, when the Tos application for appointment of managers had not received the favourable approval of the District Officer, Tang Hung s name began to appear in the letters sent to the Government making claims that the land should be managed by the Tos and Tangs. This letter was dated 1 April 1985 (see 4D 1070). 8.28 Thereafter, there were also a few letters when the interests of Tangs were mentioned one dated 23 August 1985 and one sent in 1989. I accept the Plaintiffs submissions that it was plain that the Tos would consider that their claim would be strengthened by inviting Tang Hung to join in because Tang Po Yun had been a manager and that it was thought that because Tang Yun was a ma e@b g Ogq,gQgKN ot in these proceedings laid any claim to Tsing Wan Kun and no one was running a case to say that the Tang Clan has had an interest in Tsing Wan Kun. Both the To Clan and the Tang Clan were specifically invited by the 2nd Defendant to participate in these proceedings. In response, the Tos came forward and applied to be joined in both sets of Miscellaneous Proceedings as aforesaid. 8.30 In this limited respect, the relative concept of property ownership as stated in Megarry s Law of Real Property is relevant. In the absence of any cogent evidence of any interest of the Tang Clan who made no claim in these proceedings, the Court should ignore any possible claim they may have. Accordingly, this Court need not consider whether the Plaintiffs are only entitled to a grant of a declaration in such suitable wordings as would reflect the finding of the Court to a limited extent only. 8.31 In conclusion to this chapter, it is my finding that according to the Block Crown Lease, To Tong Hing was a manager together with Tang Po Yun under the Block Crown Lease to Tsing Wan Kun in respect of a number of properties registered in its name. It is more probable and Tang Yun was only employed by the Tos as a sort of caretaker for Tsing Wan Kun. After the consideration of the changes in light of the Block Crown Lease in the period between 1900 to 1914, it is convenient at this point to consider Chan Chun Ting s activities as revealed by the New Grant in his purchase of various lots of land for the erection of various buil e detail in this chapter. Counsel for the Plaintiffs has prepared The Lot History of Land Connected with Tsing Shan Monastery in their Third Addendum to the Plaintiffs final submissions. It is enclosed in Appendix 12 for easy reference. Chan Chun Ting s activities before Sung Tip 9.2 It can be seen from p.3 of Appendix 12 thereof that Chan Chun Ting started to be involved in purchasing properties in or about August 1909. That was in respect of DD131, Lot No.410. According to the old Land Officer file record searched by Solicitors for the Plaintiffs from the Government Records Service in the course of the trial, it revealed that Chan Chun Ting applied to have this piece of land to be sold by public auction in August 1909. The area was described as 150 , i.e. 67,500 sq.ft. or 655 acres. It was agricultural land for cultivation. The premium recommended was $169 and the annual Crown Rent recommended was $1.55. The special conditions stipulated that, inter alia, no building was to be erected on the Lot. Chan Chun Ting was described as the applicant of Tin Hau Temple, Ching Shan at Castle Peak . There is no evidence to support that Chan was residing at the Ching (or Tsing) Shan Tin Hau Temple at that time. One can only gather from the Sung Tip which says that Chan Chun Ting is a person of upright and benevolent character hat he was told by Chan that Chan did not want so much of the land but only 5,000 sq.ft. He pointed out the area to the bailiff which was different from the original lot, i.e. the new area required by Chan fell entirely outside that shown on the original plan . The Assistant Land Officer said there was some mystery about the whole matter. It was recorded that the applicant s plan was to buy this land from government and resell it as a site for a house and garden to a rich female relative and that she ha \QW] fung shui made particular enquiries as to whether the lot was put up as a building lot : if so, they were prepared to bid against the applicant. That was 18 October 1909. Eventually, it was recommended that Chan be paid back the deposit less $10 for printing and clerical expenses. This was done accordingly. 9.4 Thus according to this public record, Chan was in the business of buying and selling land at that time instead of intending to set up a monastery himself. 9.5 The next application for public auction was made by Chan in respect of Lot 417 and 418 in October 1910. They were building lots. Although Chan Chun Ting was described as of Castle Peak in the application, he gave his address at the time of purchase as No.34 Temple Street, Yau Ma Tei. In the CSO record, his name was typed as Chan Cheung Tong . We do not know whether this is a typing mistake for Chan Chun Ting , or as suggested by Counsel for the Plaintiffs that since Chan was working with Cheung Shun Pak, he probably intended to form a t ong together with Cheung. Be that as it may, his personal name Chan Chun Ting was eventually registered in the Land Office for these two lots of land. He signed his Chinese name on the Memorandum of Agreement by the Purchaser . 9.6 Before the sale, the ADO, Mr A.E. Wood, had this entry in the file Land Officer, this is an encroachment on Crown Land by the Castle Peak Temple. The buildings consist of a house and stable of which the estimated value is $1,000.00. Sd. A.E. Wood ADO/S 5.10.10 (See Book 19, p.49) 9.7 As can be seen from the map at Appendix 2, Lots 417 and 418 are within 416. These lot numbers were marked by demarcators during the Indian Survey according to natural boundaries and claims of owners. 417 and 418 must have a natural boundary so that they were not included in 416 which was the garden land of Tsing Wan Kun surrounding the three House Lots 1, 2 and 3. Whilst all land registered in the name of Tsing Wan Kun were by way of Block Crown Lease in 1905, evidencing that it was a grant from the Crown to indigenous owners, all lots purchased by Chan Chun Ting after the time of the Block Crown Lease were New Grant. They are nowadays called by an odd name Old New Grant . The first word of course is descriptive whereas the second word is just generic. It is therefore necessary to consider in some detail as to the sequence of land grant of Lots 416, 417 and 418 in order to unravel the mystery as to why Chan Chun Ting could have bought two lots of land within 416, i.e. 417 and 418 which Mr Wood described as a house and a stable which were encroachment by Castle Peak Temple whereby Chan Chun Ting had to paid $1,000 therefor as premium for the buildings standing on the lot in addition to the $14 premium he paid in the usual course of purchasing two building lots. Sequence of land grant of Lots 416, 417 and 418 9.8 As submitted by Mr Fung for the 2nd Defendant, the sequence of events should be that 417 and 418 were sold to Chan Chun Ting by way of New Grant before the Supplementary Schedule to the Block Crown Lease was signed by Governor Lugard (1907 1912) in respect of 416. Apparently Mr Chan for the Plaintiffs eventually agreed to this sequence instead of what he put in his written submission. The sequence is as follows :- i) At the time of the demarcators making the survey, they had already demarcated Lot 416 before 1905 as a lot with natural boundary but was not claimed at that time to be owned by anyone. ii) The only lot which had been granted to anyone within the four corners of Lot 416 in 1907 were House Lots 1, 2 and 3 on which Tsing Wan Kun was situated. iii) The rest of the land within the four corners of Lot 416 other than House Lot 1, 2 and 3 was Crown land. iv) The demarcators had demarcated Lot 416 despite the fact that (other than House Lots 1, 2 and 3) it was Crown land because of the directions of the Land Court The range of a Demarcator s enquiries is limited by the cadastral map. Any land on a cadastral map showing clearly marked boundaries may thus be included in the demarcation register even should an owner be not forthcoming in the first instance. (see Report on the New Territories for the Year 1901, the Hong Kong Government Gazette 2nd May 1902 p.701 Book 18, p.13) It is also in the demarcation rules in Appendix A of the aforesaid 1901 Report that :- 6. Having made his [i.e. demarcator s] entries in the Book, the demarcator is to enquire into the ownership of the next Lot. 9.(i) The demarcator will as a rule be accompanied by three coolies, one carrying bamboos, one with a pickaxe, and a third to assist the Demarcator enquiring into the ownership of the Lots. The coolie with the pickaxe should carry slips of paper with Lot numbers on them and give one to each owner of a Lot. (ii) Every person claiming ownership in any Lot e.g., the perpetual lessee, the mortgagee in possession and the tax payer should have a Lot number ticket given to him. 13. If the Demarcators comes to an area which has been or is under cultivation or which appears to have well marked boundaries but for which he can find no claimant, he can give it a Lot number and make note in the book that no owner has come forward. 20. A Demarcator must post Demarcation notices in every village included in his map. If there are no such villages, then in the two nearest villages. He will report, if these notices are disturbed. In short, it is pursuant to the aforesaid demarcation rules that Lot 416 was delineated but with no claimant coming forward as owner there and then. v) Between 1905 (i.e. after demarcation) and 1910 (i.e. the time of Chan s purchase) a house had been erected on Lot 417 and a stable on Lot 418. This appeared to have been done by way of an extension of Tsing Wan Kun which was referred to in Mr A.E. Wood s note as the Castle Peak Temple . The Crown land referred to in the note must be Lot 416 as demarcated by the demarcators. This English name of Castle Peak Temple was loosely used by Mr Wood denoting the temple at Castle Peak . Everyone agreed that it could not be referring to Tsing Shan Tsz or Tsing Shan Monastery which was not built by 1910 until much later by 1918. vi) When Lots 417 and 418 were granted to Chan Chun Ting in 1910, the same were craved out from the then Crown land demarcated as Lot 416. vii) Lot 416 was subsequently granted to Tsing Wan Kun with Tang Po Yun and To Tong Hing as managers. The Crown must have been satisfied by then, upon the application and claims of Tang Po Yun and To Tong Hing that it was part of the garden of Tsing Wan Kun at the outset and that is exactly why it was not granted by a New Grant. Instead it was augmented by way of a Supplementary Schedule to the original Block Crown Lease which has the effect that it was part of the original Block Crown Lease in that the Grant from the Crown would date back to 1 July 1898. viii) By reason of the aforesaid matters, the date of the granting of Lot 416 to Tsing Wan Kun and the registration of To Tong Hing and Tang Po Yun as managers could not have been made earlier than 1910 when Chan purchased Lot Nos. 417 and 418 or later than 1911 when Governor Lugard ended his Governorship. 9.9 It can be seen from the Lot history of Land Connected with Tsing Shan Monastery (Appendix 12) that Chan Chun Ting bought another piece of land in December 1911, i.e. Lot No.440, which eventually became the kitchen of the Monastery. He was also described as Chan Chun Ting of Tsing Shan Temple, Castle Peak in the Memorandum of Agreement by the purchaser. Again, this must be referring t rchased Lot No.443 of DD131, i.e. a piece of land in the vicinity with an area of 0.18 acre at $20 premium. She purchased it in the name of Tsik (on the face of the file) or Tsing (in the application for a recommendation for sale by public auction) Shing Ton time when she and Chan Chun Ting were actively involved in purchasing land in the vicinity of Tsing Wan Kun and both of them gave their address at Tsing Wan Kun. This probably is the period in which she had a dispute with Chan. However, as aforesaid, we do not know the exact cause for the dispute whereby the two of them could not get along in the same Kun. Apparently Madam Wong was eventually evicted from the Kun. At least she had left there and then. 9.11 The last lot of land he purchased shortly before the Sung Tip was Lot 484 which is the tomb s land nearby. That was 5 March 1914. Here, Chan Chun Ting was described as of Tsing Shan. The class of this lot was agricultural land which was later on used as tomb s land. 9.12 To recapitulate Lot 417 became the Grand Precious Hall ( l 1920. However, one thing happened shortly before the Sung Tip in 1914 and at about the same time when Chan purchased Lot 484 in March 1914 which was eventually used as tomb s land. This is the so called Ross Ruling inscribed on a piece of stone and produced by the 1st Defendant. Ross Ruling 9.13 A copy of the stone rubbing of the Ross Ruling is included in Appendix 13. The original Chinese version of this ruling is as follows eLu0u NI{ N z(Wdk YbeEeU yrdk JT:y NCS]N~v Vt^ ers: I understand that the Tsing Shan Tze in Tuen Mun is a good place for retreat. (In addition,) it is reasonable or proper to preserve relic. Accordingly, I, the District Land Officer, adjudge Chan Chun Ting to be in charge of the above mentioned monastery. From now on, no one is allowed to have any excuses to arouse disturbances here. Whoever intentionally ignore this declaration shall be arrested for trial without mercy. Specially announced Posted in Castle Peak Monastery S.B.C. Ross Announced on the good (1st) day in March of One thousand nine hundred and fourteen years 9.14 Mr Stewart Buckle Carne Ross was appointed by the Governor on 29 November 1912 as the District Officer of Northern District in the New Territories at the annual salary of $3,900 (according to the Hong Kong Blue Book 1915). His Chinese name is now broken into two pieces. Both the 1st and 2nd Defendants relied on this Ross Ruling as proof of absolute title of Chan Chun Ting as the one in charge of the Tsing Wan Kun since Tsing Shan Tsz was not in existence at that time. 9.15 However, the Plaintiffs disputed the authenticity and effect of this Ross Ruling . The Plaintiffs submitted that while it was probable that sometime in [or about] 1914 Chan went to [or was in] the location of Tsing Wan Kun wanting to drive Madam Wong ( re probable) that Chan had turned to the Tos and with the inducement of the payment in the sum of $360, managed to obtain the right to be the chu chi of Tsing Wan Kun by the Sung Tip and thereby Wong would have to leave. 9.16 I agree with the submissions of Counsel for the Plaintiffs that the authenticity of this Ruling should be in doubt and in all probabilities this was made up by someone later on (i.e. it was not a Ruling of the District Officer Mr Ross) for the following reasons, namely :- 1. There was absolutely no record of this Ruling anywhere in the Government files, there was not even anything said in any file which would throw light on the possible background of this Ruling. Under s.12 of the New Territories Land Ordinance 1905, any Ruling must be registered with the District Office. 2. There was no reference to this Ruling or the background of the dispute anywhere in the administration reports of the New Territories for the years 1913 and 1914 (produced at 7D 54) even though this kind of report contained details of very trivial matters including disputes on Fung Shui matters (see 7D 80). 3. Section 6 of the NTLO 1905 provided for the jurisdiction of the Land Court. It is not clear under what jurisdiction was exercised purportedly by Mr Ross in making this Ruling. The Ruling acknowledged in effect Tsing Wan Kun was a good place for retreat and relics had to be preserved which was not within the jurisdiction of the Land Court. 4. At the most by this Ruling, the Abbotship of Chan Chun Ting was recognized and he was considered or adjudged to be the proper chu chi (Abbot) of Tsing Wan Kun. It did not in effect touch on any dispute or declaration concerning land ownership nor even managership. There was no justification to make a Ruling if it was a dispute between Chan Chun Ting and Madam Wong ( nstead, it was in peremptory imperial language according to the expert opinion of Professor Dicks (see 20 May-36M). It was unheard of or at least unusual for Government departments to direct a Ruling to be inscribed in stone forming a stone tablet . It is therefore unlikely that there would be a direction that the Ruling should be posted at Tsing Shan Temple, i.e. Tsing Wan Kun at that time and nowhere else. On the face of the Ruling, it amounted to an announcement to the public and so in the ordinary course of event, if this was a genuine ruling, the same should be published in the Gazette. 6. If there should be any dispute between the Chan and the Tos or anyone else, it is likely to be just on the right to appoint chu chi and to manage the properties of Tsing Wan Kun. There would be no question of protection or mainten g 'Y A an had any dispute with anyone. If the stone was in existence and was placed at the Honorific Arch or the entrance gate house or any other conspicuous place as it should be, it surely would not escape the attention and the curiosity of Lam. Likewise, there was no mention of this stone in the work of Professor : The Three Ancient Temples in Hong Kong published in 1977, well before his involvement in this case as an expert witness. There was no evidence as to when the Ruling was erected at the entrance important title document. 9.17 This Ruling was referred to by Tat On in his letter to the District Office claiming his entitlement in 1963. If the Ruling was made to resolve a dispute between the Tos and Chan Chun Ting, and the decision was only to the effect that Chan should be the chu chi and be in charge of the place. If that could be extended to mean that Chan was adjudged to be the absolute owner thereof, then there was no reason why Chan did not ask for the removal of To Tong Hing as manager of Tsing Wan Kun and there was no reason for Mr Ross not to remove To Tong Hing or not to appoint Chan Chun Ting as manager, unless, of course, Tsing Wan Kun as a land holding institution belongs to the Tos. If Chan Chun Ting by this Ruling already gained recognition from the District Officer that he was the proper chu chi of Tsing Wan Kun, there would be no reason for Chan to pay $360 for the privilege granted by the Tos in terms of the Sung Tip. 9.18 The contention in the Ruling that this place is a good pla t is probable that this Ruling was made up to warn visitors to behave. This would probably come at a time after Lam s visit to the place and at that time when the established Tsing Shan Monastery had become a popular tourist spot. But this was backdated to Mr Ross time in 1914. 9.19 All in all, this Ross Ruling could not be accepted as a genuine document and no weight should be attached to it in deciding the title of the Plaintiffs and the 1st Defendant. Chan s activities after Sung Tip 9.20 and Cheung Sum Chuen purchased one lot in January 1924. 9.22 It was not until August 1925 that Chan Chun Ting began to purchase property and register the same in the name of Tsing Shan Monastery with he himself acting as trustee. This was DD131 Lot 718 which later on became the Hall of the Law ( f Chan Chun Ting and the other registered in the name of Tsing Shan Tsz with Chan Chun Ting as the trustee or manager? This will be considered later on but before we consider this question, we shall, at this stage, consider how did Chan Chun Ting run Tsing Wan Kun and Tsing Shan Tsz. In particular, whether Tsing Wan Kun and/or Tsing Shan Tsz was a Forest of Ten Directions or Sap Fong Chung Lam ( AS P[k[ !q|_!qdk !q;N!q ts^I{ 0vQ-N >wwQ TBfqQ yKN0u v!qn 0 0 me together in the cultivation of their faith, whereas dharma, or the law would buttress the interaction of their studies of the sutras. Wherever offerings are made, there is no distinction between you and me, no differentiation between hosts and guests, monks are all equal whether they are office bearers or not, since they are all there to promote the dharma. Therewithin, the means of provisions are communal to those from all ten directions, be him a holy monk or not. And when the bell is sounded and service begins, all monks assemble, taking them all at the same time, functioning as the land cultivating good fortune for the donors. For those who stand by dharma in time, they will be unshackled, so it s always good to broaden one s vision, ridding oneself of shallowness of mind and place no undue attachment to personal possessions of this life in order to upkeep dharma. From it, we can see that any establishment that is called Si implies that it belongs to the public from the ten directions. Later, what P[k[ SAS) ver or infinity. 10.3 It should be noted here the context of how this concept of Ten Directions Monastery was raised. Basically it was the 2nd Defendant s contention that Tsing Wan Kun and Tsing Shan Monastery were together run as a Ten Directions Monastery by Chan Chun Ting and therefore both the Kun and the Monastery have been subject to a religious/charitable t ong/trust. On the other hand, the 1st Defendant contended that the monastery was and has always been a private monastery under the category P[k[ he Tsing Shan Monastery. Then we have to consider whether Tsing Shan Monastery is a Ten Directions Monastery or in what way this concept of Ten Directions Monastery would have affected the proprietary right of Tsing Wan Kun and/or Tsing Shan Monastery, each by itself and the two together. 10.5 I am also conscious that this trial is the first part of the dispute among the three parties. After considering the Plaintiffs entitlement to Tsing Wan Kun as they claimed they have, and the 1st Defendant s entitlement to both Tsing Wan Kun and/or Tsing Shan Monastery as he claimed, there will be the subsequent consideration of the Scheme of Trust or Arrangement of Tsing Shan Monastery in the second stage of the trial in the application by the 3rd Defendant. Thus nothing should be decided or said in this judgment which otherwise would affect the consideration of the Scheme of Arrangement. But my finding of facts in resolving the dispute among these three parties would form the basis for the Scheme of Arrangement one way or the other. With that limitation and caveat in mind, I shall start with the position of Tsing Wan Kun in this respect. Tsing Wan Kun a Ten Directions Monastery? 10.6 In this respect, I accept the expert evidence of both Dr Tim and Dr Zheng Qin. Dr Lai said in his report as follows 1\/f g yE\0RR [vu\OHQ)YS cKNw N(W1 N(W1 N6q|~ a/f(W1 vQ!k q\og!n OIY^y[O 0 N(WvuBf vHQ)YS eW[,g /f&T N/f[OYe l+^;N [OYeR }X[(W og!n (u\O< SvQ'` S(W[OYe 4X 0 HQ)YS e was still carrying on with the office as the person charge of Tsing Wan Kun. In other words, the time he started taking up this office should be sometime before 1914. Secondly, in Sung Tip it says To Tong Hing and others agree to the grant of Pui To Monastery and Tsing Wan Temple in Tsing Shan (Castle Peak) to Chan Chun Ting who shall have charge thereof and maintain the worship with offerings to the Buddha and the Gods . Even judging from his hereunto unchanged Sin Tin Taoist background and the words of Sung Tip alone, we should question whether the quoted phrase should mean (1) Chan s status was that of a Buddhist monk in charge; (2) that a Buddhist Tsing Shan Monastery was already in existence; (3) that Pui To Monastery and Tsing Wan Kun were part of Tsing Shan Monastery. If the above question is justified and acceptable, it follows that the Sung Tip could not be used to prove Tsing Wan Kun in its nature (according to the understanding of the two parties of the Sung Tip) was embracing the vQ-N vOUL sX[R vX[(W SkjM [(W(W O6q(W kt^|~ [Ye;m xkeQl\ S[OYe [Ye;N5_ _vQ1 Ye;m /f|~ FO/f [OYe N1\R [gQX[(WR sS/f }/fz /fl\ e6^ g V{eu vX[(W b }eQ[OYeR Pq}vu-N ting from 1829 have passed on till today. Even though the Taoist tradition and worshiping at Tsing Wan Kun have survived yet those Buddhists as aforementioned, put forward their own interpretation (such as : Tsing Shan Monastery contains Tsing Wan Kun, i.e. making it a point that Tsing Wan Kun was but part of the bygone history on the one hand, gossipping the story given by Mung Sang, trying to explain it away by saying that the Tao Shi ( the tradition of Buddhist Tsing Shan Monastery as part of the source of the latter s history, as some sort of buffer against the rather incompatible or even clashing religious status of the two. Dr Lai in his further Report pointed out, inter alia, that the presence of the Yin Yang pattern on the wall would only confirm that the Kun is nothing else but a Taoist temple. (See Appendix 1, photo 12) 10.8 Eventually Dr Lai concluded as follows N N N ys~ } plQ>w)R X[(W _N N a/fl\ e[OYeAS ng Wan Kun could not have been a religious temple existing for the interest of the public, nor could it be a Buddhist temple under the system of ten directions monasteries. 10.9 Dr Lai also emphasised the fact that Chan Chun Ting originally belonged to the Sin Tin Tao Sect of Taoism ( HQ)YS vbiN ic generally. 10.10 Further, as pointed out in Chapter 7 under Sung Tip , Chan Chun Ting s proprietary right to Tsing Wan Kun was only limited to a personal life interest in the management and control of the Kun (as a Taoist Abbot) together with the produce from the other properties registered under the Kun. He could not convert that limited right by establishing a Buddhist monastery on its side and running the two together as a Ten Directions Monastery (if he had done so) and thereby acquired absolute pr denced by the photographs in Lam Tai Fui s book) and thus acquired absolute proprietary right therefor. It would be a far fetch argument to suggest that by such acts or breach of trust as entrusted by the To family to him, his proprietorship, managership or trusteeship to Tsing Shan Monastery would be extended to Tsing Wan Kun. 10.11 In short, it is my finding that there is no or no sufficient evidence to suggest that Chan Chun Ting had run the Tsing Wan Kun as part of the Ten Directions Monastery in respect of Tsing Shan Monastery. Even if he had done so (which I found otherwise) Chan Chun Ting had no right to incorporate the Kun into the Monastery established by him. The only logical inference to be drawn would be that Chan Chun Ting, after he was converted and anointed as a Buddhist Abbot of Tsing Shan Monastery established by him, he just kept administering or managing Tsing Wan Kun limited to the daily administrative or managerial matters and not as a Taoist monk or abbot thereof because he was no longer subscribing to such a religious belief. 10.12 All in all, there is no amalgamation or incorporation of the Kun into the Tsz and the proprietary interest of the Kun could not be conveyed in the manner suggested by the 1st and 2nd Defendants to the Monastery itself. Tsing Shan Monastery a Ten Directions Monastery? 10.13 In view of the aforesaid caveat that there is an encumbent Scheme of Arrangement to be considered later, I should restrict myself not to say much here in order not to prejudice the second stage of the trial. From the evidence of Mr Li Kwok Fu, there were a number of indications that Chan Chun Ting, after the establishment of the Tsing Shan Monastery, had been running it as a Ten Directions Monastery. I would not go into detail of these indications since we must consider this aspect in the proper context of the first stage of the trial in the case here. We are only concerned with the proprietary aspect of the Monastery and in particular, the proprietary rights of the 1st Defendant and the 2nd Defendant thereof. 10.14 As aforesaid, Tsing Shan Monastery comprised of two groups of property : a. those acquired in the personal name of Chan Chun Ting and registered as such; and b. those registered under Tsing Shan Monastery with Chan Chun Ting as the trustee or manager thereof. 10.15 As pointed out by Mr Chan for the Plaintiffs that Mr Li was never put forward as an expert in Chinese customary law. Indeed, by his own admission, he said he did not regard himself as an expert in this area. Therefore, Mr Li is not in any position to say whether such practice or phenomenon has any legal basis or justification. In other words he could not say whether Chan Chun Ting s act of running the Monastery as a Ten Directions Monastery would, by Chinese customary law, convert all properties into a communal trust according to the Ten Directions system. However, one thing is sure, as a matter of law, even if there is such a Chinese custom, it cannot cut across the land conveyancing and registration system as introduced by the New Territories Ordinance which was decided in the case of Wu Koon Tai (supra). 10.16 In this judgment, I must restrict myself to consider the proprietary claim of the 1st and 2nd Defendants and should not decide any aspect which would affect the second part of the trial concerning the Scheme of Trust or Arrangement without hearing other parties not appearing in the first part of the trial. I shall therefore consider the 1st Defendant s proprietary claim to the Kun and the Monastery in the next chapter and the 2nd Defendant s claim in the chapter thereafter in the context of the concept of the Ten Directions Monastery. Chapter 11 The 1st Defendant s Case 11.1 According to my findings as aforesaid, there was no merger of Tsing Wan Kun and Tsing Shan Monastery into one entity. Thus the 1st Defendant s case must be considered separately under the two entities. However, the 1st Defendant claimed that the two had become one. In this respect he failed. The 1st Defendant s claim to Tsing Wan Kun 11.2 There was absolutely no evidence that Chan Chun Ting or Ho Ching had ever made any purchase of any of the land of Tsing Wan Kun prior to the Block Crown Lease or after the Block Crown Lease. In fact all the evidence was to the contrary and Chan had never appeared in the scene at all until 1910. Thus the 1st Defendant utterly failed in his claim that the land appearing in the Block Crown Lease as registered in the name of Tsing Wan Kun were prior to 1898 purchased by Chan Chun Ting and/or Ho Ching and the same was beneficially owned by each of them or the two together. 11.3 It goes without saying that the 1st Defendant s alternative claim that the registration under the Block Crown Lease was wrong and s.15 of the New Territories Ordinance does not and should not apply, also failed. 11.4 In so far as the 1st Defendant s claim was based on Tsing Wan Kun being an institution of land holding with members being the pseudo family of monks living in the temple of Tsing Wan Kun, the claim time. 11.5 Furthermore, Tsing Wan Kun could not be owned by the pseudo family of clergy residing there. While it is possible for a temple to be owned by the pseudo family of clergy residing there, Tsing Wan Kun was not such a temple. In the case of such temple owned by the clergy family, one would expect that the chu chi would decide his successor. However, the evidence in this case was that the Tos appointed the chu chi of Tsing Wan Kun as in the Sung Tip. At any rate, if Tsing Wan Kun was owned by a family of clergy residing at the Kun in Tsing time, it would be inconceivable that when the Block Crown Lease was granted after the survey of the land by the British administration, the registered managers were To Tong Hing and Tang Po Yun and not any monks or Taoist priests. 11.6 Furthermore, even if there were a family of clergy living at Tsing Wan Kun when the Block Crown Lease was granted, Chan Chun Ting had never been a member of this family. The clear evidence was that he only became the chu chi by the authority of the Sung Tip in 1914. He never joined the family of clergy there. In fact, if Wong Lin was a member of the family of clergy at Tsing Wan Kun at that time, she was ousted by him. The Sung Tip plainly restricted the power of Chan Chun Ting to nominate successors and therefore, there could not have been any pseudo family of clergy to be set up to own the land in pursuance of the authority of the Sung Tip. 11.7 In respect of the Sung Tip, I have already found that it only conferred a personal right to Chan Chun Ting to be the chu chi and no other beneficial interest in land passed to him. The Sung Tip cannot, in any event, under Hong Kong law, operate as a form of assignment or agreement, as at that time both To Tong Hing and Tang Po Yun were already managers of the land of Tsing Wan Kun. Under s.13 of the New Territories Ordinance 1905 (or s.27 of the New Territories Regulation Ordinance 1910 enforced in 1914), the persons who would have the powers to dispose of any interest of land in Tsing Wan Kun would be the managers with the approval of the Land Officer. This was the only method or procedure for the disposal of landed interest in clan, family of t provided by the law, and this method of disposal must be followed according to the case of Wu Koon Tai v. Wu Yau Loi (supra). 11.8 In so far as the 1st Defendant s claim was made through Tat On, for the aforesaid reasons, Tat On himself never had any beneficial rights to Tsing Wan Kun. Further, Tat s managership was irregularly obtained and would not have the effect of changing the beneficial ownership of Tsing Wan Kun. The irregularity of Tat On s appointment 11.9 On 10 April 1963, Tat On made an application for succession of the estate of Tang Po Yun and also that of To Tong Hing (1D 218 and 220) . The information contained in the application form was blatently false. The date of death of Tang Po Yun was stated to be 5 April 1905 and he was said to have died at Tsing Shan Tsz at the age of 75. (Tang Po Yun s name was used be the grand disciple of Tang Po Yun. He also asserted that Tang Yun had no son surviving him. The village representative who supplied the information of death was one Lau Sing Fui. 11.10 In the case of To Tong Hing, the information on the form was much the same except that the date of death was asserted to be 4 August 1907 which was a date even before the Sung Tip in 1914! Tat On also claimed to be the grand disciple of To Tong Hing and again asserted that To Tong Hing had no son. Both To Tong Hing JSzz) e himself was not amongst the beneficiaries). Notwithstanding that this was only an application for succession of estate, an approval of appointment of manager was given on 22 April 1963. 11.12 On top of the forms, it would appear that Tat On also wrote to the District Office on 10 April 1963. The letter suggested that there was a meeting of Tsing Wan Kun and it was publicly (or commonly) decided that the managership of Tang Po Yun and To Tong Hing should be succeeded by Abbot of Tsing Shan Tsz, i.e. Tat On himself, and application for approval was made. There was also information forms filled in by two persons purportedly from Tsing Shan Tsuen giving the same false information relating to Tang Po Yun and To Tong Hing. 11.13 On the same date of the receipt of the application, a notice was posted inviting those who wanted to oppose to the succession by Tat On of the manager post of Tang Po Yun and To Tong Hing in Tsing Wan Kun to make their opposition within 10 days. The printed version of the form indicated that normally it should be within a month. No reason could be found anywhere why the period of notice was shortened from one month to 10 days. The form also suggested that it was posted at Tuen Mun Committee Office and Tsing Shan Village, but certainly not at a place where the land of Tsing Wan Kun were situated as witnesses from the Plaintiffs have testified that they were not aware of any such notice. The 10 days period expired on Saturday, 20 April 1963 and the approval was at once given on the next working day on Monday, 22 April 1963, apparently without any further investigation or processing. 11.14 In my view, I accept the Plaintiffs submission that the way that the application was handled was irregular. It departed from the common practice as deposed to by Lam Yuet Yau, a witness of the 2nd Defendant. He was working as a Clerical Officer I since 1974 up to his recent retirement in the District Office of Tuen Mun responsible for registration of Tso and T ong property. Apart from the fact that the matter would appear to have been handled with undue haste with no investigation whatsoever upon all these misrepresentations of Tat On, there was certainly no written evidence of the election of Tat On as the new manager other than from Tat s own assertion. 11.15 There was plainly misrepresentation as to the respective dates of death of the existing managers To Tong Hing and Tang Po Yun and more importantly, the relationship between Tat On and the two managers. He claimed to be the grand disciple of these two gentlemen who were not even monks themselves. 11.16 In any event, the District Officer would only have power to approve manager duly elected or appointed by the beneficial owners of the clan, family and t holding the land. I have already found that Tsing Wan Kun was owned by the Tos, then the purported approval by the District Officer of Tat s appointment as manager must be null and void as Tat On was never a manager so elected or appointed by the members of the Tos family. For the aforesaid reason, the 1st Defendant s claim to Tsing Wan Kun utterly failed. The 1st Defendant s claim to Tsing Shan Monastery 11.17 In the case of properties registered in the name of Tsing Shan Monastery or in the personal name of Chan Chun Ting, the 1st Defendant has failed to adduce any evidence that such properties were acquired before 1898. Likewise, his challenge to the application of s.15 of the Ordinance is bound to fail as all these properties were not subject matter of any Block Crown Lease but New Grants. Here I shall only consider the 1st Defendant s claim to Tsing Shan Monastery be they registered originally in the personal name of Chan Chun Ting, or later on, in respect of other properties registered in the name of Tsing Shan Monastery with Chan Chun Ting as the trustee thereof only. 11.18 The 1st Defendant s case was that the transmission/succession of ownership and interest in land in Chinese Buddhist Monastery (as a tradition practice in China and the New Territories) was by the Abbot passing his bowl and gown to his chosen disciple and/or succeeding abbot. The 1st Defendant asserted (in paragraph 63 of his Defence and Counterclaim) that Tat On succeeded according to this tradition to the properties in Tsing Shan Monastery in or about 1936, shortly after the death of Chan Chun Ting. Subsequently Mung Sang also succeeded according to this tradition to the said properties in or about 1964, shortly before the death of Tat On. Likewise, the 1st Defendant himself succeeded, according to this tradition, to the said properties in or about February 1989, shortly before the death of Mung Sang. 11.19 Further, the 1st Defendant asserted that Mung Sang succeeded to the said properties under the will of Tat On, Probate of the will having been granted to Mung Sang. Similarly, the 1st Defendant succeeded to the said properties under the will of Mung Sang, Letters of Administration having been granted to the 1st Defendant and others. 11.20 Furthermore, the 1st Defendant asserted that he was entitled to be registered as the manager of Tsing Shan Monastery. 11.21 In respect of those properties registered in Tsing Shan Monastery, Chan Chun Ting did not retain any beneficial interest in the properties of Tsing Shan Monastery to be passed onto any successor. The 1st Defendant has to prove the alleged tradition of transmission/succession by the passing of the bowl and gown. The 1st Defendant has not adduced any evidence in that respect. On the other hand, Mr Kwok Fu gave evidence to the effect that passing of the bowl and gown is not a recognized form of Buddhist succession, but merely a reference to Tang Dynasty legend. In any event, the passing of bowl and gown only signified the passing of the words of Buddhas and not the abbotship. 11.22 More importantly, there is no evidence that Chan Chun Ting had in fact passed his bowl and gown to Tat On. To the contrary, the 1st Defendant himself gave evidence that Tat On was not a disciple of Chan Chun Ting. Tat On only came to Tsing Shan Tsz after Chan Chun Ting had passed away. Further, as aforesaid in Chapter 1 herein, the evidence before the Court is that the Rev. Ho was appointed the Abbot of Tsing Shan Monastery after the death of Chan Chun Ting which is confirmed by the 1st Defendant himself. Tat On did not in fact become the Abbot (or the Abbot in charge for the time being . 11.23 Likewise, there was no evidence that Tat On had passed the bowl and gown to Mung Sang. The 1st Defendant informed the Court clearly that in fact Mung Sang did not pass any bowl and gown to him since Mung Sang was already in his death bed and there was no time for Mung Sang to do that. At the time of the death of Mung Sang, the 1st Defendant himself had not even been ordained as a Buddhist monk. There was no evidence that the chain of transmission/succession is possible even in respect of a late person and can be subsequently rectified or perfected after his ordination. The 1st Defendant s case on this scenario must fail. 11.24 Further, even on the assumption that s.15 of the NTO does not apply (which is not the case here), Tat s interest in Tsing Shan Monastery was that of a trustee only. He could not in law pass any interest in land by way of a testamentary disposition. The granting of probate or letters of administration cannot have the effect of converting the interest of a trustee into some beneficial interest. 11.25 Chan Chun Ting and Tat On were in any event interested in the properties only as managers. As such, their respective appointments lapsed upon death. There is no succession to managership. Mung Sang has never been appointed as a manager of Tsing Shan Monastery. Thus the 1st Defendant s claim for a declaration that he was the manager of Tsing Shan Monastery (and Tsing Wan Kun) and entitled to registration as such under s.15 of the Ordinance must fail. 11.26 In any event, under s.15, the power of approving appointment of managers is vested in the Secretary for Home Affairs/District Officer. The Court does not exercise such administrative power. If the 1st Defendant were to challenge the exercise or non exercise of such power, he could only do so by way of a judicial review. He, however, has not even applied to be a manager of Tsing Shan Monastery. His application, in light of my findings herein, would certainly be refused by the District Officer. His claim in this regard is therefore completely misconceived. 11.27 Likewise, the 1st Defendant s claim for those properties originally registered in the personal name of Chan Chun Ting would also fail. If they were somehow incorporated into properties of Tsing Shan Monastery, the 1st Defendant s claim would fail for the same reason. If not, he must, a fortiorari, fail, as Tat On could not succeed to Chan s personal properties. 11.28 In conclusion I am firmly of the view that the 1st Defendant has no claim in any beneficial interest to Tsing Wan Kun or Tsing Shan Monastery. I shall in the next chapter consider the 2nd Defendant s case and in particular the two groups of properties registered in the personal name of Chan on one hand and in the name of Tsing Shan Monastery on the other. Chapter 12 The 2nd Defendant s Case 12.1 The 2nd Defendant s case should also be considered separately in respect to Tsing Wan Kun and Tsing Shan Monastery. Tsing Wan Kun 12.2 The 2nd Defendant claimed that the properties of Tsing Wan Kun were held on a charitable trust. However, although the properties of Tsing Wan Kun were held on trust, the trust did not meet the requirement of charitable trust in law. The claim that it was a religious trust did not assist the 2nd Defendant since a religious trust does not have a defined meaning in law. Further, it may or may not be a charitable trust. In other words, the only relevant claim to Tsing Wan Kun is that it is a charitable trust. In so far as it did not meet the requirement of a charitable trust, then the 2nd Defendant would have no locus to enforce it even though it could be said to be a religious trust. 12.3 There is no dispute that since the Block Crown Lease, there is a kind of trust affecting the Tsing Wan Kun properties. The managers are holding the property in trust for Tsing Wan Kun. In order to succeed in showing that this is a charitable trust, the 2nd Defendant would have to show that this trust for Tsing Wan Kun is wholly and exclusively charitable. 12.4 The Plaintiffs submitted that the 2nd Defendant would fail in limine (i.e. on the threshold or at the outset) if the 2nd Defendant could not establish all the terms of this trust. There was no evidence of any terms for the setting up of Tsing Wan Kun, nor was there any evidence on the constitution of Tsing Wan Kun (contrast with the case of Ip Cheung Kwok (supra)). Thus, if the 2nd Defendant was to succeed at all, it could only be done if it could be shown that by Chinese customary law, the assets of Tsing Wan Kun could only be used wholly and exclusively for charitable purposes. 12.5 I have already decided hereinbefore that Tsing Wan Kun is a temple in private ownership, being owned by the To clan, family, lineage or t ong of To Yi Tso. 12.6 This temple could only be charitable if somehow by the customary law, the property of the temple could not be used for any other purposes other than those which were charitable. As the 2nd Defendant was not relying on anything other than religious being the charitable purposes, the 2nd Defendant could only succeed if it was proved by customary law the property could not be used for any purpose which was not religious purpose. When Tsing Wan Kun was owned by private individuals or family, clan, tso or t ong, then obviously it could not be charitable. 12.7 I have already decided that Tsing Wan Kun has never been run as a Ten Directions Monastery. However, it must be noted that even if the temple had adopted the Ten Directions doctrine, it does not necessarily mean that it is charitable. There are many benevolent objects which a temple operating on the Ten Directions principle may do which are not charitable. Of the activities carried out by the Monastery since the Sung Tip, it would appear that the activities of the running of the business of a chai tong could not be charitable. In the Administrative Reports for the year 1920 at Appendix J, page J2, it was pointed out that there was a rapid growth of chai tong or vegetarian halls to attract the well do of Hong Kong, particularly the womenfolk and that the believer was not expected to come empty handed 7D-63 and 72. The Administrative view there and then was that this should not be encouraged. It cannot be doubted that chai tong and the monastery are two different types of organization according to the evidence of Professor Baker (see 8 July 53H-54J). There is little doubt that the Monastery did run a chai tong business in the past (e.g. Law Sze Ku ( n to the Tos attending the ceremony every year cannot be a charitable act either because it is an exercise of the right of the mountain owner. 12.9 It would not assist the 2nd Defendant to contend that the property was held under a religious t ong because religious t ong has no defined meaning. Hence, even if it would be appropriate to call Tsing Wan Kun a religious t ong, if it does not meet the requirement of a charitable trust in law, the 2nd Defendant again has no locus to enforce it. 12.10 The term religious t ong is not a term of art even according to Professor Baker who was called by the 2nd Defendant (see 4 Exp 735, para.2). 12.11 In any event, simply by calling a particular landholding religious t ong, does not mean that it is charitable. If one is to adopt the meaning ascribed by Hayes in his memorandum referred to by Professor Baker (at 4 734), then a religious t ong is certainly not a charitable institution because this type of body could have a vast varieties of activities, some of which are not charitable (see 4 739, para.7). 12.12 Can the 2nd Defendant derive any support from the Chinese Temple Ordinance as claimed in her defence? I shall consider this in the next section. The Chinese Temples Ordinance, Cap.153 12.13 The Chinese Temples Ordinance, Cap.153 was originally enacted in 1928 for the purposes of regulating the administration and governors of Chinese temples in Hong Kong. However, it is plain that the registration of Tsing Shan Monastery under the Ordinance does not include Tsing Wan Kun. At the time of the application, Tat On had not become the manager of the land of Tsing Wan Kun while he was already the manager of the land registered in the name of Tsing Shan Monastery. It is therefore difficult to see in what capacity he could have caused Tsing Wan Kun to be registered. He was not a manager of its property nor could it be said that the property of Tsing Wan Kun belonged to Tsing Shan Monastery. The two, as I have found, are legally distinct entities of landholding. His claim to be the chu chi of Tsing Wan Kun was at the most self professed and was without any legal basis. 12.14 Under section 4(1) of the Ordinance, it is envisaged that each temple should be in a separate building. Although Tsing Wan Kun and Tsing Shan Monastery are within close proximity, they are nevertheless separate buildings. 12.15 In any event, I accept the Plaintiffs submissions that the Chinese Temples Ordinance which is an ordinance of general application, should not have any application to a Chinese temple owned and operated by a clan, family or t ong in the New Territories because of section 13 of the NTO. By this same section 13, it has been held in the past that the Partition Ordinance and the Limitation Ordinance does not apply either. Otherwise, the control of the income and property of such clan, family or t ong temple to be held in the hand of the Chinese Temple Committee is certainly against the Chinese customary rights. Since it may lead to the property and the income of such clan, family or t'ong temple to be used for purposes wholly alien to the setting up of this clan, family or t'ong temple. This is in line with the decision of Mills Owens J. in the case of Tang Kai Chung v. Tang Chik Sang (supra). 12.16 This view is supported by the fact that there appears to be no intention to apply the Ordinance to privately owned temple managed unobjectionably. According to the Hansard , the Hon Sir Shou Chow 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. 12.17 It is further supported by the fact that none of the exempted temples listed in the Schedule to the Ordinance are in the New Territories. In fact, all exempted temples are in Hong Kong Island only. 12.18 In any event, if I am wrong on this point, it is still open to the Plaintiffs to petition the Chief Executive according to the Ordinance for the necessary exemption. Of course before that exemption is granted, the Chinese Temples Ordinance would have applied to Tsing Wan Kun. The Plaintiffs still own the temple albeit they have not registered the same under the Ordinance subject to the rights of the Chinese Temple Committee in accordance with the Ordinance. The 2nd Defendant s case in respect of Tsing Shan Monastery 12.19 As I have said before, there is a second part of the proceedings in respect of the Scheme of Arrangement for Tsing Shan Monastery. Thus it would be inappropriate for me to decide on issues which would affect the Scheme of Arrangement. In this event, I would restrict myself to those findings of facts which is relevant and necessary in Part I of the trial herein only. 12.20 As pointed out previously, some properties of Tsing Shan Monastery were acquired by Chan Chun Ting in his personal name between 1910 and 1920. One lot was acquired by Ho Miu Ching in her name in 1920 and another lot by Cheung Sum Chuen in 1924, also in his own personal name. Since 1925, other lots were acquired in the name of Tsing Shan Monastery with Chan Chun Ting as the trustee or manager thereof. 12.21 Basically, by three Memorial Nos.96619, 96620 and 96621, all dated 2 October 1936, Tsing Shan Monastery succeeded to those lots registered in the name of Chan Chun Ting, Ho Ching or Tsing Shan Monastery with Liu Wan, Tat Ngon and Tat On as trustees for Tsing Shan Monastery in their place. (It should be noted that D.D.131, Lot 719 was not included in the Memorial. We do not know whether it was just a clerical mistake. It is quite apparent from what transpired herein below that it was.) 12.22 By Memorial No.122885 dated 8 February 1949, Liu Wan and Tat Ngon were removed from trusteeship, leaving Tat On as the sole trustee. The aforesaid Lot 719 was included in the Memorial thus giving me the impression that Lot 719 was just left out in the previous Memorial by mistake. 12.23 After the death of Cheung Chuen, his lot was succeeded to by Tsing Shan Monastery with Tat On as the sole trustee by Memorial No.125282 dated 1 November 1949. This was later on sold by Tat On, as manager of the Tsing Shan Monastery, to one Lo chiu, manager of On Yeung T ong of Tsing Shan on 15 October 1960. There was only one lot in D.D.131, Lot 584 which was purchased by Chan Chun Ting in his personal name dated 9 January 1919 which did not form part of the Tsing Shan Monastery complex. It was not included in the aforesaid Memorial No.96620 dated 2 October 1936 whereby various lots were succeeded to by Tsing Shan Monastery with Liu Wan, Tat Ngon and Tat On as trustees. 12.24 The 2nd Defendant submitted that since 1925, some properties were acquired in the name of Tsing Shan Monastery with Chan Chun Ting as trustee. They must be presumed to have been acquired by Tsing Shan Monastery with his own funds and there is no evidence to show otherwise. Further, it was submitted that it could be inferred from the fact that since 1929, properties were acquired in the name of Tsing Shan Monastery with Chan Chun Ting as trustee that long before his death, Chan Chun Ting had formed the intention to settle all the properties forming the Tsing Shan Monastery estate in favour of Tsing Shan Monastery and divest himself of any beneficial interest thereto. The 2nd Defendant also invited the Court to infer that all the properties forming part of the Tsing Shan Monastery estate acquired since 1910 had been acquired for the benefit of Tsing Shan Monastery and that Chan Chun Ting never took any beneficial interest therein. Alternatively, all the properties forming part of the Tsing Shan Monastery estate acquired since 1910 had been acquired with the funds belonging to Tsing Shan Monastery. Further, the 2nd Defendant submitted that Chan Chun Ting must have settled the properties acquired in his personal name for the benefit of Tsing Shan Monastery sometime before his death although there is no record of such settlement. 12.25 For my part, I can infer from the evidence put forward before the Court that Chan Chun Ting had every intention to settle all properties acquired even in his own personal name for the benefit of Tsing Shan Monastery. For those properties already registered in the name of Tsing Shan Monastery with Chan Chun Ting as the trustee only, there should be no problem of such a settlement. However, even with the clearest intention, there is no evidence that Chan Chun Ting had effectively settled the properties acquired by him in his personal name for the benefit of Tsing Shan Monastery. I cannot even identify any evidence equivalent to a declaration of trust by Chan Chun Ting for properties acquired in his personal name for Tsing Shan Monastery. 12.26 All properties were however transferred into the name of Tsing Shan Monastery with Liu Wan, Tat Ngon and Tat On as trustees. The 2nd Defendant may, in Part II of the trial concerning the Scheme of Arrangement, invite the Court to declare those properties registered in the name of Chan Chun Ting who died leaving no claims by anyone who could lawfully claim to be entitled to his estate as bona vacantia and/or making it part of the properties of Tsing Shan Monastery in light of the clear intention of Chan Chun Ting. The possibility of any constructive trust has not been explored by the 2nd Defendant. I shall leave it to the submission of the 2nd Defendant and other parties in the second part of the trial. This can only be decided in the presence of other parties in the second part of the trial. 12.27 In any event, in so far as it concerns the passing of interest as an Abbot of the Monastery, Chan Chun Ting s interest was only in the nature of a trustee. It cannot result in the 1st Defendant s claiming a beneficial interest in the properties. I have already decided in the last chapter that both the 1st Defendant s appointment as the Abbot and his claim to the beneficial interest in the properties must fail. He therefore cannot claim anything in the second part of the trial. The Chinese Temples Ordinance 12.28 Tat On has registered Tsing Shan Monastery under the Chinese Temples Ordinance. I have already decided that it did not or could not cover Tsing Wan Kun. In Tat s own application, he stated that it was in respect of worshipping the Three Preciou [[O) Office. Although Mung Sang s signature has been accepted by the District Office for the purpose of resumption of land by the Crown, his application for managership was refused. I must say that I find this quite irregular. I would say only that I find, for the purpose of Part I herein, that Tsing Shan Monastery (excluding Tsing Wan Kun which I find is not part and parcel of Tsing Shan Monastery) has been run as a religious institution for the benefit of the public at large. It is open to parties to make their own submissions in the application for the Scheme of Arrangement in respect of Tsing Shan Monastery according to my findings herein. 12.29 In conclusion, I find that the 2nd Defendant has not made out a case for the properties of Tsing Wan Kun which I find has been owned by the Plaintiffs. The 2nd Defendant s contention in respect of Tsing Shan Monastery should be considered in the Second Part of this trial, though the 1st Defendant has no part to play therein. 12.30 Both Defendants, however, has a last line of defence to the claims of the Plaintiffs and that is their pleaded case on limitation and laches. I shall consider this in the next chapter. Chapter 13 Limitation and Laches Limitation 13.1 The 2nd Defendant relied on s.7(2) of the Limitation Ordinance where no action can be brought to recover any land after the expiration of 12 years from the date on which the right of action accrued. Assuming that the Plaintiffs claim is an action to recover land, the Limitation Ordinance does not apply to bar the Plaintiffs claim because the Plaintiffs claim would be a claim by someone entitled to enjoy land as a member of the clan, family or t'ong. Under s.13 of the NTO, the application of Chinese custom or customary rights is mandatory. There is no rule of limitation to bar the claim of the members of any clan, family or t'ong in Chinese law and custom. 13.2 Deputy Judge Sharwood has held in the case of Tsang Wing Lung v. Tsang Lun (supra) that the Hong Kong law of limitation was an aspect of English law and that even though it might be procedural, it would affect the operation of the substantive Chinese law and customs which applied to New Territories land as a result of s.13 of the NTO. Accordingly, the Limitation Ordinance must be disregarded. This is a case concerning the claim by a son of a share of his father s estate in land as a result of the right of succession in Chinese law. A fortiorari it would apply to the claim by members of a tso or t ong to the property of the tso or t ong. This is particularly so when members of a tso or t ong would include unborn members. The claim by these unborn members would be on their own rights as being a member of the tso or t ong when born and their claim is not a claim through the members who are now living or lived in the past. Thus there is no reason to deprive them of their rights simply because of the inaction of those who were or are still living. Accordingly, there is all the more reason for holding that the Limitation Ordinance should not be applicable to the present claim. 13.3 In any event, even if s.7(2) of the Limitation Ordinance were otherwise applicable to the Plaintiffs claim, it is difficult to see how this section could bar the claim brought on behalf of those members of the tso who are still minor or who are yet unborn. In fact, even if the claim by say, the managers of the tso is barred, that does not stop them from claiming as managers for those unborn or minor members of the tso. It has been specifically provided under s.10(3) of the Limitation Ordinance that where land is held upon trust, an action to recover the land may be brought by the trustees on behalf of any person entitled to a beneficial interest in possession in the land or in the proceeds of sale, whose right of action has not been barred by this Ordinance, notwithstanding that the right of action of the trustees would, apart from this provision, has been barred by this Ordinance. 13.4 It has already been pointed out that s.13 of the NTO is a specific legislative provision and would over ride other later general legislative provisions in their applications to New Territories land. This has been held by Mills Owens J in the case of Tang Kai chung that the Partition Ordinance (which was enacted after s.13 of the NTO) would not be applicable to cases of partition of land held in the name of clan, family or t'ong. 13.5 It must be noted that the case of Beauty Glory Investment Ltd. v. Tang Tai Tong (supra) is not a decision to the contrary. In that case, Godfrey J (as he then was) appeared to hold that the Partition Ordinance did apply to land in the New Territories. However, on the facts before him, the land was registered in the name of a t ong in the Block Crown Lease of 1906. In 1920, there was a division of the property by the managers with the approval of the Land Officer whereby the plaintiff s predecessor title had become owner of one fourth shares of the land. Hence from 1920, the land has ceased to be t s land but was merely land held by four persons, three of them being t ongs. Thus the case was not really decided on the basis that the Partition Ordinance would also operate to allow partition of the t s land (see pages 598C 599C). It is also important to note that the way Godfrey J approached the question of the applicability of the Partition Ordinance would indicate that he was also of the view that if there was any Chinese customary law to preclude the division of the property from having the effect which he would hold to be the intended effect, then the Partition Ordinance would not be given any effect (see page 598C E). However, in the end, Godfrey J held that because of the way that the property had been dealt with, there was no customary law to preclude the effect of the Ordinance on the facts before him. 13.6 Further the cause of action would only accrue when the owner has been dispossessed or has discontinued in his possession in accordance with s.8(1) of the Limitation Ordinance and adverse possession has been taken by some other person pursuant to s.13 of the Ordinance. There is, however, no evidence of any dispossession or discontinuation of possession. The land of Tsing Wan Kun was, and still is, being occupied by Tsing Wan Kun. The title to the land of Tsing Wan Kun had never become vested or merged with anyone else. There was no suggestion by the 2nd Defendant or the 1st Defendant as to how the Plaintiffs had ceased possession or had been dispossessed. 13.7 In any case, there is no evidence of any adverse possession against the Plaintiffs. In order to claim adverse possession against the owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it (see Megarry & Wade : The Law of Real Property, 5th Edn. page 1034). The purpose of the Tos setting up Tsing Wan Kun was to establish and maintain the running of the temple as a private Kun for the benefit of the members of the tso or members of the To Clan. In this context, private Kun would mean privately owned Kun and not a Kun to which no outsider would be admitted. This is because under Chinese customary law, no one may be barred from worshipping in other people s temple (see Dr Faure : The Structure of Chinese Rural Society, page 78 at 3 Exp. 728). The use by the Tos of the Kun was to enable them to carry out their rights of lantern lighting ceremony. The carrying out of this ceremony has never been disturbed at all. In fact the Tos continued to enjoy the free vegetarian meals symbolizing the acknowledgement of their title to Tsing Wan Kun as the mountain owner. The fact that some monks continued to stay at Tsing Wan Kun or some members of the public went to visit Tsing Wan Kun falls within the purpose for which the Tos established Tsing Wan Kun, i.e. for the maintaining and running of the temple. There is simply no adverse possession. This is just the way the temple has been enjoyed by the Tso. 13.8 Even if the monks at Tsing Wan Kun were to be treated as having been in adverse possession, the adverse possession would only relate to the land of House Lots 1, 2 and 3 and Lot 416 of D.D.131. There is no evidence of any other act or possession by the monks as to any other lots which are still registered in the name of Tsing Wan Kun. It is important to note that adverse possession is a question of fact and the true owner is ousted only to the extent of the land which is actually in possession for the requisite period. Thus if the squatter is only in possession of only part of the piece of land owned, then the true owner s right would only be affected to the extent of that which is actually in adverse possession by the squatter and no more. In this respect, the following pieces of evidence are relevant, namely :- a. There were some rental receipts given by Chan Chun Ting and Tang Po Yun to Lau Fook (probably in relation to fields at Lang Shui Tsai, latest of which was in 1919). However, it is plain that Chan received the rent as authorized by the Sung Tip given by the Tos. b. There was evidence from Lau Tin Yan that he had delivered rent to Tsing Shan Monastery. However, bearing in mind that he was born in 1926, he must be talking about the times after the Sung Tip. His field was at Lang Shui Tsai and it was one of the fields which had been sold to Lau Wong Fat and Lau Chi Ping by Tat On. Thus this field is not within the land claimed by the Plaintiffs and is thus irrelevant. Even if it is relevant, this must be done pursuant to the Sung Tip and not otherwise. c. As to the rest, the evidence is that the 1st Defendant has never collected any rent from any land at all. He cannot even collect the rent from the flats in the name of Tat On and Mung Sang, both of whom had made a declaration in favour of Tsing Wan Kun. 13.9 Thus, in any event, the defence under s.7(2) must fail in relation to land other than House Lots 1, 2 and 3 and Lot 416 of D.D.131 because there is simply no evidence as to the possession, let alone adverse possession of these other lands. 13.10 In relation to House Lots 1, 2 and 3 and Lot 416 in D.D.131, there is evidence to suggest the inference to be drawn that the continuation of the operation at Tsing Wan Kun by the monks was, and is, with the implied permission of the Tso or the Tos Clan. The fact that the Tos continued to hold the lantern lighting ceremony and to have free vegetarian meals is good evidence of their acknowledgement of the licence and the grant of the permission. 13.11 The last registered manager of Tsing Wan Kun was Tat On. Tat On claimed his right to be manager by way of succession to the estate of To Tong Hing and Tang Yun. Although he had a separate letter applying to be approved as successor manager, it is plain that the approval of his appointment as manager was based on his application to succeed to the estate of To Tong Hing and Tang Yun as evidenced by the fact that the approval was endorsed on the form of application for succession to estate. The 2nd Defendant has called no evidence to seek to explain otherwise. If Tat On claimed his right as successor to To Tong Hing and Tang Yun, no one claiming through him could be said to be in adverse possession to the interest of To Tong Hing and Tang Yun and persons they represented. 13.12 In any event, this is a case to which there is no limitation period applicable because of s.20(1) of the Ordinance. Section 20(1) provided as follows (1) No period of limitation prescribed by this Ordinance shall apply to an action by a beneficiary under a trust, being an action (a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or (b) to recover from a trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use. As Tat On was the last registered manager of Tsing Wan Kun and the 1st Defendant is now claiming through him only, Tat On would be the trustee of the land of Tsing Wan Kun. The present claim by the Plaintiffs would be a claim to recover from the trustee the trust property or the proceeds thereof in the possession of the trustee or previously received by the trustee and converted to his use under s.20(1)(b) of the Limitation Ordinance. In this respect, I accept the Plaintiffs submission that the words in the possession of a trustee in s.20(1)(b) should be construed as meaning in the possession of a trustee or his estate or volunteer deriving a title from him or his estate. Tat On died. Mung Sang took possession of Tsing Wan Kun plainly as a licensee of Tat On during his lifetime. Since Tat s death, Mung Sang s status could not have changed. The probate he held did not cover Tsing Wan Kun properties. Likewise, the 1st Defendant was at Tsing Wan Kun as licensee of Mung Sang. In any event, even on the 1st Defendant s case, he merely claimed to be entitled by reason of succession to Tat On through Mung Sang. Neither the 1st Defendant nor Mung Sang claimed to be in adverse possession and neither of them could have a better title than Tat On or his estate. Thus the 1st Defendant s defence on limitation must fail. The 2nd Defendant 13.13 Section 7(2) of the Limitation Ordinance is not available to the 2nd Defendant either. A party is not entitled to set up the title of a third party to assist his claim or defence. The 2nd Defendant never claimed to be in possession (whether adverse or otherwise) nor did she claim that any charitable trust or t ong was in possession other than that trust or t ong as Tsing Wan Kun itself. If the 2nd Defendant had succeeded in showing that Tsing Wan Kun was a charitable trust or t ong (which I have decided otherwise against her), then of course the 2nd Defendant would succeed and the Plaintiffs would fail. No question of limitation would arise. In setting up her defence, the 2nd Defendant had not and had not been able to identify who was in adverse possession and for what period. Although the 1st Defendant, through his previous counsel, has also pleaded the Limitation Ordinance, he has not specifically relied on any section, let alone s.7(2). Even if there were a period of adverse possession which would be available to the 1st Defendant, as the 1st Defendant had not pleaded that, the 1st Defendant had not relied on it, and certainly the 2nd Defendant could not benefit from such period of adverse possession either. The 1st Defendant s limitation plea 13.14 The 1st Defendant s reliance on the Limitation Ordinance was in relation to the claim regarding the registration of the property in the name of Tat On as manager, the sale of the property in Schedule 2 and also the surrender of the property by Mung Sang. There is, therefore, no reliance on s.7(2) or any possessory title which has arisen in favour of Tat On or Mung Sang or anyone else. Even if there were such a pleading, as I have found hereinbefore, Tat On or Mung Sang were not in adverse possession at all. The Tos were aware of their presence and accepted the free vegetarian meals offered by them. They in turn had accepted the Tos in their annual Lantern Lighting Ceremony. 13.15 Further, on the other hand, in respect of the right to appoint an ecclesiastical living is an advowson. This is the closest analogy to the right to appoint an Abbot to Tsing Wan Kun (see Megarry & Wade : the Law of Real Property, 5th Edn. pages 830 for the meaning of advowson ). This is an incorporeal hereditament and is not within the definition of land in the Limitation Ordinance where land is defined to exclude any incorporeal hereditament. There is no limitation period provided for incorporeal hereditament under the Limitation Ordinance. The position in England is that such right would not be barred until after the period during which three successive incumbencies had been held adversely to the owner of the advowson, or 60 years, whichever is longer, but subject to a maximum of 100 years (see Megarry & Wade : The Law of Real Property, 5th Edn. page 1033). Laches 13.16 Whether the relief of declaration is an equitable remedy or not, it is plain that the Court has a discretion in granting or refusing such remedy. However, the Court must act on established principles. The events would involve both a substantial lapse of time and also circumstances which make it inequitable to enforce the claim. Thus the delay will be fatal if there is evidence of an agreement by the plaintiff to abandon the claim or it has resulted in the destruction or loss of evidence by which a claim might have been rebutted, or the plaintiff had so acted as to induce the defendant to alter his position in the reasonable belief that the claim has been released or abandoned. Furthermore, this is a defence which must be specifically pleaded (see Ng Kee v. Attorney General [1977] HKLR 587 at 589 and 591). 13.17 The 2nd Defendant has pleaded laches and has given particulars of the prejudice suffered in support of such plea. The 2nd Defendant is thus bound by the particulars given and is not entitled at the final submission stage to rely on matters not pleaded or particularized to support the defence of laches. The particulars in support of the plea of laches are set out in the Further and Better Particulars supplied under para.20 at P 178. 13.18 The lapse of time pleaded was the case of inaction since 1829, 1843 or 1905 and 1914. No case was put on the basis that any claim should have been made in 1932 or 1933 when Chan Chun Ting died, or in 1963 or 1964 when Tat On sold the Schedule 2 properties or when he died. The case as argued in the final submission is entirely different from the case pleaded and particularized. This new case is not open to the 2nd Defendant. 13.19 Furthermore, it is for the party s setting up the defence to prove it. The 2nd Defendant called no one to give evidence as to what evidence the 2nd Defendant would propose to adduce but which was rendered impossible because of the lapse of time, whether it is a case of lapse of time from 1932 or 1905 or otherwise. 13.20 In any event, even if the 2nd Defendant is entitled or is allowed to rely on any donation made by visitors to the Tsing Shan Monastery to support their plea, the evidence before the Court is far from satisfactory in showing that the donors would have behaved differently if they were aware that Tsing Wan Kun was owned privately by the Tos. In general, private temples are also open to the public for donation and few would only make the same on the basis that the temple is not a privately owned temple. The Hansard on the Chinese Temple Ordinance previously cited in relation to exempted temples indicated that for private temples they would also receive donations. 13.21 All in all, I have come to the firm conclusion that neither the Limitation Ordinance nor the equitable doctrine of laches would be available to the 1st and 2nd Defendants defence. Chapter 14 Conclusion The Plaintiffs 14.1 The Plaintiffs were and still are the owners of Tsing Kun and all properties registered under its name. 14.2 The Kun and its properties were not a charitable and/or religious trust and/or tong or part of the same. The Chinese Temple Ordinance, Cap.153 is not applicable to the Kun. 14.3 The sale of Schedule 2 properties by Tat On was wrongful, though the Plaintiffs action herein shall not prejudice the title of the said Schedule 2 properties acquired by Lau Wong Fat and Lau Ping under the assignment of 25 June 1963. 14.4 The 5th Defendant should account for all profits from the aforesaid sale including the said two Flats in the Statement of Claim. Further, the Plaintiffs are entitled to a declaration that they are beneficially entitled to the said two Flats. 14.5 The Plaintiffs are also entitled to the funds lodged with the Judicial Accountant by the 4th Defendant herein. 14.6 All in all, the Plaintiffs are entitled to the reliefs as claimed in paragraphs (1) to (7) of the prayer in the Statement of Claim. The 1st Defendant 14.7 Tsing Kun and properties registered under its name were not beneficially owned by : Chan Chun Ting; Tat On; Mung Sang; and/or The 1st Defendant ( the said four Persons ). 14.8 Further Tsing Shan Monastery and all properties registered under its name were not beneficially owned by any one of the said four Persons. 14.9 The 1st Defendant was not at any time, the manager of Tsing Shan Monastery and Tsing Kun and he is not entitled to be registered as such under s.15 of the NTO. 14.10 The defence of limitation and laches failed. Accordingly, the 1st Defendant s Counterclaim against the 1st and 2nd Plaintiffs and the 2nd Defendant must be dismissed. The 2nd Defendant 14.11 The 2nd Defendant only counterclaimed against the Plaintiffs in respect of Tsing Kun and properties registered under its name. By reasons of the aforesaid matters, the 2nd Defendant is not entitled to any relief she counterclaimed against the Plaintiffs in respect of Tsing Kun and its properties. Her contentions in respect of limitation and laches also failed. Her counterclaim against the Plaintiffs has to be dismissed. 14.12 The 2nd Defendant succeeded in her defence against the 1st Defendant s Counterclaim in respect of Tsing Shan Monastery which was dismissed as aforesaid. 14.13 However, the 2nd Defendant s pleaded defence to part of the 1st Defendant s counterclaim in respect of Tsing Shan Monastery is that the same was and still is a charitable/religious trust/t ong. Although the 2nd Defendant generally succeeded in her defence, the question of what is the true nature and identity of Tsing Shan Monastery and, in particular, whether or not it is a charitable/religious trust/t ong are questions to be decided in the second part of the trial in the presence of the 3rd Defendant as well. Accordingly, a determination thereon is deferred to the second part of the trial wherein the 1st Defendant shall have no role to play since it has been determined herein that he is not entitled to any of the properties presently registered in the name of Tsing Shan Monastery. Costs 14.14 The following Orders Nisi in respect of costs are hereby made, namely :- The Plaintiffs are entitled to their costs on : their claim against the 1st , 2nd, and 5th Defendants, the 1st Defendant s counterclaim, and the 2nd Defendant s counterclaim. The 2nd Defendant is entitled to her costs on the 1st Defendant s counterclaim against her. Directions 14.15 The Plaintiffs have the carriage of the formal Order. Such Order shall be drafted and submitted for my approval. 14.16 There shall be general liberty to parties to apply for all matters arising and incidental hereto. 14.17 All parties herein were already informed of the delivery of my Judgment herein. In order to facilitate the second part of the trial which presumably shall be short in light of my findings, the 2nd Defendant is hereby directed to inform the following persons of this Judgment, namely :- the Official Administrator (since part of the properties of Tsing Shan Monastery registered under Tat On s managership came originally from properties registered in the personal name of Chan Chun Ting, deceased). the Chinese Temple Committee under the CTO Cap 153 (since Tsing Shan Monastery has been registered under this Ordinance). the Antiquities Advisory Board under the Antiquities and Monuments Ordinance, Cap 53 (since some of the objects in this case may fall within the definition of antiquity under this Ordinance and/or in any event the said Board may like to take certain actions/decision including declaration of monuments and plans thereof in respect of the same under s.3 of the said Ordinance). 14.18 It goes without saying that the 2nd, 3rd and 4th Defendants shall have liberty to apply for further directions in respect of the second part of the trial. Chapter 15 Epilogue 15.1 At the end of this judgment of considerable length, I must express my gratitude to a number of persons who has assisted me immensely throughout this trial. I must, first of all, thank my clerk, Ms Susanna Fong, for overseeing the clerking of the whole proceedings. She has diligently indexed and properly filed all exhibits, documents, books, written submissions and authorities, which have increased day by day. This has greatly assisted me in understanding the case and the arguments. In the course of writing this judgment, she has smoothly managed and liaised with various parties, checked all drafts and corrections, and collated the necessary photographs and documents in the Appendix. This proved to be a tedious and tiring task for which she often had to work overtime. She has also been ably assisted by my past and present ushers and office assistants. 15.2 I must also thank Mr Besson Lee, the interpreter for undertaking the interpretation works throughout this trial for the 1st Defendant and other witnesses whenever it was necessary. He was also the interpreter in the first trial before J. Chan, J. Mr Lee and members of the Use of Chinese Section have undertaken the main task of translating the original works in English to Chinese and vice versa. They have also ably assisted in the Chinese version of this judgment, for which I am indebtedly grateful. 15.3 I also thank Ms Pauline Sum and her team of stenographers who have undertaken the typing works of the English Judgment and the final Chinese version with high efficiency and skill. I am extremely grateful for their works. 15.4 All counsel appearing before me have reduced their speeches and arguments on the disputed issues in writing and comprehensively set the same out with tables, diagrams and aptly cited authorities. This has facilitated the expeditious disposal of the matter. 15.5 Both leading counsel have eventually succumbed to my incessant suggestion that they should also use Cantonese in examining witnesses using the same dialect. This proved to be very efficient and direct, although it sounded a bit awkward for them at first. They have got use to it very soon. A lot of time was saved. 15.6 I must particularly thank those instructing solicitors and assistants sitting behind counsel for their prompt response to my call for documents, tables, files and books or a re arrangement of them. They have totally committed to keep the trial going as smoothly as I required. 15.7 I would also like to mention that the 1st Defendant, the Rev. Sik, although appearing in person, has never raised any unnecessary objection throughout the trial. Whenever he addressed the Court, his address has always been precise and concise, one which a court would expect from an efficient and conscientious counsel. 15.8 With all the assistance I received, it goes without saying that all mistakes herein are mine. Chapter 16 Costs Date of hearing (in Chambers) July 1999 Date of handing down decision (in Court) : 29 July 1999 The Application 16.1 Subsequent to my order nisi in respect of costs made in paragraph 14.14 herein supra, the 2nd Defendant applied to vary this order as follows :- (i) The costs of the 2nd Defendant be taxed on an indemnity basis or any other basis as the Court deems fit and paid out of the funds lodged in Court in the name of Tsing Wan Kun. (ii) there be no order as to costs against the 2nd Defendant in favour of the Plaintiffs (except where the same has been dealt with by previous orders). 16.2 I must point out at the outset that the aforesaid two variations are inconsistent as they would tantamount to ordering the Plaintiffs to pay the 2nd Defendant s costs since it is my judgment that Tsing Wan Kun belonged to the Plaintiffs. I shall set out hereinbelow first the legal position of costs in the case of the Government in litigation. The Legal Position 16.3 At common law, in litigation between the Government and a subject, the Government neither pays nor receives costs unless the case is governed by a special statute (see Johnson v The King [1904] A.C. 817 at 825). This rule would apply whether or not the Attorney General was acting in the capacity of parens patriae, taking care of the interest of charity or in the performance of other public duties (see Halsbury s Laws of England 1st edition Vol. 4 paragraph 711). 16.4 The common law rule was sometimes not acted upon. In A G v. Corporation of London [1850] 2 Mac & G 247, 271 Lord Cottenham L.C. said It is perfectly true that justice requires that the rule which has been so often acted upon, and so generally received as an axiom, should not be lost sight of, and nothing would be more unjust than in a contest in which the Attorney General could not be made to pay costs, that he should be, under any circumstances, entitled to receive costs, for it is not putting the parties at all upon equal terms . The rule ought not to be extended beyond what is reasonable : it ought not to be extended beyond the cases in which the Attorney General, if he were not Attorney General, but suing as an individual, or any other individual suing in his place, would be liable to pay costs. The rule, instead of being that the Attorney General neither receives nor pays costs, ought rather to be, that where the Attorney General could be called upon to pay costs (had he been a private individual), then he ought not to receive costs. [272] .. Where however, one party is in possession of a judgment, and the opposite party comes and questions that judgment, then the matter of costs is not in the discretion of the Court. The party in possession of the judgment never is made to pay costs. He has got the judgment, and is entitled to defend it. [273] .. the principle that the Attorney General never receives costs nor pays costs may be modified in this way, namely, that the Attorney General never receives costs in a contest in which he could have been called upon to pay them had he been a private individual. 16.5 The common law position was altered by the Crown Suits Act, 1855. The recent law or practice regarding the question of costs in relation to the role of the Attorney General in dealing with charitable trusts is set out in The Law and Practice Relating to Charities by Picarda (2nd ed.) at pages 672-673 In charity proceedings and indeed whenever he was suing in discharge of his public duty it was formerly said that the Attorney General never pays costs, even when he loses his case. However the modern statutory provisions enabling an order for costs to be made against the Crown now appear to apply in such cases. All the same, where the Attorney General appears with the sanction of the court, he cannot be liable for costs to any other party; so too where he is a necessary party. In charity cases the Attorney General is entitled to receive costs which would have been awarded to him as a private litigant; equally, as Lord Cottenham once said, the Attorney General never receives costs in a contest in which he could have been called upon to pay them had he been a private individual. In administration actions where the Attorney General is joined to represent the interests of charity he is usually given his costs on a standard basis out of the estate, even if the proceedings are unsuccessful so far as charity is concerned. 16.6 The modern statutory provisions referred to in Picarda as aforesaid is the Administration of Justice (Miscellaneous Provisions) Act 1933, s.7(1). In Tudor on Charities, 8th Ed. page 358 it was said Costs The court has an absolute discretion as to the award of costs. The discussion which follows, based on past decisions, indicates the manner which that discretion is likely to be exercised. The Attorney General The rule established by the Administration of Justice (Miscellaneous Provisions) Act 1933 was that in any civil proceedings to which the Crown is a party the costs are in the discretion of the court, which must exercise its discretion in the same manner and on the same principles as in cases between subjects and may order the payment of costs by or to the Crown accordingly. Where, however, the Attorney General as such is required to be made a party, the court must have regard to the nature of the proceedings and the character and circumstances in which the Attorney General appears and may, in the exercise of its discretion, order any other party to the proceedings to pay the costs of the Attorney General whatever may be the result of the proceedings. 16.7 The Hong Kong equivalent to the aforesaid s.7(1) of the 1933 Act is s.17 of the Crown Proceedings Ordinance, Cap.300. The relevant parts of the aforesaid s.17 provide as follows 17. Costs in civil proceedings to which the Crown is a party In any civil proceedings to which the Crown is a party, the costs of and incidental to the proceedings shall be awarded in the same manner and on the same principles as in cases between subjects, and the court shall have power to make an order for the payment of costs by or to the Crown accordingly : Provided that - (a) in the case of proceedings to which by reason of any enactment or otherwise the Attorney General is authorised to be made a party, the court shall have regard to the nature of the proceedings and the character and circumstances in which the Attorney General appears, and may in the exercise of its ... discretion order any other party to the proceedings to pay the costs of the Attorney General whatever may be the result of the proceedings; and (b) nothing in this section shall affect the power of the court to order . the payment of costs out of any particular fund or property 16.8 Mr Patrick Fung S.C. for the 2nd Defendant relied on two cases in order to support that the Attorney General should get her costs. They are In re Macduff [1896] 2 Ch. 451 and In re Rymer [1894] 1 Ch. 19. In the case of In re Macduff the Attorney General sought to argue that a certain gift in a will was a good charitable gift but did not succeed. The ruling of the Court on costs was as follows The costs of the respondents were ordered to be paid out of the estate as in In re Rymer, it being admitted on all hands that the Attorney General could not be ordered to pay them. 16.9 Mr Fung further submitted that in the case of In re Rymer itself the Attorney General failed to argue at first instance that a testator had expressed a sufficient general intention of charity for a gift to be held on a scheme of trust. Nevertheless, the costs of the respondents (including the Attorney General) were ordered to be paid out of the estate. 16.10 However, I accept Mr Edward Chan s submission for the Plaintiffs that in In re Rymer the Attorney General actually did not get the costs of the appeal. Chitty J., sitting in the Court of First Instance, rejected the Attorney General s argument and decided that the legacy could not be applied cy pres but lapsed and fell into the residue. Then the Attorney General appealed. Lord Herschell, L.C. said (at p.34) that I think the appeal [i.e. of the Attorney General] should be dismissed with costs. (i.e. with costs to the Respondent.) The last paragraph in In re Macduff only said that The costs of the Respondents, [i.e. not the Attorney General who actually appealed to the Court of Appeal,] were ordered to be paid out of the estate as In re Rymer, it being admitted on all hands that the Attorney General could not be ordered to pay them. In other words, the Attorney General in In re Rymer only would not have to pay the costs of the Respondents but the Attorney General himself did not get the costs to be paid out of the estate. 16.11 In any event, the aforesaid two cases were decided before the 1933 Act after which the Court would have to consider the nature, character and circumstances of the case in deciding a costs order. Nature, character and circumstances of the present proceedings 16.12 The nature of these proceedings before me is not administration proceedings. Each of the three participating parties, namely, the Plaintiffs, the 1st Defendant and the 2nd Defendant, was making a different contention on the beneficial ownership of Tsing Wan Kun. The contention was not limited to matters of construction of law or any document. Each party brought before the Court evidence in support of its contention. 16.13 The 2nd Defendant was not limited to testing the case of the Plaintiffs and the 1st Defendant. She was advancing a positive case on charity and had adduced substantial documents in evidence and had called witnesses to support her case and to destroy the case of the Plaintiffs and the 1st Defendant. 16.14 I accept the Plaintiffs submissions that had the 2nd Defendant been a private litigant acting on behalf of some beneficiaries and contending that the properties of Tsing Wan Kun should be held for the benefit of those beneficiaries, the 2nd Defendant would be asked to pay the Plaintiffs costs as in a general hostile litigation. 16.15 Historically, in MP562/1992, the Attorney General was taking the initiative to seek the appointment of the 4th Defendant to hold the property of Tsing Wan Kun by alleging that the property was held in charitable trust. In other words, the Attorney General asserted that the properties of the Plaintiffs should belong to charity. In answer to that, the Plaintiffs then applied to be joined to defend their right and to prove that the Attorney General was wrong. If one acts on the aforesaid facts, one would be drawn to the conclusion that the 2nd Defendant should pay the Plaintiffs costs. 16.16 However, Mr Fung for the 2nd Defendant has urged upon me to consider the following matters and the authorities in support, namely :- (i) The 2nd Defendant was a necessary party to these proceedings in rendering assistance to the Court. (See Ip Cheung Kwok v. Sin Hua Trustee Ltd. [1990] 2 HKLR 276 at 515 523.) (ii) The 2nd Defendant was only performing a public duty. (iii) The 2nd Defendant has never claimed any proprietary interest in Tsing Wan Kwun in her capacity of a Government agent for the benefit of Government as opposed to the general public at large. (iv) The 2nd Defendant had not conducted the proceedings unreasonably. (See In re Cardwell [1912] 1 Ch 779 at 783.) (v) There were very complicated and serious issues to be tried. (See In re Preston s Estate [1951] 1 Ch 878 at 881.) The assets, the subject matter of the proceedings, are very substantial, a breakdown (as at 30 November 1998) is as follows :- (a) Payment into Court by The Secretary for Home Affairs Incorporated on 7.10.93 HK$3,851,682.02 (b) Payment into Court by The Secretary for Home Affairs Incorporated on 6.8.96 HK$99,961,641.00 (c) Payment into Court by The Secretary for Home Affairs Incorporated on 6.8.96 HK$239,910,458.00 (d) Accrued interest on (a) as at 30.11.98 HK$1,086,570.90 (e) Accrued interest on (b) as at 30.11.98 HK$12,913,802.19 (f) Accrued interest on (c) as at 30.11.98 HK$30,996,677.87 HK$388,720,835.98 (See Hunter v. The Attorney General [1899] AC 309 at 325.) 16.17 The aforesaid reasons, in my view, should not deprive the Plaintiffs of their costs in the proceedings. However for the aforesaid reasons, I have come to the conclusion that the 2nd Defendant s own costs and all costs she has to pay to the Plaintiffs should be indemnified out of the funds of Tsing Shan Monastery. It has been part of the 2nd Defendant s contentions that Tsing Wan Kun and Tsing Shan Monastery have merged into one and the two funds in their names should be a common fund for charity. The 2nd Defendant is entirely successful in respect of the Monastery. She only failed in respect of the Kun. 16.18 Although the trial was mainly concerned with Tsing Wan Kun, some of the evidence (e.g. the issue of Ten Direction Forest) is relevant both to the Kun and the Monastery. The distinction of the Kun against the backdrop of the Monastery enabled the Court to decide on the distinct entity of the Kun and thus to conclude that the Monastery has its own character and entity. It is not a matter of taxation to distinguish between the part of the trial concerned with Tsing Wan Kun and the part concerned with Tsing Shan Monastery. All in all, the 2nd Defendant is appearing in this case for the benefit of what she alleged to be one charitable trust failing which she is successful to establish that there is a charitable trust in the Monastery. In following the provisions of s.17 of Cap.300, I consider that it is only fair and proper that the 2nd Defendant s own costs and all costs she was asked to pay should be indemnified out of the funds of Tsing Shan Monastery. 16.19 At the hearing, the suggestion that the 2nd Defendant s costs should be paid from the fund of the Monastery was made by the Bench to the parties. Mr Chan for the Plaintiffs adopted a very neutral stand on the ground that it is not the Plaintiffs concern how the 2nd Defendant s costs should be indemnified. In my view, such a cautious submission is not necessary. It must be in the interests of the Plaintiffs that if there is another way whereby the 2nd Defendant s costs should be paid in order to achieve a fair and proper result. This would add to the conclusion that the Plaintiffs should be allowed to receive their costs and the 2nd Defendant should not obtain costs from the funds in the name of the Kun. 16.20 On the other hand, Mr Fung for the 2nd Defendant appeared to be in some form of embarrassment. He probably thought that if he should go along the line of the suggestion from the Bench, he would not be discharging his duty for the benefit of the Trust in Tsing Shan Monastery. Apparently he thought he was in some form of conflict as he should see to it that the Trust fund in the name of the Monastery should not in any way be diminished. This, in my view, is not so. The 2nd Defendant s stand has always been that since Chan Chun Ting acquisition of the Kun by way of the Sung Tip and thereafter established Tsing Shan Monastery, the Kun has merged into the Monastery. He failed in this respect. Should he succeed, the fund of the Monastery would include the fund of the Kun. That stand was entirely for the benefit of the Monastery and therefore all beneficiaries thereunder. I said it would only be fair that the 2nd Defendant s costs should be indemnified out of the fund of Monastery is exactly because of the stand of the 2nd Defendant in respect of the Kun which was entirely for the benefit of the Monastery. In the event she failed in this respect, the Monastery fund should be used to pay for the costs of the 2nd Defendant. In other words, the beneficiaries would benefit tremendously should the 2nd Defendant succeed in her contention in respect of the Kun. Now she failed. The Monastery fund should be employed to indemnify the 2nd Defendant s costs. 16.21 I also said it is proper that such a course should be taken. I am fortified by proviso (b) to the aforesaid s.17. The Court is empowered to order payment of cost out of any particular fund or property. Through the industrious effort of Counsel from both sides, no case could be found where the Attorney General s costs was paid out of another fund from the fund in litigation. The proviso is worded in general term. The case before me is a peculiar case whereby two funds were involved. The nature, character and circumstances of this case compel me to consider the propriety of ordering costs to be paid out of another fund. I think this is a proper case. Otherwise there would be no mutuality in that the trust in the Monastery would benefit tremendously should the 2nd Defendant succeed in claiming back the fund in the Kun for the Monastery but the Monastery would have nothing to lose when the 2nd Defendant failed as in this case. This cannot be just. 16.22 Further the funds as aforesaid are very substantial. This, however in my view, cannot be the sole ground for taking the course I am taking herein. 16.23 In conclusion, the order nisi on costs should stand and is hereby made absolute with the following variation by way of addition, namely All costs the 2nd Defendant was ordered to pay to the Plaintiffs and her own costs shall be paid out of the funds lodged in Court in the name of Tsing Shan Monastery on common fund basis 16.24 This shall include, of course, the costs of this application, i.e. the costs of this application shall be to the Plaintiffs against the 2nd Defendant whereby the 2nd Defendant s own costs and the costs she was ordered to pay the Plaintiffs shall be borne out of the funds in the name of Tsing Shan Monastery again on common fund basis. (David Yam) Judge of the Court of First Instance, High Court Mr Edward Chan, SC, inst'd by M/s Miller Peart De Witt, for the 1st and 2nd Plaintiffs 1st Defendant in person - present (trial proper) 1st Defendant in person - absent (hearing of costs) Mr Patrick Fung, SC, inst'd by Department of Justice, for the 2nd Defendant Appendix Appendix No. Description A Photo album Map set out the various buildings and components of the Tsing Shan Monastery complex and Tsing Wan Kun "Sung Tip" and its translations Tang Kai Chung v. Tang Chik Sang [1970] HKLR 276 Mills-Owens J. at p.287-289 Dramatis Personae in To Clan of Tuen Mun with Generation of : Cheung Fong, Second Fong and Third Fong of To Ka Yi Tso Family Tree (Exhibit No. P40) 6. A photo of the memorial stone and a copy of its inscription The inscription of the Wooden Epitaph Lantern Lighting Book of 1859 (the Ninth Year of Ham Fung) The grain book of To Tong Hing p.98 and p.126 of Document Bundle 1 10. Ten rental receipts (Exhibit No. P21) 11. Hong Kong Government Gazette No. 26 of 28 April, 1900 xvi-xix The Lot History of Land Connected with Tsing Shan Monastery Third Addendum to the Plaintiffs final Submission 13. The stone rubbing of Ross Ruling and its translation 14. Application forms for succession to Estates 15. Notices issued by Yuen Long District Office in relation to Tat On s application to succeed the managership of Tang Po Yun and To Tong Hing in Tsing Wan Kun HYPERLINK "http://legalref.judiciary.gov.hk/doc/judg/html/vetted/other/en/1994/HCMP002084_1994_files/Appendix1-5.pdf" \t "_blank" Appendix 1-5 HYPERLINK "http://legalref.judiciary.gov.hk/doc/judg/html/vetted/other/en/1994/HCMP002084_1994_files/Appendix6-8.pdf" \t "_blank" Appendix 6-8 HYPERLINK "http://legalref.judiciary.gov.hk/doc/judg/html/vetted/other/en/1994/HCMP002084_1994_files/Appendix9-15.pdf" \t "_blank" Appendix 9-15 Whether Tsing Wan Kun is part of the Tsing Shan Tsz is already an issue to be tried in this case. Vol. 3 of this Judgment contained the Appendix which is intended to be more comprehensive to a general reader. References to page number of various kinds of Bundles before me are intended for the convenience of the parties herein. See Appendix 1 photo 11 See Appendix 6 See Appendix photo 19 This is not a satisfactory arrangement. Perhaps in future in such a situation, one party should be represented by another firm of solicitors who should instruct counsel from the Bar. The effect of registering a manager in respect of a family, clan or t ong and whether Tsing Wan Kun is one of them will be discussed in full later. The Second Trial was actually commenced at Tsing Shan Monastery with Mr Edward Chan S.C. opening the Plaintiffs case by referring to a number of salient items found at the Kun and the Tsz. At the very start, all counsel agreed that it was part and parcel of the Court hearing and thus no photograph should be taken of the Court proceedings. No objection, of course, would be taken if photograph was taken of any object in the public place whilst the Court was not moving thereat about. This was clearly explained by the Court to three members of the press who were present there and then. They also expressed they had no question to raise therefor. However, it was regrettable that thereafter, they enquired from the Court Information Officer later on in the day why the Court disallowed the press to take photograph in the public place! The same question was raised in some of the Chinese press the next day. In the first trial when there was translation provided for the witness, the transcript would only show the English translation. This has been changed in the second trial where usually translation would not be provided when a witness give evidence in Chinese. If it was done exceptionally for the benefit of expert present in Court, the transcript would only show the original Chinese version of the testimony. It goes without saying everything is recorded in the Digital R In fact, all solicitors and counsel who had handled this case in its early years in 1963/64 had either died or emigrated elsewhere and nowhere could they be found. From the papers before me, they had been subject matter of enquiry in disciplinary action against them by the Law Society and the Bar. The result thereof is not apparent from the papers before the Court. The history of s.13 has been succinctly stated in the judgment at pp.287-289. This history had some bearing on the case before me as Tsing Wan Kun was the owner of the Block Crown Lease granted in 1905 as a result of various enactments between 1898-1905. That part of the judgment of Mills Owens J. is reproduced in Appendix 4 herein with paragraphing supplied for easy reading. Transcript means the transcript for the 2nd Trial. The 1st Trial transcript is denoted by 1T, 2T and 3T. Sir Chaloner Alabaster was described as Sometime H.B.M. Consul-General in China . His writing was gathered by his son Ernest Alabaster in his Book : Notes and Commentaries on Chinese Criminal Law and Cognate Topics with Special Relation to Ruling Cases together with a Brief Excursus on The Law of Property Chiefly Founded on the Writings of the Late Sir Chaloner Alabaster This should be distinguished from the trust of the manager of a t ong or tso. 0og!n .s No 0u~v]u kt^6e0u N\O8l` lKN(u S]y) N?b) N?b) ent :Lantern Lighting Ceremony. See Xian Dai Han Yu Ci Dan Dictionary of Modern Chinese, page 292. See Appendix 1 photo 24. The Practice of Chinese Buddhism 1900-1950 at pp.133-134. The parties are in hot dispute as to the English translation of this Book for obvious reason. Any translation would be an interpretation or construction of the words used. I shall use Dr Faure s translation which is the only full translation of the Book for the time being. For the present condition of Relics of P q\,{ }ASkQt^LrAb n a translation of Dr. Chan Man Sing produced by the 2nd Defendant. Contrast this sentence with the sentence used in the case of Beautiglory Investment Ltd. v. Tang Yet Tai Tong [1993] 2 HKC 591 where the wordings used were From now on, this land will forever be the property managed by Pak Yuen in the 1943 document and the earlier deed made in 1903 which says Then, the fields will forever go to Yick Ting for collection of rent and management with four Chinese characters at the bottom of that instrume YNoSt^) [t^) eceipts in this Exh.P 21 is an example of some of the documents received or inherited by the present solicitors for the Plaintiffs from previous solicitors or a line of them. They were given to those solicitors by someone from the Plaintiffs. It is however untraceable now as to who actually gave those rental receipts to whom. The best copies in Exh.P 21 are only photographic reproduction copies. All Chinese dates on the Chinese calendar have been converted to Gregorian calendar hereinafter. Apparently in the early years, New Territories was called New Territory This was not originally included in the bundle but reproduced and inserted into the bundle when Exh.P21 was compared with p.p.141-148 as aforesaid. There is no evidence to this effect. In fact when the British administration started to take over the New Territories }vQY) Unfortunately, this boat sank in the Tolo Harbour and all red and white deeds were destroyed and could not be found. This made a number of claims to New Territories properties rather difficult and land owners would have to rely solely on the registration accepted by the District Office. A memorial stone plaque erected therein which was discovered shortly before the second trial. the Tsing Shan Tsz, the character of Tsing Wan Kun and Tsing Shan Tsz became the same which would somehow become a charitable t ong or trust. This will be considered later. This part of the case of the 2nd Defendant will be examined in more detail in a separate chapter. This is another incident where the document was inherited by the present solicitors from previous solicitors. It might be usual for the period elsewhere as in the days of Exodus. See Appendix 14. See Appendix 15. Since the Ordinance is ambiguous in this respect, the Hansard is referred to under the limited allowance to do so. It is not that if he did, he could claim a proprietary interest in the Kun. It should be noted that the 1st Defendant s previous counsel did not plead what section of the Limitation Ordinance would be relied on. This is bad pleadings. The distinction between common fund and indemnity costs basis lies only on the burden of proof. It would not affect the quantum, see Wharf Properties Ltd v. Eric Cumine Associates & Others [1992] 2 HKLR 273. I consider common fund taxation of the 2nd Defendant s costs is enough herein. 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