Docstoc

HCMP FH family history

Document Sample
HCMP FH family history Powered By Docstoc
					                                                       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 Lighting Ceremony

Exclusivity of the Lantern Lighting by the Tos

The Free Vegetarian Meal
                                      2

The Record Book and Dian Duan Chu (典斷出)

Conclusion

Chapter 6 – Chan Chun Ting (陳春亭) and Tsing Wan Kun
(青雲觀)

The Origin and changes at the Tsing Wan Kun

Chan Chun Ting (陳春亭)

Chapter 7 – Sung Tip (送帖)

The Tip

Background

The Meaning and Effects

The Three Chops of Tsing Wan Kun

Chapter 8 – The Block Crown Lease for Tsing Wan Kun with
Tang Po Yun and To Tong Hing as Managers

Land holding position between 1900 and 1914

To Tong Hing as a manager

Tang Po Yun

Chapter 9 – Chan Chun Ting (陳春亭) and Tsing Shan Tsz (青
山寺)

Chan Chun Ting‘s activities before Sung Tip

Sequence of land grant of Lots 416,417 and 418

―Ross Ruling‖
                                       3

Chan‘s activities after Sung Tip

Chapter 10 – Ten Directions Forest or Monastery (十方叢林 –
Sap Fong Chung Lam)

Tsing Wan Kun – a Ten Directions Monastery?

Tsing Shan Monastery – a Ten Directions Monastery?

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
                        4


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
          TO KAN CHI                           (陶根池)                       1st Plaintiffs
          TO FUK TIM                           (陶福添)
          and
          TO KAM CHAU                          (陶鑑籌)
          (as managers of the)
          TO KA YI TSO                         (陶嘉儀祖)

          TO CHEONG LAM                        (陶昌林)                       2nd Plaintiffs
          TO SIU LAM                           (陶兆林)
          TO MEI LUN                           (陶美粦)
          TO MAN HING                          (陶萬興)
          and
          TO MUK TAI                        (陶木泰)
          (as representatives of the To Clan)
                                     and
          PUI MAN YAU                          (斐文有)                   1st Defendant
          alias SIK KWOK WAH                   (釋覺華)

          THE ATTORNEY GENERAL                                         2nd Defendant
          CHAN YAT SAN                         (陳日新)                  3rd Defendants
          LAU WONG FAT                         (劉皇發)
          and
          HO SUN WING                          (何新榮)

          THE SECRETARY FOR HOME AFFAIRS                               4th Defendant
          INCORPORATED
                                                                           th
          PUI MAN YAU (斐文有) alias                         5 Defendant
          SIK KWOK WAH (釋覺華), the personal representative
          of TAT ON, deceased
                              -------------
          (Consolidated by the Order of the Honourable Mr Justice J Chan
                              dated 26 January 1996)
                                     2




Coram : The Hon Mr Justice Jerome Chan in 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
                                        3

                        ---------------------------
                          JUDGMENT
                        ---------------------------

             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 and vice versa.
                                   Chapter 1- Prologue

1.1               ―Tsing Wan Kun‖ (青雲觀) is not a popularly known temple to an
ordinary citizen in Hong Kong. It is, however, situated within the compound1
or precinct of ―Tsing Shan Tsz‖ (青山寺) or ―Tsing Shan Monastery‖ (青山
襌院) 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‖ (斗姥) in the Grand Precious Hall of Tsing
Wan Kun which is known as ―Dou Lou Dian‖ (斗姥殿) — See Appendix 12
Photos 4 to 7. On the other hand Tsing Shan Monastery has its own main
temple called the ―Grand Precious Hall‖ or ―Da Hung Bo Dian‖ (大雄寶殿)
also sometimes known as the Main Hall of Tsing Shan Monastery or Tsing Shan
Tsz wherein the main idol being worshipped is ―Sam Bo Buddha‖ (三寶佛).
Thus it is also called Sam Bo Hall (三寶殿). No one has ever suggested that
Tsing Shan Monastery is a Buddhist cum Taoist 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


1
    Whether Tsing Wan Kun is part of the Tsing Shan Tsz is already an issue to be tried in this case.
2
    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.
                                        5

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 (大雄寶殿) and Lot 418 for the ―Wu Fa Dian‖ (護法殿), were
purchased by one Chan Chun Ting (陳春亭). There were nine lots altogether.


1.5         Subsequently one lot was purchased by one Madam Ho Miu Ching
(何妙清) in December 1920. It has been suggested that Ho Miu Ching was
the wife of Chan Chun Ting. One lot was purchased by Cheung Sum Chuen
(張森泉) in January 1924. He was also known as Cheung Shun Bak (張純白)
and later in his Buddhist name of Liu Wan (了幻). Thereafter, there are three
lots of land, i.e Lot 718 for the ―Fa Ting‖ (法亭) and Lot 719 for ―Kun
Yum Kok‖ (觀音閣) and Lot 729 for ―Bodhisatva Kshitigabha‖ (菩提薩埵)
were purchased by Chan Chun Ting in the name of Tsing Shan Monastery with
Chan Chun Ting himself registered as the trustee or Sze Li (司理) thereof.


1.6         Chan Chun Ting was originally a Taoist monk (道長). He was
the Taoist Preist (道長) of Tsing Wan Kun. He was later on converted to
Buddhism and became a Buddhist monk in the name of Hin Kei Abbot (顯奇法
師). That was in the year 1918 or 1921. He had been the Abbot of Tsing
Shan Monastery ever since then until he died in the year 1932.


1.7         Chan Chun Ting‘s first involvement with Tsing Wan Kun was
evidenced by a document called ―Sung Tieh‖ or ―Sung Tip‖ (送帖), see
                                         6

Appendix 3. According to Sung Tip, Chan Chun Ting was appointed the
―Chu Chi‖ (住持), i.e. the Abbot of Tsing Wan Kun and Pui To Tsz (杯渡寺) by
the To‘s family of the five villages in Tuen Mun. The To‘s family contended
that that appointment was for life and was irrevocable. If any interest in land
had passed 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-and-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 9th Year of Dao
Kwong (已丑年即道光九年) of the Tsing Dynasty, which was 1829. Inside
the Kun, there is a bell donated by one Tam Sum Yek of Nam Hoi (南海譚心翼)
which was dated the 22nd Year of Dao Kwong (道光二十二年) i.e. 1842.3 A
memorial stone inside was dated the 23rd Year of Dao Kwong (道光二十三年
九月吉日) which was 1843.4 There are also other historical record of Tsing
Wan Kun in other documents which shall be considered in more detail later on.


1.9             Whereas Tsing Shan Tsz was only built after Chan Chun Ting
acquired the land between 1910 and 1920, the Grand Precious Hall (大雄寶殿)
was stated to be completed in the year 19185, which was also corroborated by
the inscription of another bell therein. In short, Chan Chun Ting was first
appointed the Taoist Abbot (道長) of Tsing Wan Kun and after his conversion to



3
    See Appendix 1 — photo 11
4
    See Appendix 6
5
    See Appendix 1 — photo 19
                                            7

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 generation on record was one To Ka Yi (陶嘉儀) who died in the year 1454,
that was the name of the To Ka Yi Tso (陶嘉儀祖) of the 1st Plaintiff as
represented by three managers thereof.             The five 2nd Plaintiffs as
representatives of the To clan are the five village elders of the five villages in
Tuen Mun and they are : ―Nai Wai Village (泥圍村)‖, ―Tsing Chuen Wai‖
(青磚圍), ―Tin Tsz Wai‖ (田子圍), Lam Tei Village (藍地村) and ―Lam Tei San
Tsuen‖ (藍地新村). They believed that their head ancestor was one To Si
Hang (陶士行), who was the father or forefather of the well known poet
To Yuen Ming (陶淵明) of the ―East Chun Dynasty‖ (東晉) in the 4th and
5th Centuries (AD365-427).


1.11         In other words, the To‘s family is famous and old, in a sense that it
has a long history through many dynasties of China.


1.12         Apart from those lots on which Tsing Wan Kun is now situated,
there are 28 other lots in DD130, 131, 132 and 138 scattered around in Tuen
Mun in the area of ―Tai Lang Shui‖ (大冷水), ―Siu Lang Shui‖ (小冷水) and
―Yeung Siu Hang‖ (楊小坑), 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.
                                         8

1.14           The 1st Defendant Pui Man Yau (裴文有), became the Abbot of
Tsing Shan Tsz in the Buddhist name of Sik Kwok Wah (釋覺華), claimed that
the properties registered in the name of Tsing Wan Kun and Tsing Shan Tsz
were owned by Chan Chun Ting and/or his successor Tat On (達安), and upon
his death in 1964, by ―Mung Sang‖ (夢生), his predecessor and uncle from
whom he derived his title. The succession to Abbotship was claimed to be as
follows :-
       (i)     Actually between Chan Chun Ting or Hin Kei Abbot‘s death
               in 1932 and Tat On being appointed the Abbot of Tsing Shan
               Monastery in or about the year 1949, there were two
               appointments of Sik Fat Ho ( 釋 筏 可 ) (1933-1936 and
               1942-1949) as the Abbot of Tsing Shan Tsz.
       (ii)    In between Liu Wan (了幻) was appointed as the Abbot in
               1936 to 1942.

       (iii)   Tat On was 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 On‘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.
                                        9

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-department1.


2.2               MP562 was concerned with 16 lots of land, 15 of which was
registered in the name of Tsing Wan 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 Po Yun (also sometimes spelt as ―Un‖ or
―U‖) as the trustee. He was however not an ordinary trustee in the English

1
    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.
                                               - 11 -

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‘ong‖ more particularly provided in the NTO2.
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 Po 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 Miu 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 Miu 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

2
    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.
                                      - 12 -

application from the three gentlemen to succeed to the property which was
originally registered in the name of a woman Ho Miu Ching. There was also a
confusion by the District Office in the English names of Tat On (達安) and
Tat Ngon (達岸), which is quite apparent from the Chinese characters.


2.7          It is not quite clear why the District Office had accepted their
application to succeed to Ho Miu 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 Tip‖, it is quite apparent that
the interpretation of the ―Sung Tip‖ was that it was an agreement dated
21 September 1914 by which in consideration of the payment of HK$360,
To Yiu Tung, To Hei Ting, To Tin 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 Tip‖, 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 of each of the three ―Fongs‖ (房) of To Ka Yi Tso and the other
one was the then clan elder.   It was not explained in the application why these
                                    - 13 -

four Tos could assign the property of Tsing Wan Kun to Chan Chun Ting
whereas the registered manager in the exhibit produced to the Court was in the
name of Tang Po 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 1½ 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 Yat San
( 陳日 新 ), Lau Wong Fat ( 劉皇 發) and Ho Sun Wing (何新 榮 ), and the
1st Defendant was the Attorney General whereas the 2nd Defendant was
Pui Man Yau (裴文有) alias Sik Kwok Wah (釋覺華). By this application, the
Plaintiffs was desirous to appoint one newly incorporated company in the name
of Tsing Shan Pui To Tze Tsing Wan Kun Non-Profits Taking Company Limited
(青山杯渡寺青雲觀不牟利有限公司) as trustee for the alleged charitable trust
under the name of Tsing Shan Monastery and Tsing Wan Kun. This will
include all properties now held 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.
                                     - 14 -



2.12          Thereafter on 9 and 10 October 1995, To Ka 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 Ka 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 Ka Yi 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 Man 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 Yat San, Lau Wong Fat
and Ho Sun 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
                                     - 15 -

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-re-amended Statement of Claim in yellow,
and they were respectively dated as follows :
       i)      3 April 1996
                                     - 16 -

       ii)    2 September 1996
       iii)   6 March 1997

       iv)    10 March 1998
       v)     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 Ka Yi 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 Wan 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
                                      - 17 -

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 ―A‖ 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.)
                                     - 18 -

       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
 nd
2 Defendant was amended three times and these pleadings were dated as
follows —
       i)     1 July 1996
                                    - 19 -

       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.
       ii)    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
       iii)   7 March 1998
       iv)    25 May 1998
       v)     25 May 1998
                                    - 20 -

       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
       viii) 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
                                               - 21 -

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 and 27 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
1998.3 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.




3
     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.
            Chapter 3 – Procedural and Evidential Considerations


Witnesses

3.1               A total of 21 witnesses gave evidence in the first trial. Two of
them were expert witnesses, namely Professor Siu Kwok-kin, Anthony (蕭國健
教授) and Professor Zheng Qin (鄭秦教授). The latter had only given part of
his evidence in the first trial. In the second trial, he was so ill that he could not
come here 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 Court1.
A check can easily be done if the accuracy thereof is in doubt2.


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



1
    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 Recording System if
    anything turns on the transcription.
2
    In fact this has been done herein : for example, the tape recording revealed that a witness was saying
    Chung Yee T‘ong ―忠義堂‖ in the recording instead of Tsing Wan Kun ―青雲觀‖ in the transcript.
                                     - 23 -

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 2 nd 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 Wan 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 Wan Kun and Tsing Shan Monastery.                The
 nd
2 Defendant will have the burden of proving that the land registered in the
name of Tsing Wan 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
                                    - 24 -

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, J.‘s
direction that the To Ka Yi 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;
                                                 - 25 -

          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
    st
1 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 died3. However, some of the documents are qualified
as ―ancient documents‖ : see Phipson on Evidence 14th Edn., paras.35-20 and
35-21 :-
                   ―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
    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.
                                       - 26 -

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,§35-20)
            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
                                         - 27 -

               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
                                       - 28 -

             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
                                    - 29 -

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 1 st 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 (―NTO‖).


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 (1), ‗proceedings‘ (法律程序) does not include
            proceedings in respect of or in relation to the Probate and
            Administration Ordinance (Cap.10), the Intestates‘ Estates Ordinance
            (Cap.73) or the Inheritance (Provision for Family and Dependants)
            Ordinance (Cap.481).‖

Section 13 was considered and construed in the landmark decision of
Mills-Owens J. in Tang Kai 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
                                              - 31 -

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 section1.

          (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 15—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


1
    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.
                               - 32 -

      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).
                                    - 33 -

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] 2 HKLR 23
Deputy Judge Sharwood applied the aforesaid decision in Tang Kai 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 Yin 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.
                                         - 34 -



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.‖
                                        - 35 -




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
                                   - 36 -

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 HKC 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
                                    - 37 -

             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
                                      - 38 -

              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 :-
                                    - 39 -

       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
                                              - 40 -

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).2


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.


2
    ―Transcript‖ means the transcript for the 2nd Trial. The 1st Trial transcript is denoted by 1T, 2T
    and 3T.
                                    - 41 -



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 ‗Chu‘ whereas the manager was called
             ‗Lo 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 :-

       1)    A tso and a yuen (院) which was itself in the nature of a
             t‘ong, could have the same membership and yet they had
             different identities in a sense that they held different
                            - 42 -

     properties and had separate accounts and were managed by
     different managers (see pp.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
                                            - 43 -

                 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 Alabaster3 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-tzŭ, the other
                 matters having flowed in. The temple appears from the records to
                 have been built by one of the Yang family — the character Yang

3
    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‖.
                                               - 44 -

                  having been introduced into its name to bring them good luck. It
                  appears also that it was subsequently repaired by 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 2 Exp-487 and Baker 3 Exp-492).4

          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

4
    This should be distinguished from the trust of the manager of a t‘ong or tso.
                                   - 45 -

            persons who actually exercised the management (Baker
            Transcript 8 July – 36R-37F).

       3.   In order to ascertain whether a particular ―clan, family or
            t‘ong‖ was a charitable trust today, one would have to see
            whether the rules or constitution of this ―clan, family or
            t‘ong‖ is wholly and exclusively charitable, that is to say by
            the rule of the ―clan, family or t‘ong‖, 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 Kun1.


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 Tip‖ (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


1
    PW6 To Yau Shun (陶友信) gave evidence that there was such a strong oral tradition.
    PW12 To Kam Chau (陶鑑籌) said he did not personally know of such oral tradition.
    The Plaintiffs submitted that PW12 was criticized in that he did not even say there was such an oral
    tradition. In order to neutralize such a suggestion or criticism, the Plaintiffs submitted that such an
    evidence was led although they accepted that it was only an oral tradition. The same was in
    To Fook Tim‘s genealogy at D3-845-846 : ―明清之際,建立青山青雲觀。重修青山寺、杯渡寺、
    等,並建立口角天后古廟,献上良田百畝,給予僧、尼、及司祝,每年收田租,以作永遠口粮,
    及香油之用‖. [―Sometime in the dynasties of Ming (明) and Tsing (清), Tsing Wan Kun of Tsing
    Shan was found. Tsing Shan Tsz, Pui To Tsz etc. were refurbished, the ancient Tin Hau Temple in
    Hau Kok was also found : a hundred acre cultivated land was dedicated to the monk(s), nun(s) and
    ‗sze-chuk‘ (司祝) so that there is annual rent from arable land to cover food, incense and oil
    permanently.‖]
                                            - 47 -

Chan Chun Ting. The Plaintiffs‘ evidence will be examined in detail herein
below.


The Tos’ Settlement and Connection with Tuen Mun

5.3              There is little doubt that the Tos had settled in Tuen Mun since the
Ming Dynasty. The genealogy of To Chung Yau Tso (陶松友祖)2 indicated
that To Ka Yi died in the Ming Dynasty (1454). (See Appendix 1, photo 2 in
respect of his grave.)           To Chung Yau is one of the three fongs of the
descendants of To Ka Yi which will be discussed later.                       His grandfather
To Man Chi (陶文質) died in 1368. His grave is still in Sheung Shui. (See
Appendix 1, photo 1.) There is a record book called ―the Record Book of Tax
Duties and Ancestral Properties to be separately managed in equal shares by the
Three Segments of To Ng Lou T‘ong‖ (陶五柳堂均派三房分理粮務嘗產登記
簿) referred to in this trial as the ―Record Book‖ or the ―Account Record
Book‖3.


5.4              To Ng Lou T‘ong is another name for To Ka Yi Tso. ―Ng Lou‖
was probably derived from the name ―五柳先生‖ (Mr Ng Lou) which is
another name for the famous poet To Yuen Ming (陶淵明). The ancestral hall
of the To Ka Yi Tso is called Ng Lou Tong (五柳堂). There were references in
this Record Book to Man Tso Chu Sze (文祖處斯) which were probably
references to To Man Chi (陶文質) and To Chu Sze (陶處斯) respectively4.
(See Appendix 1 photo 3 showing To Clan Ancestral Epitaphs.)



2
    Produced by Li Kwok Fu at 3 Exp-523 and 555-557. There are also Volume 2 and Volume 3
    thereof, i.e. Exh.P-23 and 24.
3
     Exhibit P-22 at D6-1498-1571, which was dated 1880 with the last entry dated 1888.
4
     See Exhibit P40 which is enclosed in Appendix 5 : Dramatized Personae in To Clan of Tuen Mun
    with Generation of Cheung (or First) Fong (長房), Second Fong (二房) and Third Fong (三房) of
    To Ka Yi Tso Family Tree.
                                       - 48 -

5.5          Although To Ka 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 :-

      (1)    Eldest son Chun Yan (松隱)
      (2)    Second son Chun Kan (松澗)
      (3)    Third son Chun Yau (松友)
      (4)    Fourth son Chun Mou (松茂)

According to the Account Record Book at D6-1502, i.e. p.4 thereof, it was
recorded that :

             “...其松茂房祇存壹丁名開枝外出在大莆墟南坑居住今在屯門者長
             二三共三房子孫...‖

Translation 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 ―大莆墟南坑‖
(Tai P‘o Huei Nam Hang) is not ―大埔墟‖ (Tai Po Huei or Market). However,
there is no ―大莆墟‖ (Tai P‘o Huei) in Hong Kong and therefore the probable
inference is that this is the same as ―大埔墟‖, Tai Po Market, which is written
differently with slightly different 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
                                             - 49 -

surname ―To‖ 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 18295. Inside Tsing Wan Kun, there is a memorial stone dated the
1st day of the 9th Moon in the 23rd Year of To Kwong (道光二十三年), which
was 1843. To Ka Yi Tso was described therein as ―donor‖ (施主) who had
donated seven stone and five dou (the inscription of this memorial stone is
reproduced at Appendix 6). It can be seen that there are nine donors, the
second one is Tang Yuen Wing (鄧遠榮) and the seventh one was Fan Kwong
Chiu (樊廣昭), both of them are non-Tos. All others are Tos. The title of
this memorial stone is ―今將送田芳名勒石以誌不忘也‖ (―Now it is listed here
the names of the donors of fields lest we may forget [them]‖). Although it was
stated to be ―gift of fields‖, each of the nine was said to have donated the rental
from fields (送田租) and at the second part of the inscriptions, there were six
different locations from where the rental came. They included Tai Lang Shui
(大冷水), Siu Lang Shui (小冷水) or Lang Shui Chai (冷水仔) and Yeung Siu
Hang (楊小坑). The other three places at Kun Ha Yuen (觀下園), Luk Um
Wu (鹿暗湖) and Por Punk Shan (破崩山) were not identified as to their exact
locations. It can be safely assumed that the record was donation of rental in
respect of rice fields instead of the field in perpetuity itself. The title of
―donation of field‖ (送田) is just a convenient Chinese style of titling instead of
the more cumbersome way of titling it as ―donation of rental from field‖
(送田租). The latter was explained more fully in the content thereinafter.




5
    See Appendix 1 photo 4, a photograph of the Tsing Wan Kun lintel.
                                    - 50 -

5.8          It is not the Plaintiffs‘ case that because a donation was made to the
Kun in 1843, the 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
                                   - 51 -

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 Plaintiffs as the
Wooden Epitaph which is now still retained in the Ancestral Tablet Hall (功德
堂) of the Tsing Shan Monastery, a copy of the names inscribed on the Wooden
Epitaph is reproduced at Appendix 1, photo 13 and the inscription copy
thereafter, see 13A. The 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‖
(晉階昭信校尉仕賜陶公神位) as the first patriarch and all other Tos were
ranked according to their seniority in the Government ranking.        Thus the
numbers rank from one to eleven for the To ancestors. To Ka Yi was described
as ―The tablet of the founder and donor of land to the temple Mr To Ka-yi‖
(建廟施田陶公嘉儀先生神位). This suggested that To Ka Yi established (or
built) the temple and had given fields to or for the temple. The evidence
before the Court is that this Epitaph, with the statement thereon, had been
placed in the 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 Yau 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
                                    - 52 -

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 Ka Yi must
have been regarded as the ―builder‖ [or ―founder‖] of the Kun by the maker of
the Wooden Epitaph (see 2 Exp-417).


5.13         It is true that the statement merely mentioned that To Ka 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 Tak 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 Ka Yi to dedicate their property to the Kun, or if they
had been the property personal to the successor of To Ka Yi, to become the
property of the lineage.


5.15         If the original temple was built by To Ka Yi in the 15 th 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 Clearance (康熙
清海令), the Tsing Emperor decreed in 1661 that the coastal settlements should
                                    - 53 -

be withdrawn a distance of 50 li (哩). It was because after the fall of the Ming
Dynasty (AD1643), and in the early years of the Tsing Dynasty, the coastal
settlements in Guangdong Province (廣東省) were suspected of assisting the
remnants of the Ming Dynasty and the pirates, and sympathizing to their cause.
Thus, every building was pulled down or burnt in order to remove any
assistance to the Ming rebels. As a result, the whole 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 Kun. To Fook Tim‘s genealogy of the To Clan (陶族族譜)
refers to the To Clan building Tsing Wan Kun in the middle of the 17 th Century
between the Ming and Tsing Dynasty. It is an example of the tradition existing
in the To Clan that they built Tsing Wan Kun.    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 donated by Nam Hoi Tam
Sum Yick (南海譚心翼) in 1842 and the Memorial Stone dated 1843.


5.17         In respect of the Wooden Epitaph, there is no evidence of its age.
However Fan Kwong Chiu was mentioned in the Memorial Stone and his name
                                    - 54 -

was also found in the Epitaph. The Epitaph must have been carved sometime
after 1843.


5.18          Further, accordingly to the genealogy, To Ting Kui (陶挺擧) and
To Ting Shuen (陶挺選) both belonged to the 14th generation and was one
generation senior to To Sik Kwong (陶錫光) who had signed the agreement
contained in the Record Book. To Sik Kwong was the third person mentioned
in the Memorial Stone and his other name was To Wai Fong (陶懷芳), i.e. No.9
mentioned in the Epitaph. He died in 1880. Thus the Epitaph could not have
come into existence before 1880.


5.19          The statement in the Epitaph that ―To Ka 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 Ka Yi would
ascribe or dedicate or treat the property of the temple built or established by
To Ka Yi 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 opposite to the Dou
Lou Dian (斗姥殿) (also known as Dou Mou Dian (斗姆殿)) across the tortoise
pool, was only moved to the Ancestral Tablet Hall after the war.            It is
noteworthy that To Ka Yi died in 1454 at the time of the Ming Dynasty when it
was popular to have ancestral worship to take place not at the ancestral hall
(祠堂) as we have today, but at family monastery or temple (家廟). It was the
                                             - 55 -

evidence of Dr Faure called by the 2nd Defendant on 6 July (see 34D-K).
Dr Faure also said that the Fan people used a private 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 Ka Yi‘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 Ka Yi and his forefather.


5.21             The other book called the Lantern Lighting Book (瓜瓞綿長 – 點
         6
燈序) confirmed that there was an ancestral hall of the Tos either within or in
very close proximity to the Tsing Wan Kun building. It referred to Tao Ka Tso
T‘ong (道家祖堂) which can be translated as the Taoist Ancestral Hall or the
Ancestral Hall of the Taoist Temple.              The next phrase of Cheung Sang
Luk Wai ( 長 生 祿 位 ) meaning ―eternally forever living‖, according to
Professor Baker, could be referring to the tablet of ancestor or 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
(功德堂) was built, which is part of the Tsing Shan Tsz in or about 1920s.


5.22             Even if the To Ka Tso Tong was not at a place opposite to the Dou
Mou Dian, the fact that it was so grouped with the Main Hall (大殿) etc. in the
Lantern Lighting Book, an inference can be drawn that it must be within the
close vicinity of the Main Hall. There could be no doubt that the Main Hall
would and could only refer to the Dou Lou Dian (斗姥殿). It must be noted

6
    A copy of the Book is at Appendix 8 herein.
                                        - 56 -

that at the time when this Book was written, the Da Hung Bo Dian (大雄寶殿)
of the monastery (which was erected at Lot 417) had not yet been built. (It
was only dated the Seventh Year of the Republic of China, i.e. 1918 – see
Appendix 1, photo 19.) Thus, if the Tos had an ancestral hall where they
would light lantern close to the Dou Lou Dian, it was a reasonable inference
that the To also owned the Dou Lou Dian in its immediate vicinity. In that
case, the two halls – the Dou Lou Da Dian (斗姥大殿) and the Tao Ka Tso
Tong (道家祖堂) were closely knitted together and the Tos who owned 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
              (鄧奇才), and an additional one called Wong Fu Nang
              (黃夫能).


5.23          The Plaintiffs however accepted that the Kun has been open to
public visitors throughout the ages. Even experts called by the 2 nd Defendant,
Professor Baker and Dr Faure, both said that private family temples which is
not within the village but outside the village of the owner would always be open
to public visitors. Mr Tang of Nam Hoi in donating the bell is clearly repaying
a blessing he received (酬謝神恩) according to the inscriptions on the 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
                                            - 57 -

                 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-T‘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
donors (施主) with substantial contributions to the Tos‘ family. Thus they
were mentioned in the Stone and the Epitaph.


The Lantern Lighting Ceremony7

5.25             The Lantern Lighting Ceremony has been undoubtedly an
important To Clan‘s activity and affair.                It takes place every year on the
15th full moon day of the first month of the Chinese Calendar. Its procedure
and provisions have been recorded in detail in the so-called Lantern Lighting
Book. Its title is called Gwa Dip Min Cheung (瓜瓞綿長) meaning ―eternally
spreading like melon vine‖. The word ―Gwa‖ (瓜) was used to denote male
descendants. The word ―Dip‖ (瓞) meant small and unripened melon. It
denotes prosperous proliferation. 8              Whilst ―Min Cheung‖ ( 綿 長 ) meant
proliferation forever. This Book was written in 1859.


7
    See Appendix 1 – photos 22 to 25 showing the recent :Lantern Lighting Ceremony.
8
    See Xian Dai Han Yu Ci Dan Dictionary of Modern Chinese, page 292.
                                    - 58 -

5.26         Thus the purpose of the lantern lighting ceremony is to celebrate
the extension of the clan and has been commonly done in ancestral halls
according to the evidence of Professor Baker and To Siu-lam (陶兆林), PW10.
In the case of the To Clan, the lighting of the lantern is performed in respect of
all male descendants and is a pre-condition for being recognized as a member of
the clan or tso according to the evidence of To Yau Shun (陶有信), PW6. This
has been done from generation to generation until now.


5.27         The ceremony would involve lighting lantern not only at the
ancestral hall, but also at Hau Kok Temple, Sam Sing Kung and also at Tsing
Wan Kun. According to this Lantern Lighting Book of 1859 (the Ninth Year
of Ham Fung — 咸豐九年), (see Appendix 8, page 4), one big octagonal
lantern and nine smaller lanterns (三元燈) should be hung up at Tsing Shan.


5.28         The big octagonal lantern would be hung up at the Main Hall
(―大殿正處列聖前八角燈一盞‖). For the aforesaid reasons I accept here that
this Main Hall (大殿) could only refer to Dou Lou Dian. At the time when the
book was written in 1859 by To Sek Kwong of the 15th generation and revised
by To King Kwong of the 18th generation, the Da Hung Bo Dian (大雄寶殿) of
the Tsing Shan Tsz was not even erected at Lot 417.


5.29         The second entry of ―The Saints at the Entrance Hall‖ (頭門列聖
前) no doubt was referring to the Entrance Hall of Tsing Wan Kun which,
according to the evidence, where statues of the saints were there and then
placed. The third entry ―Shek Yuen Shea‖ (石 舍) referred to the soil god or
god of the earth.


5.30         There is a hot dispute as to who is this ―Fat Yeh‖ (佛爺) (or
Buddha). Everyone accepted that there was no Buddhist temple at that time at
                                   - 59 -

or near Tsing Wan Kun. However, in the course of evidence, the only remnant
of a statue of a Buddha was the Rev. Pui To statue (杯渡禪師) — See Photo 17.
This is now situated at the Pui To Cave (杯渡巖) behind Tsing Wan Kun — See
Photo 16. From the available evidence, it is more probable that ―Fat Yeh‖ (佛
爺) referred to the statue of the Rev. Pui To (杯渡禪師) now situated at the Pui
To Cave even though we do not know for how long this ―Fat Yeh‖ had been
placed at that place (see also paragraph 6.6 hereinbelow). In other words, it is
the statute of the Rev. Pui To wherever it was placed in or near Tsing Wan Kun.


5.31        No evidence is available as to what and where was the next item
described as ―the Miscellaneous Shrine‖ (雜壇). It is not inconceivable that it
is a miscellaneous shrine for worshipping miscellaneous saints or idols 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‖ (道家祖堂長生祿位) attracted four more
smaller lanterns, making a total of five lanterns to be placed there, is evidence
that the Tos placed a lot of significance and importance to this Tso Tong
Ancestral Hall.


5.33        The fact that over the years, after the construction 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
                                    - 60 -

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 Buddhist Monastery (whether for consideration of
courtesy to the Buddha (禮佛) or otherwise) would not alter the spirit behind
the traditional lantern lighting ceremony.


5.34         The traditional spirit of lantern lighting was further evidenced by
the entry at the back of the Lantern Lighting Book (at 1D-63) which was an
agreement reached on the 30th Year of Kwong Sui (光緖三十年) (1863) that
whoever had a son born into his family, he should contribute $2 to the expenses
of the ceremony.


5.35         There were other entries 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 (口角), Ancestral Hall, the Big Village
(大村) (meaning the Big Village Temple (大村廟)), i.e. Sham Shing Kung (三
聖宮) would be paid by Ng Lou T‘ong (五柳堂) to the extent of $5 which was
a princely sum at that time. As previously mentioned Ng Lou Tong (五柳堂)
is the ancestral hall of To Ng Lou Tong (陶五柳堂). It was so named in
memory of the famous poet To Yuen Ming (陶淵明) who was also called Mr To
Tsim Ng Lou ( 陶 潛 五 柳 先 生 ).            Inside this hall there were rules and
regulations of the To Ka Yi Tso (陶氏嘉儀祖常條規) which was dated the 52nd
Year of Kin Lung (乾隆五十二年 i.e. 1787).


5.36         In 1996, the Lantern lighting Ceremony was video taped and
produced to Court. One of course cannot expect the detail of this ceremony
would be the same every year since its inception centuries ago. I accept that
                                    - 61 -

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 On 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 On 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 came from the use of the words
(lighting lantern) ―點燈‖ which was also capable of meaning lighting lantern
before the Buddha ―佛前點燈‖. This is rather usual for common worshippers
who visit a Buddha temple.       J.Chan, J. had sought clarification from the
witness 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 :
                                         - 62 -

                 ―I have seen no other family, other than the Tos coming to lit up a
                 lantern like that (1T-219P-Q).‖

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 lantern before the Buddha (佛前
點燈).


5.40             According to the Lantern lighting Book, lanterns would also be lit
and raised at the Hau Kok Miu and Saam Shing Kung.                  I would like to add
                   nd
here that the 2 Defendant has brought up the issue of ownership of these two
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 Meal9

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


9
    See Appendix 1 – photo 24.
                                      - 63 -

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 Mei Lun, To Yau 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‘être
            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
                                            - 64 -

                 established with funds collected from various lay supporters, who
                 retained no control over them once they were built.‖10


5.43             Apart from the rights of ownership, the following points should be
noted from this passage, namely :-
         1.      The lay family, clan or village who has the rights of
                 ownership was known as Shan Chu (山主) or mountain
                 owner.      This will be discussed later in the context of
                 Sung Tip (送帖) where the Tos were described as Shan Chu.
         2.      It was mentioned that the regular worship of the family of
                 clan tablets that were hung in the Halls of Rebirth and
                 Longevity ( 長 生 殿 ), and the monks were expected to
                 perform such regular worship. The Halls of Rebirth and
                 Longevity is very similar to the Cheung Sang LukWai (長生
                 祿位) as recorded in the Lantern Lighting Book.
         3.      Lay ownership was especially common in South China
                 which of course included Hong Kong.              Here Holmes
                 Welch‘s footnote stated that he relied on the book Hsien-tai
                 Fo-hs ü eh (Modern Buddhism – 現 代 佛 學 ) No.4 : 27
                 (December 1950).


5.44             In respect of the last point, the Plaintiffs have provided the original
of this work of Modern Buddhism published in 1952 after the establishment of
the People‘s Republic of China and at p.27 it was said :-
                 ―問: 南方寺院或寺產,有為俗人施送者,有歸某姓或某村保護者,
                     該施送人或某姓某村人則為山主或施主, 每年須請山主或施
                     主吃齋,花費多錢,而所謂施主山主尚有權干涉寺院中人,
                     甚或驅逐僧人出寺,今已經土地改革分配後, 所謂施主山主
                     者,還有權利否?

10
     The Practice of Chinese Buddhism 1900-1950 at pp.133-134.
                                      - 65 -

              答: 所云請施主山主吃齋,及有權干涉寺事,都是陋習。土地改
                 革後,應該一律取消。‖
            ―Q:    Some of the monasteries and their properties were donated by
                   lay people, some are subject to the patronage of a certain clan
                   or village, in which case the benefactors, be it a clan, or folks
                   of a village, are either known as patrons (shan chu : 山主) or
                   donors (施主). Each year it would be necessary to treat the
                   patrons or donors to vegetarian feast, costing substantial sums.
                   The patrons or donors furthermore 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 Dr Faure. It
is quite clear that, which is implicit from the question asked, the lay donor who
established the temple the assets of the temple belonged to a certain surname or
village, and they were called Shan Chu (山主) or donor (施主).                         It was
required every 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‘s Republic
of China in 1949, this had been a bad practice and should be abolished, the
answer actually acknowledged such a practice as being common in temples of
South China (南方寺院或寺產).


5.45        After the vegetarian meal, the Tos would also contribute and pay
oil and incense money (香油錢). In absolute monetary terms, the amount of
oil and incense money was more than enough to cover the costs of the meal.
However, the payment was not for the meal. The 2nd Defendant suggested that
                                    - 66 -

since this amount was more than 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 Dian
Duan Chu (典斷出). I shall consider this in the next section.
                                                - 67 -

The Record Book and Dian Duan Chu (典斷出)

5.48               The full name of the Record Book is called : ―陶五柳堂均派三房
分理粮務嘗產登記簿‖. The translation of this title as contained in para.5.3
herein before was made 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 : “嘉儀祖所遺下典斷出
與人田園每年該收納粮米銀登記於後‖.                                             Dr Faure translated this title as
follows :
                   ―Annual tax grain and silver to be collected from land and orchards
                   assigned by mortgage for perpetuity to other people left by ancestor
                   Ka I [i.e. Ka Yi of To Ka Yi Tso] is listed below :‖11

Under this title there was an entry at page 31 (i.e. D6-1529) as follows :
                   “聖山青雲觀每年該斷田米銀七錢弍分三房均派每房收銀弍錢四
                   分。將此米銀內補長房米銀錢七百尚餘三房均收。”


11
       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.
                                      - 68 -

Dr Faure translated this passage as follows (D6-1594) :
            ―Ts‘ing Wan Koon at Tsing Shaan every year responsible for perpetual
            [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‖ (典斷出) and ―Gai Duan Tian Mai An‖ (該斷
田米銀). ‗Dian‘ has been translated by Dr Faure as ‗mortgaged‘. All parties,
however, agreed that it was not an ordinary English mortgage. It was more
akin to a Welsh mortgage whereby the mortgagee (instead of the mortgagor)
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 logical and acceptable explanation is the
one put forward by Professor Dicks.           According to him, the expression
―shuang-ch‘an‖ (嘗產,Mandarin ―chang chan‖), although sometimes translated
as meaning ancestral property, a more accurate translation would be ―property
set aside to support worship‖ or ―sacrificial property‖. The expression ‗chang‘
(嘗) in fact carries the explicit meaning of ―Autumn sacrifices to the ancestor‖.
This term is quite similar to the expression ―ji tian‖ (祭田) referred to in
Da Qing Lű Li (大清律例), and other Qing legislation as endowments for
                                    - 69 -

maintenance of religious observances. These terms are thus referable to a
form of lineage property which is conceptually distinct from other forms of
ancestral property, such as ―yi tian‖ (義田) (charity land) or ―xue tian‖ (學田)
(education land).    Although in practice, many lineages used part of their
religious endowments to support other clan activities.


5.53         The first part of the Account Book (pages 1-12) contains an
agreement entered into by the head of 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 : 今將嘉儀祖所遺錢糧的名開列於
後 (D6-1511) ―Now, the taxes left by ancestor Ka Yee are listed by name
below :‖. Then the second list begins at page 18 which says : 嘉儀祖所存產
業開列於後 ―Properties left by ancestor Ka Yee are listed below :‖. This list
ended at page 23. Thereafter 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‖
                                   - 70 -

covered by the agreement : ―…. regardless of whether it is now subsisting (i.e.
available to the Clan) or sold by way of dian (dian mai 典賣), or left
uncultivated (pao huang 拋荒), or already leased out on receipt of a premium
(shou jia pi ren 受價批人) ….‖. These 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 (清) period, and the interests to which sub-transactions gave rise.
They are as follows, namely :
       1.   There was no concept of outright ‗ownership‘ of land in
            traditional China. The first category of interests in land
            therefore comprises the varieties of what may 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 19 th Century
            China was held under what is often called the ―common
            tenure‖ (min tian 民田). It would seem safe to assume that
            all the lands in respect of which proprietary rights were
            asserted in the Record Book were held under the common
            tenure.
       2.   The second category belonged to the various secondary
            interests which could be carved 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
                                        - 71 -

             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 were also defined by such conveyancing
             devices as the legal separation of surface (地面或地皮)
             from the subsoil (地底或地骨) of the land and by various
             rules governing reversion and the rights of pre-emption. It
             may be convenient to refer to the secondary interests of this
             kind as ‗estates‘.
       3.    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 transaction in respect of land
                                   - 72 -

was an outright sale. Such a sale was called ―jue mai‖ (絕賣), literally ―a sale
which cuts off‖, or simply ―du jue‖ (杜絕 ―cutting off‖), since it permanently
severed the seller and his successors from the land. Another common name
for such a sale in some parts of China (including Guangdong and the New
Territories) was ―duan mai‖ (斷賣) which also has the literal meaning of ―a sale
which cuts off‖. These irrevocable sales were required by Qing law to contain
a particular formula of words : ―jue mai yong bu hui shi‖ (絕賣永不回贖)
meaning ―a sale which cuts off, perpetually irredeemable‖.


5.58        There seems to be little doubt that the transaction referred to at
page 65 of the Account Book, starting at the fifth line, is an example of an
irrevocable 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‖ ( 典 賣 ), often translated as ―mortgages‖.       In practice, the right of
redemption might be retained over a very long period of time.


5.60        The right to redeem land which was retained by the seller under a
revocable sale was widely known by the expression ―tiang gen‖ (田根), literally
―root of the land‖, and the right acquired by the purchaser was ―tian mian‖
(田面), ―surface of the land‖. The result of the revocable sale system was thus
the creation of two complementary but separate proprietary interests in the land
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.
                                       - 73 -

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 (良戶), ―the tax payer‖, while the
surface owner was called tian hu (佃戶), ―the cultivator‖, that is, the person in
actual possession with the right of cultivation. The category of dian mai (典賣)
often translated as mortgages.         These transactions actually differed from
mortgages in the common law sense in that the possession and enjoyment of the
land was vested in the lender, i.e. the mortgagee. This is similar to Welsh
mortgages. In many respects, ‗dian‘ (典) resembled a revocable sale. The
interests resulting 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‖ (地骨), which
             may be termed the right of receiving rent. The tenant is said to
             possess the ‗Ti P‗i‘(地皮), or right of cultivation. Constant lawsuits
             result from this double ownership and the contending interests which it
             necessarily involves.‖


5.62         Professor Dicks in his further report (the 4th Report) opined that the
possible explanation of this phrase ―gai duan tian‖ (該斷田) is that what was
absolutely or irrevocably sold in these cases were merely the surface right,
leaving the To Clan as proprietors of the subsoil right with the expectation of
                                       - 74 -

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‖ (1922-24) 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, 田底, and the surface, 田面.
            The possessor of the soil is styled a tributary, 糧戶, being held liable
            for payment of taxes on the soil. The possessor of the surface,
            though he may have the exclusive right of leasing the soil for
            cultivation, is styled a tenant, 佃戶, the same as simple lessees of the
            land who have not the above right. Registration, 過 戶 , and
            confirmation, 稅契, concern only the owner of the soil and not the
            owner of the surface, since the latter is not called on to pay taxes.
                 75. ‗In Sung-kiang and several other places the soil, 田底, is
            called 糧田, that is, land on which taxes are paid; the surface, 田面,
            cisolled 租田, that is, land for which rent is paid. If the soil and the
            surface belong to one proprietor in Sung-kiang, it is called 租糧田,
            elsewhere 糧田.
                 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
                                    - 75 -

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‘ submission that the entry at
page 31 of the Account Book indicating that the Tos were receiving ―rice silver‖
(米銀) was also consistent with the Plaintiffs‘ case that there were lands in the
form of surface interest (most likely to be in the form of right 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 ―永遠口糧‖ is not
against the Plaintiffs. After all, all these dedications to the Tso for ancestral
worship were meant to be for perpetual use also. Accordingly, it made sense
that the Tos would arrange the transfer in such a way that they, the Tos, would
remain registered with the Chinese authority for tax as an additional means of
control over the land allocated to the Kun.
                                     - 76 -



5.67         Further, the expression of ―rice silver‖ (米銀) from Tsing Wan Kun
listed in the section beginning at page 24 of the Account Book would 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 parties to
this agreement, obviously would know where the fields were and where to
locate the tenants and/or the persons liable for the rice silver. In fact, it should
be noted that in other similar entry relating to payments of rice silver (米銀),
such as the entry at page 34 by Fau Yung Tso ( 浮 翁 祖 ), there is no
identification of the fields either, yet it is difficult to accept that the Tos would
not know what land of the Fau Yung Tso in respect of which the liability for the
rice silver had arisen.


5.69         The various 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 7-10 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.
                                   - 77 -

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 (陳春亭). I shall consider this
in the next chapter.
 Chapter 6 – Chan Chun Ting (陳春亭) and Tsing Wan Kun (青雲
                                       觀)

The Origin and Changes at the Tsing Wan Kun

6.1          Two experts were called by the Plaintiffs in this respect, namely
Professor Siu Kwok-kin (蕭國健) and Dr Lai Chi-tim (黎志添). The former
has researched into the history of temples and clans in the New Territories of
Hong Kong since the 1970s with particular interest in the buildings at Tsing
Shan. He is the author of ―The Three Main Temples in Hong Kong‖ 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‘ong Geography Book
(新唐書卷), Kwangzhou Tung Hai Yi To Papers (廣州通海夷道條), it was said
that : ―Walk 200 miles from the South-east Sea can reach Tuen Mun
Mountain ...‖. From this it can be seen that Tuen Mun Mountain was well
known even from the time of the Emperor Lee of the Tong Dynasty
(AD618-907).


6.4          This Tuen Mun Mountain is also known as Pui To Shan (杯渡山).
According to Book Roll 40 of Chan Pak To‘s (陳伯陶) Tung Kwun County
Gazetteer (東莞縣志), at the time of Suan Tung (宣統), it contained the record
                                              - 79 -

the relict Pui To Nunnery (杯渡菴)1 and cited the Pui To Mountain poem of
Chang Tsi Kei (蔣之奇) of the Sung Dynasty :
                 ―杯渡菴 在東莞縣杯渡山
                 ... 廣州圖經杯渡之山在東莞屯門界三百八十里耆舊相傳昔有杯渡
                 師來居屯門山因以為名.‖
                 ―Pui To Nunery At Pui To Shan of Tung Kwun County
                 ... On the way to Guangzhou Pui To Mountain 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 the Sung Dynasty.
It was also stated in the same explanation of Tung Kwun County Gazetteer (東
莞縣志—劉大寶十二年己巳歲二月十八偽封瑞應山) that ―the so-called Tuen
Mun is Pui To Mountain, on the 18th February in the 12th Year of the Emperor
Lau Tai Bo (劉大寶) Kei Ji Year (己巳年) of 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 :
                 ―雖然,有些佛教學者認為青雲觀的前身是杯渡寺,說:  「杯渡寺在
                 道光己丑年 (1829) 改為道教道院青雲觀,壬寅年 (1842)又
                 建斗姥殿。 1 或是,如達光法師所說的,在元朝時候「普渡寺- - 即
                      」
                 杯渡寺」改為「青雲觀」  。或者,如黎曾妙繼說:「青山為一聖僧道
                 塲。惜時久荒蕪,過去山中僅有小屋一間,為一道士所遺留,
                 --------------------------

1
    For the present condition of ―Relics‖ of Pui To; see Appendix 1 — Photo 15. Inside this area,
    there is a stone inscription of Ko Shan Dai Yat (Number One Mountain — 高山第一) which was
    said to be in the hand of Han Yu (韓俞), see Appendix 1 — Photo 18.
                               - 80 -

       〈香港佛教源流〉《法相學會集刊》第三輯, 1992, 頁 5。
    高永霄:      ,



經後人修葺,名青雲觀,聖僧遺跡,反而湮沒。 2 但是,上述三者
                     」
有關杯渡寺與青雲觀的淵緣關係的觀點,都是缺乏足夠可信靠的歷
史資料根據。3
  因此,在 1829 年立青石門額以前,青雲觀是否存在,現今我
們還是沒有可靠資料能夠解答。   我們也很大懷疑杯渡寺是否就是青
雲觀的前身。勉強把二者結連起來,   並不能幫助我們更多了解青雲
觀的源起歷史;反之,較可相信是,二者原屬不同宗教傳統起源的
廟宇。
--------------------------------
2
        〈青山禪寺與顯奇上人〉
    黎曾妙繼:         ,頁 21。
3
    根據《東莞縣志》有關「杯渡菴」之記載,並沒有「青雲觀」之存在,只說:
    「擲杯入青雲」 ‖
           。


― 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)‖.
                                      - 81 -

                 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 known as Holy
Mountain (聖山) because the Buddhist Monk Pui To (杯渡) and other holy
monks stayed on the mountain. This Holy Mountain can be found depicted on
the paintings and records of the Ming and Tsing Dynasty periods. However,
the British named the mountain ―Castle Peak‖ because the top of the mountain
looks like a castle from a distance. According to Professor Siu, in the 8th Year
of the Emperor Kin Yau (乾祐) (AD955) of the Northern Han Dynasty (北漢朝)
in the Five Kingdom Spirit (五代) (AD907-979), the Magistrate of Tuen Mun
Chan Yi (陳延), ordered the statue of Pui To Buddhist Monk to be scruptured
and placed on the mountain for worshipping and offering. The aforesaid Tung
Kwun County Gazetteer went on to say :
            ―An epitaph was inscribed there. The inscription recorded that in the
            8th Year of Kuen Yau of the Northern Han Dynasty (北漢朝 AD955)
            Chan Yi (陳延), the Deputy Commander of the Frontier Gate Imperial
            Auxiliary Guards and Magistrate of the Tuen Mun Army ordered the
            statue of the Buddhist Priest Pui To to be made, and it was later placed
            on the Pui To Mountain for worshipping purpose.‖
            ―勒碑在焉榜文刻漢乾和十二年歲次甲寅,關翊衞副指揮同知屯門
            鎮檢點防遇有靖海都巡陳延,命工鐫杯渡禪師之像,充杯渡山供養
            杯渡‖

(This fortified the belief that the 佛爺 mentioned in the Lantern-lighting Book
was the 杯渡禪師 at the back of Tsing Wan Kun as opined by Professor Siu
himself.)
                                  - 82 -

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, Beijing (北
            京道教白雲觀宗元晨殿);

      2.    Dou Mou Dian, Qing Yang Gong, Chengdu (成都青陽宮斗
            姆殿);和
      3.    Dou Mou Gong, Tai Shan (泰山斗姆宮).


6.8         I also accept Dr Lai‘s opinion that from the evidence available,
namely :-
      1.    the Stone Lintel in 1829;
      2.    the Bell donated by Tam Sum Yek of Nam Hoi dated 1842;
      3.    the Memorial Stone dated 1843;
      4.    the Sung Tip involving Chan Chun Ting and the To family in
            1914;
      5.    the blue wooden placard stating ―道院重光‖ (the
            refurbishment of the Taoist Temple) in the year 1920; and
      6.    the inscription on Liu Wan‘s Grave (了幻大師傳[碑]),
            i.e. Cheung Sum Chuen of 1958.

Tsing Wan Kun has been used as a Taoist temple since at least 1829 to at least
1920. Tsing Wan Kun might have been refurbished in the 1910s.


6.9         According to Lam Tai Fui‘s (林大魁) works : The Panoramic of
the Tsing Shan Tsz (青山禪院大觀), it was said :-
                                              - 83 -

                    ―此地二十年前,一荒蕪之域耳。山路崎嶇,行人絕少。只有小屋
                    一間,雜荊榛中,即改造之青雲觀是已。住持與吾有終焉之志,乃
                    併集願力,一瓦一椽一草一木,次第徵選,至有今日杯渡亭及諸天
                    寶殿。遂先落成大雄寶殿、護法殿。‖

                    (此書乃 1927 年出版)
                    ―Twenty years ago this place was in a state of total desolation, with
                    rugged hill passes hardly ever 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)

It should be noted that this was what Lam Tai Fui (林大魁) gathered from
Cheung Shun Bak also known as Cheung Sum Chuen or his Buddhist name
Master Liu Wan (了幻大師).                      When it was said 20 years ago, it was not
exactly 20 years ago, so it must be in or about 1910s. It was said that the
beginning of establishing Tsing Shan Tsz in the form of Pui To Ting (杯渡亭)
and Heavenly Precious Hall (諸天寶殿)2,Grand Precious Hall (大雄寶殿) and
Wu Fa Dian (護法殿). Further, when Lam Tai Fui (林大魁) said that Cheung
Sum Chuen contended 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

2
    See Appendix 1 — Photos 5 to 10
                                             - 84 -

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)3. The Record
Book also recorded the obligation for the payment of rice silver (米銀) by Tsing
Wan Kun. The inference must be that the sum was paid and so there must be
someone who kept on administering or managing the place.4 In any event it is
quite clear that Chan Chun Ting was involved at the turn of the century with
Tsing Wan Kun and he was responsible for the establishment of Tsing Shan Tsz
later.


Chan Chun Ting (陳春亭)

6.10              According to the epitaph inscription of Liu Wan (了幻大師碑文),
i.e. Cheung Sum Chuen or Cheung Shun Bak, Chan Chun Ting originated from
Cheung Po (漳浦), Fujian Province (福建省), China. On his early arrival in
Hong Kong, he ran some business enterprises. He was [later] deeply devoted
to Buddhism and had established a vegetarian association (Chai T‘ong (齋堂))
in Temple Street, Yau Ma Tei (油麻地廟街)5. In the first few years of the
Republic of China (around 1910s), he had to close down all his business as a
result of financial mismanagement. With his friend Cheung Sum Chuen, (who
was a Buddhist follower), the two one day travelled to the Tsing Shan Mountain
for sightseeing and stayed at the Dou Lou Old Temple for the night.


6.11              There is no dispute that Chan Chun Ting was initially of the Taoist
faith under the set of Sin Tin Tao (先天道). There was, however, a dispute as
to whether Chan had become a monk in 1918 or in about 1921.
Dr Lai Chi Tim (whose evidence I accept) said (at Exp.1072) :



3
    光緒十八年牌扁 – See Appendix 1 — Photo 6 (i.e. Book 2 Photo 46)
4
    The meaning of rice silver (米銀) in the Record Book has been discussed in the previous Chapter.
5
    Chan‘s involvement with temples was really exceptionally prominent!
                        - 85 -

―... 按現存資料所知,陳春亭原來是信奉先天道教的。根據釋明慧
編撰的   《大嶼山志》〈釋妙參〉一條,陳春亭乃是受到釋妙參的「說
服」   ,然後從道教的先天道宗教而皈依佛教:
    又當時屯門青山寺之前身,原屬純陽仙觀,乃先天道信徒道場。
    妙參和尚乃將其男主持說服,隨諦閑法師出家,法名顯奇[即陳
    春亭]。即青山寺開山第一代祖師。17
-------------------
17
     釋明慧:     ,頁 49。
         《大嶼山志》

換而言之,在陳春亭受釋妙參影響以前,他是在青雲觀主持先天道,
召集先天道信徒。除了釋妙參,另一同時影響陳春亭作宗教改變的,
是高鶴年居士。根據他撰的《名山遊訪記》,他在 1920 年遊屯門杯
  「是時假院西里許空室一處,掩關百日度歲」 18 我們相信陳
渡山,                     。
春亭就在這時與高鶴年相識。高鶴年又記,他在 1921 年,乃勸陳
春亭投諦閑法師的寧波觀宗寺,出家,受戒,並取名顯奇。
     民十(1921)春余自滇粵歸,掃墓,邀師赴寧波,勸諦老收徒。
     此徒係香港青山陳春亭。有徒眾二、三萬人,於南洋群島。而
     非正道。余三渡重洋,化他歸正,送依諦閑法師出家,取名顯
     奇。受戒之時,寃業纏身,余代受之,後數萬徒眾皆歸正道。
     19


高鶴年謂陳春亭的     ,
        「非正道」 當是指他在青雲觀主持的先天道教。
  根據高鶴年,陳春亭是在 1921 年到寧波觀宗寺出家。但據林
大魁《青山禪院大觀》所記〈顯奇法師事略〉         ,林氏以為顯奇是在
「民國七年(1918)往寧波觀宗寺,受戒於諦閑老禪師,歸天台宗
派。 20 無論陳春亭是在 1921 年抑或 1918 年出家,事實上,這已
  」
經檢証了  〈了幻大師傳碑〉  就顯奇和尚入佛日期的記錄是錯誤和不
可信的,後者[甚至]寫著:   「老和尚七歲削髮持齋,佛緣甚廣。 21  」
    另一方面,由於陳春亭在 1921 年(我們較相信高鶴年之記錄)
才決定皈依三寶,奉持佛教,出家為僧,受戒於諦閑法師,取名顯
奇,這樣,直到他在 1914 年與陶氏家族訂立送帖的時候,其時他
所當青雲觀主持的自我宗教身份,    又怎可說是從佛教而來的呢?退
後一步來說,我們有理由相信在 1914 年前後,陳春仍然是以道教
(特別是先天道派)  的主持身份來與青雲觀和陶氏家族建立宗教關
係。換句話說,對陶氏家族而言,直到陳春亭從寧波觀宗寺出家,
然後再回來屯門青山以前,陳春亭乃是一道教道長,主持青雲觀。
1914 年送帖的字裡行間並沒有任何明示或暗示,把陳春亭理解為
一佛教和尚這身份。...
---------------------
18
     高鶴年:《名山遊訪記卷六 – 屯門杯渡山遊訪記》
                            ,頁 327。
19
     同上,頁 464。
20
     林大魁:《青山禪院大觀》,頁 11。
                          - 86 -

21
 《香港華文碑刻集 – 新界編(一),頁 74。‖
                 》

― ….Existing material indicates that CHAN Chun-ting was originally a
follower of the Sin Tin sect of Taoism. According to Sik Ming-wai‘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.
-----------------------
                                  - 87 -

17
      Sik Ming Wai‘s ―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-fui‘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.‖
                                   - 88 -

6.12        No doubt Chan was responsible for building the Three Precious
Hall also known as The Grand Precious Hall (三寶殿又名大雄寶殿) (See
Appendix 1 Photo 19) on the side of the Kun and then built the Wai Tor
Pavilion also known as Wu Fa Dian (韋陀亭又名護法殿) (See Appendix 1
Photo 20). These were probably more or less completed by 1918. He also
built a Buddhist scripture house by the Pui To Cave. He lived there and
studied Buddhism.    He then named his monastery Tsing Shan Tsz. By the
 th
9 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‖ (道院重光).                (See
Appendix 1 Photo 14 and the transcription thereafter see 14A – i.e. Book 2-45A
and 45B)


6.13        Chan Chun Ting was actually busily buying land from auction in
1918, 1919 and 1920, according to the District Office Record. It was more
likely as submitted by the Plaintiffs that he only went to become Buddhist
Monk in 1921. This belief was further fortified by the following facts :-
       1.   in a Blue Placard of 1920 Chan was addressed as ―Chan
            Chun Ting Tai To Cheung‖ (陳春亭大道長), i.e. a great
            Taoist Abbot; and
       2.   in the Buddhist Memorizing Song (念佛歌) (at 5 Exp-1323
            and 1335) of 1920, Chan was referred as Tsing Shan Old
            Man (青山陳老人) and not by any Buddhist name.

It would indicate that Chan had not become ordained as a monk until after 1920.
Up to 1920, 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.)
                                   - 89 -



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 (送帖), granted
by the To Family.   This is one of the most important documents in the centre
of the case before me. Accordingly I will consider it in detail first in the next
chapter (Chapter 7) and come back to the earlier period of between 1898 and
1914 in the following chapter (Chapter 8).
                        Chapter 7 – Sung Tip (送帖)

The Tip


7.1          The original Sung Tip is reproduced in Appendix 3 together with
three versions of English translation. The parties could not agree on any of the
three versions, namely :-
      (1)    the Court Certified translation produced by the Plaintiffs;
      (2)    the translation made by Chan Man Sing, Associate Professor
             in Translation and Chinese at the University of Hong Kong
             as produced by the 2nd Defendant; and
      (3)    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 can be seen from the original that there was no punctuation
provided in the writing. A version of Sung Tip with punctuation (at 2 Exp-484)
made by Professor Zheng (as agreed by all the parties herein) is as follows :-
             「送帖」全文標點抄錄如下:
                 「立送帖人:山主陶耀東、喜廷、殿貴、堂興暨紳等。
               願將青山杯渡寺、青雲觀廟宇送與陳春亭主持供奉神佛,陳春
             亭即補回公用銀叁百六十大員與陶姓眾等收接支用,其寺觀一概歸
             陳春亭主持司祝,任由重修整造。凡廟中該有田園物產亦歸陳春亭
             管理,每年收租納糧。陳春亭系正經熱善之人,此后陶姓不得借端
             勒索,改換主持等事,惟陳春亭亦不得恃將送帖,將寺觀司祝私推
             與別人主持。此系二家允願,秉公而行,恐口無憑,立送帖為據。
             大英一千九百一十四年九月二十一日
                                               - 91 -

                  司理陶堂興
                  紳耆耀東殿貴 陶喜廷」

Certified English Translation on Dr. Chan Man Sing‘s translation1 : -
                  ―    (Stamp Duties – Head Office)
                       We, the signatories of this Deed of Grant and Owners of the
                  Mountain, Tao Yiu 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

1
    This is the Court certified translation on a translation of Dr. Chan Man Sing produced by the
    2nd Defendant.
                                    - 92 -


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 Po Yun. This was also stated in the
―A‖ 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 words, it has been in possession of the
Abbots of the monastery, probably passing from Chan Chun Ting to Fat Ho
(筏可), Liu Wan (了幻) and eventually to Tat On (達安), Mung Sang (夢生)
and finally the 1st Defendant. The To family is no longer in possession of a
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
                                    - 93 -

was actually agreed between the To Clan and Chan Chun Ting by this document
dated 21 September 1914 of the Gregorian calendar.

The Meaning and Effects

7.6           The party, contracting with Chan Chun Ting, described themselves
as the mountain owners (山主).         This term ―mountain owner‖ (山主) has
already been discussed earlier. According to Holmes Welch, this was a term
commonly used 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 ―bad‖ 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 (陶堂興)
       2.     To Yiu Tung (陶耀東)
       3.     To Dian Kwai (陶殿貴)
       4.     To Hei Ting (陶喜廷)

To Tong Hing was described as the manager, Sze Li (司理) .

7.8           To Hei Ting belonged to and represented the eldest fong (長房) of
To Ka Yi Tso, i.e. To Chung Yan Tso. He belonged to the 18th generation.

7.9           To Tong Hing himself also represented the second fong (二房).

7.10          To Yiu Tung belonged to the third fong ( 三 房 ) and was a
representative thereof. He also belonged to the 16th generation.
                                   - 94 -

7.11         I was told that To Dian Kwai was the Chief Elder of the To Clan or
Clan Representative ( 族 長          Tseuk Cheung).        He belonged to the
16th generation. Here I accept the Plaintiffs‘ submission that he was the Clan
Representative by reason of the following pieces of evidence :-
       (a)   The note in Volume 3 of the To Chung Yau‘s Genealogy (松
             友祖家譜) (Exhibit P24) showed that Dian Kwai (殿貴) was
             the Tseuk Cheung (族長).
       (b)   The Account Book (P22) which was produced by To Tang
             Mun King, (PW21) (daughter-in-law of To Hup Lun (陶合
             能), the Tseuk Cheung (族長) of the To Clan until his death
             in 1968) clearly recorded that Dian Kwai (殿貴) was the
             Tseuk Cheung (族長) of Ng Lau T‘ong (五柳堂) (see 1st line
             of page 4 of the Account Book — Book 20). The name Ng
             Lau T‘ong (五柳堂), which is the name of the To‘s Ancestral
             Hall, was used interchangeably with the name for To Ka Yi
             Tso in the Account Book.
       (c)   Under a block Crown lease circa 1907, To Dian Kwai (陶殿
             貴) was stated as the manager of To Ng Lau T‘ong already :
             see (1D-89). It is hardly surprising that he was the Tseuk
             Cheung by 1914.


7.12         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.
                                   - 95 -

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 exactly why the three fongs of To Ka Yi Tso and the Chief Elder
together with the manager of Tsing Wan Kun signed this document. They
must have considered that they had the right to ―give‖ away Pui To Tsz (杯渡寺)
and Tsing Wan Kun (青雲觀) to Chan Chun Ting.


7.14        However, the next question is what was exactly given to Chan.
The sentence to my mind is quite clear. The two temples — Pui To Tsz (杯渡
寺) and Tsing Wan Kun (青雲觀) — were given to him so that ―he would be the
Chu Chi (主持) in charge of making offerings to or for the purposes of
worshipping the gods and Buddha‖ (―送與陳春亭主持供奉神佛‖).                        These
words ―Chu Chi‖ in the aforesaid quoted sentence can be a noun denoting a title,
that is ―the Abbot Chan Chun Ting‖ or a verb, that is ―Chan Chun Ting to
manage the worshipping affairs‖.


7.15        Be that as it may, it is quite clear from what followed that
sentence — Chan would be free to manage the produces of the fields belonging
to the temple, or what was due to the temple (―該有‖). Further, it is clear from
the following sentence that ―Chan could not give away : (a) this Sung Tip, and
(b) the two temples‘ right of management to other people, or appoint another in
his place privately‖ (―惟陳春亭亦不得恃將送帖,將寺觀司祝私推與別人主
持‖). The next sentence (―此系二家允願,秉公而行‖) means ―this must be
done by 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
                                              - 96 -

consent either. That is why it was said therein ―The To Clan shall not on any
pretext attempt to obtain money or benefits from him [Chan] by extortion, or
                                                           “
seek to replace him as the person in charge of the temple‖ ( ...此後陶姓不得借
端勒索改換主持等事”).


7.16              All in all, it is quite clear that the right that the Tos, as mountain
owner, granted to Chan was the right to be the ―chu-chi‖ (主持), but this right,
in the form of a licence, was only granted to him personally and by necessary
implication was only for life. He could not dispose of it. He could not pass it
on upon his death or by 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.2




2
    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 instrument : ―shou tsu kuan yi‖ (for
    collection of rent and management).
                                    - 97 -

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 Po 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 To Tsz and To Ka Yi 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
                                    - 98 -

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 for his own disposal. That is why people
paid to take up the office of ―Sze-Chuk‖ (司祝) or ―Chu-Chi‖ (主持) of a
temple. Sometimes such post is even auctioned as evidenced by the provisions
of the Chinese Temple Ordinance, Cap.153.             (This Ordinance will be
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.
                                             - 99 -

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. To
Tong Hing was responsible in those days of receiving the grains for the use of
Tsing Wan Kun before the Sung Tip. The chop only contained five Chinese
characters : ―聖山青雲觀‖ meaning ―Holy Mountain Tsing Wan Kun.‖


7.24              The second chop first of all appeared in one of the ten receipts3
dated the 2nd day of the 7th Moon of ―Kap Yan‖ of Republic of China (民國甲寅

3
    These rental receipts as contained in Bundle D1-141 to 148, see Appendix 10, were photostat
    copies reproduced from the original Exh.P-21 as produced by PW20 To Moon Tong (陶滿堂).
    However Exh.P-21 contained two more receipts, i.e. 10 in total, which was not included in the
    documentary bundle. (That was in spite of the then Junior Counsel‘s undertaking — see 3T-801
    D-F) They are the one dated the 23rd day of the 7th Moon in the year of Yuet Chow (乙卯年) —
    i.e.1915 and the one dated the 15th day of the 10th Moon in the year of Bing Yan (丙寅年) i.e.1926.
    They are now reproduced and the photocopies thereof are included chronologically at the new
    p.142A and p.146A for completeness sake. All these receipts 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.
                                              - 100 -

年七月初二日) i.e. 22 August 1914 4 and it was just shortly before the
Sung Tip of 21 September. It was in the form of oval shape. The Chinese
characters ―青雲觀‖ was in the middle reading from right to left whereas the
English name of ―Castle Peak New Territory5 [sic]‖ occupied the periphery
margin (see Appendix 10 and at 1D-98 and 126). It should also be noted that
this chop appeared shortly after the first chop used in 1911 or 1912, depending
on what is the interpretation of the date of the last entry where the chop
appeared in To Tong Hing‘s Grain Book. This oval chop also appeared in two
subsequent receipts issued to Lau Fook (劉福), also known as ―Ah Fook Gor‖
(亞福哥), which however was used together with the third chop except the two
receipts in 1917 and 1919 summarised as follows :
          1.      22 August 1914 at 1D-141 as the first time this chop was
                  used as aforesaid.
          2.      23 January 1915 at 1D-142.

          3.      23rd day of the 7th Moon in the year of Yuet Chow (乙卯年)
                  i.e. 1915 at 1D-142A.
          4.      14 September 1916 at 1D-143.
          5.      5 December 1917 at 1D-145.


7.25              The third chop was first found in the Rent Receipt at 1D-142
(i.e. 23 January 1915, just shortly after the Sung Tip) which was used together
with the oval chop. This chop contained the words : ―青雲觀主持陳春亭司
理鄧普緣收單‖ which means ―Receipt of Tsing Wan Kun Abbot Chan Chun
Ting and Manager Tang Po Yun‖. The third chop was found in the following
receipts (as contained in Appendix 10) namely :-


4
    All Chinese dates on the Chinese calendar have been converted to Gregorian calendar hereinafter.
5
    Apparently in the early years, New Territories was called ―New Territory‖.
                                              - 101 -

          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 Yan (丙寅)
                                                                          6
                  of Republic of China i.e. 1926 at 1D-146A.


7.26              In short, the receipt given on 22 August 1914 at 1D-141 (i.e.
shortly before the Sung Tip) did not bear the third chop which only appeared for
the first time in the receipt given at the end of that 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. 5 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. 5 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

6
    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.
                                   - 102 -

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 Po 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 chop as the other manager. Here
I accept the Plaintiffs‘ submissions that this was understandable as by virtue of
the Sung Tip, To Tong Hing as manager had already conferred on Chan Chun
Ting the right to be chu-chi (主持) and also directed that the temple and the
fields be also allocated for the management of Chan Chun Ting (in terms of
annually receiving the grains and paying the tax therefor – ―每年收租納糧‖).
To Tong Hing, therefore, was no longer involved in receiving the rental as
appeared in his own Grain 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 Po 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 Po 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
                                   - 103 -

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 Ze Kung (士恭), and Ze Kung and Choy Kwai (財貴). They
were dated 3 September 1955 and 25 October 1963 respectively.                   A
rectangular chop of four Chinese characters was used. These four characters
were : ― 監 院 性 高 ‖ (meaning ―Caretaker Abbot Sing Ko‖.                 This term
―Caretaker Abbot‖ was used by Dr Li Kwok Fu, for the abbot in charge [for the
time being]). In other words Sing Ko ―性高‖ only described himself as the
abbot in charge and not the abbot chu-chi even in the rental receipt chop
probably used by he himself.       (This will be discussed later in respect of
Sing Ko (性高) also known as Tat On (達安).)


7.31         In conclusion, one is driven to the irresistible inference from the
Sung Tip that the To Clan, as represented by its manager To Tong Hing and
                                  - 104 -

elders of the three Fongs of the To Clan (i.e. To Ka Yi Tso) was the owner of
Tsing Wan 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 Wan 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 granted to Tsing Wan
Kun by the Block Crown Leases1.


8.2             The Plaintiffs‘ case is that before 1898, lay ownership of a temple
would most obviously be manifested by the exercise of the right to appoint the
chu-chi (主持) (see Holmes Welch (supra and also at 3 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

1
 There is no evidence to this effect. In fact when the British administration started to take over the
  New Territories, the red and white deeds (紅契與白契) were gathered by them in order to ascertain
  the true owner and other tenants, sub-tenants and licensees. However, I was told that these red and
  white deeds were put in a boat which departed and sailed along Tolo Harbour. 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.
                                              - 106 -

                  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‖ (―青雲觀主持
道人‖) was rubbed out probably deliberately by someone before the Chinese
character Lap (―立‖) meaning ―made‖. Also it was plain from the Sung Tip
that Chan Chun Ting became the Chu-Chi as a result of the grant or licence
from the Tos as aforesaid.


8.4               The Plaintiffs submitted that the Inscription at Chi Hong Lin Yuen
(慈航蓮院)2 would indicate that the Tos did at one time employ a Chu-Chi at
Tsing Wan Kun. This Inscription was supported by the independent evidence
of the Government District Land Office showing that Wong Chi Lin (黃慈蓮)
was residing at ―Tsing Shan Temple‖ in July 1911 and January 1912. Since
Tsing Shan at that time had no Tsing Shan Tsz, the temple must refer to Tsing
Wan Kun.


8.5               The Inscription in Chi Hong Lin Yuen was dated 19 October 1981
concerning the involvement of Madam Wong (―黃姑‖) about 60 odd years ago,
i.e. in 1910s to about 1920, who had been ousted or evicted by Chan Chun Ting
from Tsing Shan Monastery. This Inscription however is not quite reliable and
the facts stated therein could not fit in with certain acceptable historical events.

2
    A memorial stone plaque erected therein which was discovered shortly before the second trial.
                                  - 107 -

60 odd years from 1981, there was no Tsing Shan Monastery        (青山禪院) or
Tsing Shan Tsz (青山寺) but Tsing Wan Kun (青雲觀). If this referred to the
Tsing Shan Monastery or Tsz which was completed in or 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 out by Mr Fung for the 2nd Defendant, there
was a confusion of all these names of Tsing Shan Monastery (青山禪院),Tsing
Shan Tsz (青山寺) and Tsing Wan Kun (青雲觀) in this Stone Inscription. It
might well be a confusion by those who inscribed this plaque in 1981.
However, Cheung Yuk Kiu (張玉嬌) (one of the signatories to this plaque) was
Wong‘s disciple and she should be properly informed by Madam Wong, since
Madam Wong presumably would not have confused Tsing Wan Kun with the
establishment made by Chan Chun Ting later 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,
                                      - 108 -

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 Káng 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;
                                      - 109 -

       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 even
listed in the Tung Kun Gazetteer (東莞懸誌) (supra).


8.11        If the temple was of a hereditary type and was owned by the family
or resident clergy there under category 2, it 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 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
                                         - 110 -

       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‖ (十方叢林)3 aspect of the Buddhist religion
would fall within this category. There was no evidence to show that these
religious doctrines had become part of the customary law or even customs
enforced in Tsing time in the New Territories. None of the experts called 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 (子孫叢林) or hereditary temple. After all, the rights and
power of Chan Chun Ting was a licence for life only.


8.14           Furthermore, if the temple was a hereditary temple (子孫叢林)
owned by the family of clergy there, there was no reason not to equate them as
a family 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

3
 十方叢林 or ―Forest of Ten Directions‖ would be discussed separately in Chapter 10. It is the
 2nd Defendant‘s case that Tsing Wan Kun had been run by Chan Chun Ting as a ―Forest of Ten
 Directions‖ (十方叢林) under the Buddhist religion or otherwise together with 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.
                                               - 111 -

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
                                                  st
unchallenged evidence from the 1 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.4


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.

4
    This part of the case of the 2nd Defendant will be examined in more detail in a separate chapter.
                                    - 112 -

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
                                              - 113 -

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 found. This is however not fatal to the case of the Plaintiffs. The
Grain Book was undoubtedly a record of To Tong Hing. This was produced
by his grandson To Kwai Chuen from his house. The book contained the
words ―Grain Book‖ (租簿) at the edge.5


To Tong 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
5
    This is another incident where the document was ―inherited‖ by the present solicitors from previous
    solicitors.
                                   - 114 -

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 (新屋村).


8.21         Here, it should be noted that the Crown Lease itself envisaged that
there might well be mistakes in the Schedule annexed to the Lease when the
Block Crown Lease was granted in 1905.          The body of the Lease made
allowance of future changes by envisaging 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
                                    - 115 -

that the Government must have approved the appointment of To Tong Hing as
one of the two managers of Tsing Wan Kun. Since for any one time, the
family, clan or t‘ong holding land could only have one set of managers
according to the evidence of Lam Yuet Yau (林乙酉) (see 13 July-57L & T), To
Tong Hing must 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 (陶水泰). Even though a memorial
for the appointment of To Tong Hing could not now be found, the A Rent Roll
was evidence to show that To Tong Hing must have been duly appointed and
approved as manager for all the lots. There might not be a memorial at all in
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
                                   - 116 -

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 Ha Tsuen —厦村) or elsewhere whatsoever
in the affairs of Tsing Wan Kun. Ha Tsuen is not a village close to Tsing Wan
Kun anyway.
                                   - 117 -

8.26         The correspondence disclosed that initially when the sale of land
by Tat On was exposed at the end of 1963, the Tos (and 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 Wai 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 Wai Hung to join in because
Tang Po Yun had been a manager and that it was thought that because
Tang Po Yun was a manager, the Tang Clan would have an interest. This was
the evidence of To Kam Chau (陶鑑籌) (see 3D-693O). That was why the
Chinese letter said ―originally it belonged to the Tang and the To Clans‖ (―原為
鄧陶兩族所有‖).            However in the application form at D5-1288 dated in
December 1989, the printed phrase ―this was made in accordance with the
custom of this village‖ (依照本村之習俗) was crossed out. In other words,
the application was not made according to the custom of the village.


8.29         In any event, the Tang Clan has not 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
                                    - 118 -

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 Po 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 buildings of Tsing Shan Tsz or
Tsing Shan Monastery in the next chapter.
                Chapter 9 – Chan Chun Ting (陳春亭)
                    and Tsing Shan Tsz (青山寺)

9.1           Chan Chun Ting‘s activities in purchasing landed properties in the
vicinity of Tsing Wan Kun shall be examined in more 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‘ x 450‘, 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‖ (―陳春亭係正經慈善之人‖), that
possibly Chan was associated with Tin Hau Temple at that time by his
benevolent acts therefor.
                                   - 120 -

9.3         However,     this   public   auction    was    withdrawn     because
Chan Chun Ting backed out from the application. The Assistant Land Officer
reported that 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 has now gone back on him —
leaving with a $50 deposit in the hands of Government‖. It is certain that
there was some scheme for building because at the time of application, the
villagers of Young Siu Hang [楊小坑] who objected to a building there for
reason of ―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
                                   - 121 -

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 ―Old‖ of course is descriptive
whereas the second word ―New‖ 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
                                      - 122 -

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)
                              - 123 -

     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
                                   - 124 -

             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 to Tsing Wan Kun.         This may well be the
                                   - 125 -

beginning of his association with Tsing Wan Kun when he was still a Taoist
follower.


9.10        It was shortly afterwards here on 16 January 1912 that
Madam Wong Chi Lin (黃慈蓮女士) described also as ―of Tsing Shan Temple‖
purchased 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 Tong (積或青善堂) with Madam Wong herself as the trustee.
This is a public record of the involvement and activity of Madam Wong in land
purchasing in the vicinity of Tsing Wan Kun and she gave her address at, in
effect, Tsing Wan Kun.      It is more or less the same 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 (大雄寶
殿) of Tsing Shan Tsz whereas Lot 418 became the Wu Fa Dian (護法殿) and
Lot 440 became the kitchen. That would be the completion date in or about
1918. By that time Chan became involved again in buying properties in the
vicinity in his personal name until 1920. However, one thing happened shortly
                                      - 126 -

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 :
            ―新界田土司羅                                  為
            曉諭事照得屯門青山寺乃修真之勝地理
            宜保存古跡是以本司判定陳春亭主持該
            寺俟後無論諸色人等不得藉端在此搔擾
            如敢故違者定即嚴拿究治决不寬貸特此
            告示
                                      貼青山寺
                                    S.B.C. ROSS
            一千九百一十四年             三月吉日示‖
            ―The District Land Officer of the New Territories, (Mr.) (Ross)
            For the announcement of the matters:
            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‖
                                   - 127 -

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 ―羅士‖ (according to Hong Kong Civil
Service List for 1914). It is the 1st Defendant‘s case that this piece of stone
had been erected at certain prominent place of Tsing Shan Monastery for
sometime and now it was just placed inside Kung Tak Hall (功德堂) and 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 (黃慈蓮) out (as recorded in the tablet at
Chi Hong Lin Yuen (慈航蓮院) Exh.P-18), there was no justification to
conclude that therefore the matter must have been referred to the District Office
resulting in the Ruling. It was just as probable than not (if not more 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
                             - 128 -

     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-39-54) 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 (黃姑) who
     was, according to the Chi Hong Lin Yuen‘s (慈航蓮院)
     tablet, employed by the Tos.

5.   The language used in the Ruling was alien to the usual
     language used in the communication of decisions by
     Government departments under the British administration.
                                              - 129 -

                  Instead, 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 tablet1. 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 maintenance of
                  ancient relics and yet there was reference to preservation of
                  ancient articles (保存古蹟).
          7.      The Ruling did not refer to any party having the dispute with
                  Chan Chun Ting nor did it purport to address to any person
                  or group of persons in particular.
          8.      If the Ruling were genuine, it would have formed an
                  important part of the early history and development of Tsing
                  Shan Monastery, yet, say in the work of Lam Tai Fui
                  (林大魁) in 1927, there was no mention of this Ruling or the
                  fact that in the early days Chan 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

1
    It might be usual for the period elsewhere as in the days of Exodus.
                                  - 130 -

            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 Siu : 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 to the mountain‖ (山門) of the Monastery and
            when the same was broken and removed to Mung Sang‘s
            room.   If it was inscribed from a paper notice onto the
            stone, there is no reason why this would not be preserved
            together with Sung Tip by the Monastery as an 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 place for
retreat and it is reasonable or proper to preserve relic‖ (―青山寺乃修真之勝地
                                     - 131 -

理宜保存古蹟‖), the tenor of this sentence would appear to be directed at
disorderly visitors who might cause or had caused disturbance to the temple and
damage to the ancient relic. It is probable that this Ruling was made up to
warn visitors to behave.        This would probably come at a time after
Lam Tai Fui‘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         Chan Chun Ting began to purchase properties in the surroundings
of Tsing Wan Kun again in April 1918. Three lots of land were purchased in
one go which later on became the Dormitory, the Kung Tak Hall (功德堂) and
the Dormitory for Visitors (客堂). One lot was purchased in August 1919
which later on became the Pilgrims‘ Dormitory (居士林). Another lot was
purchased in 1920 which was later on resumed by the Government with no
building works in between. Since the Grand Precious Hall (大雄寶殿) of
Tsing Shan Tsz was completed in 1918, therefore, all these lots of land
purchased in 1918, 1919 and 1920 were developed later on into various parts of
Tsing Shan Tsz.


9.21         In fact by 1920 as aforesaid, Ho Miu Ching ( 何 妙 清 ) also
purchased another piece of land in December 1920 and Cheung Sum Chuen
purchased one lot in January 1924.
                                  - 132 -

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 (不二法門) and Lot 719, the Kwun Yam Pavilion
(觀音閣). Lot 729 was purchased in March 1927 and became the Bodhisatva
Kshitigabha (菩提薩埵).


9.23        The land purchased between 1918 and 1927 became the various
parts or buildings of Tsing Shan Monastery for various purposes but their
development were later than the Grand Precious Hall (大雄寶殿). Presumably
they were developed at various times after the purchase.


9.24        How should we assess the effect of two different categories of land,
one registered in the personal name of 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 (十方叢林) as submitted by
the 2nd Defendant, or a Private Temple or Tsz Shuen Chung Lam (子孫叢林) as
submitted by the Plaintiffs and the 1st Defendant with a different emphasis or
perspective. This will be in the next chapter.
           Chapter 10 – Ten Directions Forest or Monastery
               (十方叢林 — Sap Fong Chung Lam)

10.1         Ten Directions Forest or Monastery has been explained by Mr Li
Kwok-fu (an expert specializing in the study of Buddhist culture called by the
2nd Defendant) who has given the following explanation of this term, namely :-
            ―In the minds of the Chinese, Tsz or Si is a place where the monks
            translate the sutras and pursue their studies, and naturally it must be
            public property. In Fanyi Mingyiji(翻譯名義集 Explanations on
            Translated Terms), an explanation is given for Si:
            裕師寺誥云:「寺是攝十方一切眾僧修道境界,法為待一切僧經游
            來往,受供處所,無彼無此,無主無客,僧理平等,同護佛法故。
            其中飲食眾具,悉是供十方凡聖同有,鳴鐘作法,普集僧眾,同時
            共受,與檀越作生福之田。如法及時者,皆無遮礙,是宜開廓遠意,
            除蕩鄙懷,不吝身財,護持正法。」
            The Admonition of Yu Si Tsz says : ―Si refers to the realm whereby
            Buddhist monks from all ten directions would come 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 were
            termed Shifang conglin (十方叢林,literally ten directions monastery)
            and Zisun conglin (子孫叢林,literally descendants monastery) refer
            only to different methods of succession of abbotship. That the
            monastic property belongs to the public is beyond dispute.‖
                                    - 134 -

10.2         As explained by Mr Li, ‗ten directions‘ means : East, South, West,
North, North East, South East, South West and North West, together with the
above and the below making ‗ten directions‘. In Buddhism ‗ten‘ means ‗ten
and ten‘ (十而又十) denoting forever 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 of Tsz Suen Chung Lam
(子孫叢林 – descendants monastery). As aforesaid his entitlement is derived
from Chan Chun Ting, Tat On and Mung Sang.


10.4         However, we should consider whether Tsing Wan Kun was a Ten
Directions Monastery by itself or together with the 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 3 rd Defendant.
Thus nothing should be decided or said in this judgment which otherwise would
                                     - 135 -

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 Lai Chi Tim
and Dr Zheng Qin. Dr Lai said in his report as follows :
             ― 最後還有一個重要問題需要考証,就是有關陳春亭與青雲觀維
             持道教關係的時間。一方面,按現存資料,我們不能確定陳春亭從
             那時開始移居到青雲觀,把它當作先天道道場,   以及從什麼時候他
             正式擔任主持之職。另一方面,根據他在 1914 年與陶堂興等訂立
             的送帖內容,我們有理由可作以下的判斷:
               首先,我們可憑送帖而確定陳春亭在 1914 年 9 月 21 日仍然繼
             續作為青雲觀的主持;換句話說,他應是在 1914 年以前已經開始
             這職責。
               其次,送帖內說明陶堂興等「願將青山杯渡寺青雲觀廟宇送與
             陳春亭主持供奉神佛」。從陳春亭在當時還未轉變的先天道宗教背
             景以及這句送帖文字本身的意思來看,我們亦應懷疑上述一句的文
             義是否包含(1)陳春亭是佛教法師主持的身份;(2)佛教青山寺
             已經存在;(3)杯渡寺和青雲觀是青山寺的一部份。
               倘若上述的懷疑是合理和可以接受,那表示送帖本身不能用作
             証明青雲觀及其性質(就立帖的雙方的理解而言)已經包括那僅可
             在佛教廟宇制度下才能成立的「十方道場」。‖
             ― Finally, there is one important issue to consider, namely, the time
             frame of the Taoist relationship between Chan Chun Ting and Tsing
             Wan Kun. On the one hand, with reference to the existing material,
             we cannot say for sure when Chan had moved to Tsing Wan Kun and
             used it as an establishment for Sin Tin Taoism (先天道), or since when
             he took up the office of the person-in-charge. On the other hand,
             basing on the Sung Tip (送帖) he made with To Tong Hing and others,
             we have grounds to pass the following judgments :-
                  First, relying on the Sung Tip we could say for sure that on
             21st September 1914 he was still carrying on with the office as the
             person-in-charge of Tsing Wan Kun. In other words, the time he
             started taking up this office should be sometime before 1914.
                                        - 136 -

                  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 ‗ten-directions establishment‘, something which is only
             sustainable under the system of Buddhist monasteries.‖


10.7         Further, in respect of the relationship between Tsing Wan Kun and
Tsing Shan Tsz, Dr Lai further said as follows :
             ― 其中難解的問題是,因為現存青雲觀的存在,不單單是僅餘一
             個歷史橫額,  或只是一個道觀遺跡,而是實實在在依然在觀內維持
             道教斗姆和王靈官的供奉,  以及每年繼續為陶氏家族在觀內進行點
             燈儀式。  這些歷史悠久的宗教活動都不能歸入屬於青山寺天台佛教
             宗應有的宗教主張和儀式。因此,我們可以這樣說,青雲觀那從其
             1829 年以來所可追溯和証實的道教活動和身份,直到現在,還是
             繼續傳留下來。
               雖然,青雲觀本身的道教傳統和供奉一直保存下來,但是,正
             如從上述佛教人仕就青山寺內存在青雲觀的詮釋而言          (即是,  一方
             面強調青雲觀已經是遺跡而已,另一方面,傳說釋夢生的故事,企
             圖解釋那是道士「自願將這座廟奉送給(青山寺老和尚))          」,這些
             都是屬於帶有自己利益的詮釋策略(hermeneutic strategy),目的是
             企圖把青雲道觀的存在身份和歷史更改或納入佛教青山寺的歷史
             傳統當中,以致達到緩和二者好像不相稱甚至是衝突的宗教身份。            ‖
             ― The problem remains as follows : the existence of the present
             Tsing Wan Kun is not simply based on a historical lintel or a relic of
             the building of a Taoist temple, but rather the non-stop worshipping of
             the Taoist Dou Mou and Wong Ling Koon (王靈官) which is a matter
             of fact, and the annual lantern lighting ceremonies in the Taoist temple
             by the Tos year after year. Such religious activities with such
             historical standing are not in line with, and could not have come under
             any proper doctrines or rituals of the Tin Toi (天台) Buddhism. So,
                                       - 137 -

            we may as well put it this way, the ascertainable Taoist religious
            activities and status of Tsing Wan Kun starting 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 (道士)
            volunteered the temple to (the old monk of Tsing Shan Monastery)‘.)
            Such self-interested interpretation is just a kind of hermeneutic
            strategy. The purpose was to try to change the existing status and
            history of Tsing Wan Kun and incorporate it into 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 :
            ― 從以上三條資料,我們可以推論說,基於清楚的陶氏司理人和
            田租繳納與陶氏家族,在 1914 年以前,青雲觀不會是一 為公眾利
            益而存在的宗教廟宇,也不應是屬於佛教十方叢林制的廟宇。‖
            ―From these three points, we can draw this inference : since To was
            unequivocally a manager there, and the rent of the fields were given to
            the To Clan, before 1914 Tsing 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 (先天道) which emphasised
particularly on ―Taoist planchette and incantation‖ (扶乩咒語) passed between
master and disciple. It would virtually be impossible for Chan to run Tsing
                                    - 138 -

Wan Kun as a Ten Directions Taoist temple (十方道塲) which would be
opening to the public 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 proprietary right to
the Kun. This must be in breach of his agreement with the Tos family. For
the same reason, it would not be acceptable if he had converted part of the Kun
as a dormitory (客堂) and put up two Buddhist Couplet at the entrance hall (as
evidenced 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.
                                   - 139 -

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 1 st 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
                                   - 140 -

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 Miu 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 Miu 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 likewise must fail
because the family through which he made his claim commenced from
Chan Chun Ting. In any view Chan could not claim to be a successor or
                                   - 142 -

member of the family of Taoist monks (or ‗dao-tsz‘ – 道士) residing at Tsing
Wan Kun during the Tsing 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 Chi 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
                                     - 143 -

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‘ong‖ 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 On‘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)1.
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
in the chop of Tsing Shan Monastery after the Sung Tip in 1914 as said in
Chapter 7 herein before.) Although the property held in trust was answered in
Chinese as ‗nil‘ (冇), someone filled in the English version of ‗Vol.No.X49
fol.42‘. Tat On claimed to be the grand-disciple of Tang Po Yun.           He also
asserted that Tang Po Yun had no son surviving him.                   The village
representative who supplied the information of death was one Lau Sing Fui.



1
    See Appendix 14.
                                     - 144 -

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 and Tang Po Yun had obviously descendants.
To Kan Yung and Tang Wai Hung were one of them respectively.


11.11           Tat On also filed a list of beneficiaries of Tsing Wan Kun giving
only three names, i.e. Mung Sang (夢生), Pun Hung (半空) and Pun Cho (本藻)
(and he 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.2 The printed version of the form indicated
that normally it should be within a month.           No reason could be found


2
    See Appendix 15.
                                     - 145 -

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 On‘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‘ong‖ holding the land. I have already found that Tsing
Wan Kun was owned by the Tos, then the purported approval by the District
                                   - 146 -

Officer of Tat On‘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 1 st 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.
                                   - 147 -

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 Li 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. Sik Fat 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 (監院) according to Mr Li Kwok Fu) until 1949. He was only registered
                                   - 148 -

as a manager in 1936 with the District Office as aforesaid.     The chain relied
                st
upon by the 1 Defendant of the passing of bowl and gown from Chan to
Tat On was broken right at the outset.


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 1 st 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 On‘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
 st
1 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.
                                    - 149 -

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 1 st 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 1 st 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
 nd
2 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
                                    - 151 -

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 Ka 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-to-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
                                    - 152 -

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 (羅四姑) who had to work because she
could not afford to make the full payment for participation — see Book 7,
para.1.2).


12.8         Again, the lantern-lighting ceremony performed by the Tos each
year cannot be said to be charitable. The free vegetarian meals given 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 Exp-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 Exp-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.
                                  - 153 -



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
                                               - 154 -

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 1 , the Hon Sir Shou-son 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

1
    Since the Ordinance is ambiguous in this respect, the Hansard is referred to under the limited
    allowance to do so.
                                  - 155 -

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 Miu 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.
                                   - 156 -



12.23        After the death of Cheung Sum 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 Tat-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
 nd
2 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
                                    - 157 -

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
                                                 - 158 -

the properties.           I have already decided in the last chapter that both the
    st
1 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 On‘s own application, he stated that it was in respect
of worshipping the Three Precious Buddhas (三寶佛). There was no mention
of the Goddess Dou Mou in Tsing Wan Kun at all.2 That was dated 2 July
1960 (see 1 Exh.-272). After Tat on, no manager has been appointed in his
place. Mung Sang‘s application has not been accepted by the District 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



2
    It is not that if he did, he could claim a proprietary interest in the Kun.
                                     - 159 -

should be considered in the Second Part of this trial, though the 1 st 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.
                                     - 161 -

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 Yet 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
                                  - 162 -

of the Land Officer whereby the plaintiff‘s predecessor-in-title had become
owner of one-fourth shares of the land. Hence from 1920, the land has ceased
to be t‘ong‘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‘ong‘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
                                   - 163 -

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
                                     - 164 -

               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
                                        - 165 -

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 Po 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 Po 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 Po Yun, no one
claiming through him could be said to be in adverse possession to the interest of
To Tong Hing and Tang Po 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
                                               - 166 -

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 On‘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.1


The 2nd Defendant

13.13             Section 7(2) of the Limitation Ordinance is not available to the
    nd
2 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
    nd
2 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

1
    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.
                                   - 167 -

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 1 st 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 829-830 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,
                                    - 168 -

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 2 nd 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.
                                   - 169 -

13.19        Furthermore, it is for the party‘s setting up the defence to prove it.
        nd
The 2 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 Wan 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 Chi 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.
                                      - 171 -

The 1st Defendant

14.7            Tsing Wan Kun and properties registered under its name were not
beneficially owned by :
        (i)     Chan Chun Ting;

        (ii)    Tat On;
        (iii)   Mung Sang; and/or
        (iv)    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 Wan 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
 st                                                st          nd
1 Defendant‘s Counterclaim against the 1                and 2 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 Wan 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 Wan Kun and its
properties. Her contentions in respect of limitation and laches also failed.
Her counterclaim against the Plaintiffs has to be dismissed.
                                      - 172 -

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
 nd
2 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 :-
        (1)   The Plaintiffs are entitled to their costs on :
              (a)                        their claim against the 1st , 2nd, and
                    5th Defendants,
              (b)                        the 1st Defendant‘s counterclaim,
                    and
              (c)                        the 2nd Defendant‘s counterclaim.
        (2)   The 2nd Defendant is entitled to her costs on the
              1st Defendant‘s counterclaim against her.
                                      - 173 -




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 :-
        (i)     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).
        (ii)    the Chinese Temple Committee under the CTO Cap 153
                (since Tsing Shan Monastery has been registered under this
                Ordinance).
        (iii)   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).
                                   - 174 -

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 1 st 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.
                                      - 176 -

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) : 2 July 1999
                                    - 177 -


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).
                                       - 178 -



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.
                                      - 179 -

            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.‖
                                       - 180 -

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
                                       - 181 -

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
                                    - 182 -

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
                             - 183 -

        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.)
(vi)    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                HK$3,851,682.02
            The Secretary for Home
            Affairs Incorporated on
            7.10.93
        (b) Payment into Court by               HK$99,961,641.00
            The Secretary for Home
            Affairs Incorporated on
            6.8.96
        (c) Payment into Court by              HK$239,910,458.00
            The Secretary for Home
            Affairs Incorporated on
            6.8.96
        (d) Accrued interest on (a)              HK$1,086,570.90
            as at 30.11.98
        (e) Accrued interest on (b)             HK$12,913,802.19
            as at 30.11.98
                                    - 184 -

              (f)   Accrued interest on (c)           HK$30,996,677.87
                    as at 30.11.98
                                                       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 2 nd 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 2 nd Defendant‘s
own costs and all costs she was asked to pay should be indemnified out of the
funds of Tsing Shan Monastery.
                                   - 185 -

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‘s ‗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 2 nd 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
                                           - 186 -

the Kun.       Now she failed.          The Monastery fund should be employed to
                    nd
indemnify the 2 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 basis1.‖



1
    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.
                                   - 187 -

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 2 nd
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

1.                A Photo album

2.                Map set out the various buildings and components of the
                  Tsing Shan Monastery complex and Tsing Wan Kun

3.                "Sung Tip" and its translations
                                - 188 -

4.              Tang Kai Chung v. Tang Chik Sang [1970] HKLR 276
                Mills-Owens J. at p.287-289

5.              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


7.              The inscription of the Wooden Epitaph

8.              Lantern Lighting Book of 1859 (the Ninth Year of Ham
                Fung)

9.              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

12.             ―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


Appendix 1-5
Appendix 6-8
Appendix 9-15
- 189 -

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:97
posted:7/28/2011
language:English
pages:193