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Ip (Or Yip) Cheung (Or Chiang) Kwok v Ip Siu Bun

Judgment Cited authorities 48 Cited in Precedent Map Related
Vincent
Judgment Date15 June 1990
Subject MatterCivil Appeal
Judgement NumberCACV79/1988
CourtCourt of Appeal (Hong Kong)
CACV000079A/1988 IP (or YIP) CHEUNG (or CHIANG) KWOK v. IP SIU BUN

CACV000079A/1988
Civil Appeal
No. 79 of 1988

Headnote

(1) Consideration of:

(a) Interpretation and validity of trusts imposed in 1875 by a settlor domiciled in China on leasehold property in the Central District of Hong Kong for purposes of ancestor worship and common welfare in the settlor's village - whether such trusts void for perpetuity or valid charitable or private trusts

(b) Role of the Attorney General when representing the Crown as parens patriae and constitutional protector of property subject to charitable trusts: jurisdictional effect of Attorney General's denial of charity - whether excluding a third party from supporting charity even in defence of a claim adverse to that party's private interests.

(2) Dictum of Rhind J. in Ng Chi-fong v. Hui Ho Pui-fun [1987]HKLR 462 at p.482 (refusing to entertain submissions on the subtleties of meaning of Chinese characters as an aid to the construction of an agreed translation of a will written in Chinese characters) approved and applied in the case of a written declaration of trust made inter vivos.

IN THE COURT OF APPEAL Civil Appeal
No. 79 of 1988

BETWEEN

IP (or Yip) CHEUNG (or CHIANG) KWOK (also known as DAVID IP or YIP for himself and as the person appointed to represent the Estate of Ip Koo Chi, deceased and as the Administrator of the said Estate pendente lite Plaintiff
(1st Respondent)

AND
IP SIU BUN 1st Defendant
(2nd Respondent)
IP CHEUNG KIT YEE 2nd Defendant
(3rd Respondent)
IP SIU KONG (or KWONG) 3rd Defendant
SIN HUA BANK TRUSTEE LIMITED 4th Defendant
(Appellant)
(by original action)

AND BETWEEN

SIN HUA BANK TRUSTEE LIMITED Plaintiff
(Appellant)

AND
IP (or Yip) CHEUNG (or CHIANG) KWOK (also known as DAVID IP or YIP) for himself and as the Person appointed to represent the Estate of Ip Koo Chi. deceased and as the Administrator of the said Estate pendente lite 1st Defendant
(1st Respondent)
THE ATTORNEY GENERAL 2nd Defendant
(4th Respondent)
IP SIU BUN 3rd Defendant
(2nd Respondent)

(by counterclaim)
-----------------------

Coram: Hon. Sir Derek Cons, V.-P., Kempster & Clough, JJ.A.

Dates of hearing: 23 - 26; 30 - 31 May, 1989; 1 - 2 June, 1989; 3 - 6; 10 - 13; 16 - 18; 25 - 27; 30 - 31 October, 1989; 2 - 3; 6 - 9 November, 1989; 8 - 11 and 15 - 17 May 1990

Date of handing down of judgment: 15 June 1990

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JUDGMENT ON SUBSTANTIVE ISSUES

---------------------------------------------------------

Clough, J.A.:

1. In judgments delivered and handed down respectively on the 25th October and the 28th November 1989 we dealt with preliminary issues arising on this appeal. We now deal with the substantive issues. A general outline of the procedural events and the pleaded issues in this action is contained in my judgment delivered on the 25th October 1989.

2. This must have been a difficult case to try. It began with the pleadings and representation of interests in a state of disarray. The Bank and the first defendant did not stand together as trustee defendants and the first defendant had refused to join as co-plaintiff with the Bank in its counterclaim to which he had therefore been made a defendant.

3. At the trial and on appeal the Bank sought to uphold the validity of the trusts upon which it claimed to hold the trust property by contending, in substance, that the trusts were charitable trusts, (this was also the Bank's contention in the 1977 action) or, alternatively, valid private trusts. At both stages of these proceedings the plaintiff contended that the trusts were perpetuitous and non-charitable and therefore void.

4. It was common ground between the plaintiff and the Bank on appeal that the trust properties were held by the Bank and the first defendant upon trusts declared in rules made and signed on the 31st December 1875 by the settlor (Ip Koo Chi) who had (as the Bank admitted on appeal but not at the trial) procured the purchase of the trust property with his own moneys and the assignment of the property to trustees by two Assignments on the 28th September 1875. The trustees (Yip On and Yip Yuen) had taken No. 152 Queen's Road under one of the Assignments as "Trustees of the Yip Cheong Kwong Tong Loan Association for and on behalf of the said Association". They had taken Nos. 154 and 156 Queen's Road under the other Assignments as "Trustees of the Tung Yun Sheen Tong Loan Association for and on behalf of the said association".

5. The first defendant's position shifted during the proceedings. He had originally been represented by counsel who had settled an amended defence on behalf of the first, second and third defendants. In that defence it was denied that the settlor had any beneficial interest (by way of resulting trust or otherwise) in the trust properties. It was pleaded that the 1875 Assignments had been made to Yip On and Yip Yuen, in respect of No. 152 as trustees for the "Yip Cheong Kwong (or Kong) Tong", and in respect of Nos. 154 and 156 as trustees for the "Tung Yun Sheen Tong". These tongs were alleged, insofar as might be necessary, to be charitable trusts. It was pleaded that the tongs in question were situate in Gut Ta (also known as Gut Ling or Gut Ta Brigade) in China and were entitled under Chinese law to hold land, wherever situated.

6. Reliance was placed in this pleading on a Judicial Pronouncement made on the 18th May 1978 by the Middle Rank People's Court of Fu Shan District, Kwantung Province holding that Yip Cheong Kwong Tong (also known as Tun Sheen Tong) and Tun Yun Sheen Tong were community welfare organisations of Gut Ta Brigade and entitled to the trust properties. It was further pleaded inter alia that in so far as the trusts were for the benefit of the members of the Gut Ta Brigade, the beneficial interest in the trust properties was vested in the members (for whom the properties were held by the first defendant and the Bank as trustees) to be dealt with in accordance with the rules of the two tongs.

7. I have dealt, in my judgment delivered on the 25th October 1989, with the outcome of the attempt of the first defendant to plead to the Bank's counterclaim. In the 1977 action (which had been conducted by two officers of the Bank's parent company as representatives of the Yip Cheong Kwong Tong and Tung Yun Sheen Tong) the first defendant had filed a defence settled by counsel which did not admit the claim of the tongs to be charities. The defence had denied that either of the tongs were beneficiaries under the trusts affecting the trust properties. It was pleaded that the beneficiaries named in the Assignments were the Ip Cheong Kong Tong Loan Association and the Tung Yun Sheen Tong Loan Association. The first defendant also made an affidavit in the 1977 action deposing to the effect that his ancestors had provided the funds for the purchase of the trust properties.

8. However, as indicated in my earlier judgment, in the process of settling the 1977 action the first defendant had given undertakings confirming the beneficial interest of the two tongs in the trust property. It was for this reason that he felt inhibited from pleading adversely to the Bank's Counterclaim in the present action. Any inhibition of the first defendant in the conduct of his case in person at the trial was, however, lifted on Day 16 when as counsel informed this court, the judge released him from his undertaking.

9. By Day 16 the plaintiff's Witnesses had been called and the first defendant had been called upon to make his defence. He gave evidence and called one witness, Mr. Ip Tong Chiu, whose evidence was interposed during the first defendant's evidence. By the end of the first defendant's evidence on Day 20 and at the conclusion of his submissions on Day 30 it was clear that he was contending inter alia that the trust property was not at any time the property of the settlor but that it was always the property of the Ip Cheung Kwong Tong and that he had an interest in that tong. He had applied unsuccessfully on Day 18 and Day 20 for a representation order for the members of the Ip Cheung Kwong Tong. Later on Day 20 the judge made an order (which Mr. Ching for the Bank had opposed appointing the first defendant to represent the members of all three relevant tongs, but the first defendant objected to this subsequently on the same day. The sequel was that the judge appointed him on Day 20 (the 13th April 1988) to represent all persons for the time being claiming to be members of the Ip Cheong Kong Tong.

10. The judge summarised the first defendant's ultimate case in the following passage in his judgment:

"The first defendant, as well as being a trustee, claims that he is or may be beneficially interested in the properties. He does not claim to be a direct descendant of the settlor, but he does claim to be a descendant of one Ip Sze-shing (of whom I shall have more to say later), a common ancestor of the plaintiff and of the first defendant. In 1875 there was already in existence an ancestral fund founded for the veneration of ancestors of the Ip Clan beginning with Ip Sze-shing and known as Ip Cheong Kwong Tong. The first defendant, on the footing that the Ip Cheong Kwong Tong has or may have an interest in the properties or one or some of them, claims to be one of the persons interested in the Ip Cheong Kwong Tong, and accordingly, in the course of the trial, on 13th April 1988, I appointed the first defendant to represent, for the purposes of these proceedings, all persons for the time being claiming to be members for...

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