To Kan Chi And Others v Pui Man Yau And Others

CACV 32/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 32 OF 1999

(ON APPEAL FROM HCMP 562/1992 and 2084/1994)

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J U D G M E N T

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Leong JA (delivering the judgment of the Court) :

Introduction

1. By an action commenced on 3 April 1996 the 1st plaintiffs To Kan Chi (陶根池), 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) and the 2nd plaintiffs To Cheong Lam (陶昌林), 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 in five Tuen Mun (屯門) villages namely, 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 Village (藍地新村) claimed, inter alias, a declaration that they were the beneficial owners of the various pieces of land in DD130, 131, 132 and 138 registered in the name of Tsing Wan Kun (青雲觀), in particular, lot 416 and House lots 1, 2 & 3 in DD 131, where the temple Tsing Wan Kun and its surrounding gardens are situated (the properties). The plaintiffs claimed that Tsing Wan Kun was the collective name used by the To Ka Yi Tso and/or the To Clan to hold the properties and the income therefrom for the purpose of constructing and maintaining the Tsing Wan Kun temple and running it as a private or clan temple for the benefit of the To Ka Yi Tso and/or the member of the To Clan.

2. The 2nd defendant, the Secretary for Justice, in exercise of her role as parens patriae for charity denied the properties were beneficially owned by the plaintiffs but claimed they were beneficially owned by charity. The 2nd defendant maintained that Tsing Wan Kun was a name under which the properties were registered and it was a religious tong or charitable institution holding the properties for charitable purpose and counterclaimed for a declaration to that effect.

3. On 26 November 1998 Yam J, in his judgment, declared that the plaintiffs were the beneficial owners of Tsing Wan Kun and all the properties registered under its name and that Tsing Wan Kun and its properties were not a charitable and/or religious trust and/or tong and further that the Chinese Temple Ordinance, Cap. 153 was not applicable to Tsing Wan Kun. The counterclaim of the Secretary for Justice in respect of the properties was dismissed.

4. The present appeal is by the 2nd defendant, the Secretary for Justice, against the judgment of Yam J.

5. The background, the legal propositions and most of the evidence of the case are not challenged and may be summarised as follows:

Background

6. Within a complex commonly known as the Tsing Shan Monastery (青山禪院) are the Tsing Wan Kun temple (青雲觀) and the Tsing Shan Tsz (青山寺), the former is a Taoist temple while the latter is a Buddhist monastery. The To Clan (陶氏家族) was one of the earliest settlers in the Tuen Mun area in the New Territories. To Ka Yi (陶嘉儀) of the 4th generation of the Tos Clan who died in 1454 was one of their forefathers settled in Tuen Mun and the To Ka Yi Tso (陶嘉儀祖) represented by the 1st plaintiffs carried his name. In the ancestral hall of Tsing Shan Tsz, there is still a wooden epitaph or ancestral tablet (木神主牌) carrying the name of To Ka Yi with the description "the tablet of the founder and donor of land to the temple Mr To Ka Yi (建廟施田陶公嘉儀先生神位). Other members of the later generations of the To Clan included in the epitaph were To Ting Kui (陶挺舉), To Ting Shuen (陶挺選) and To Sik Kwong alias To Wai Fong (陶錫光又名陶懷芳). To Wai Fong died in 1880 some four hundred years after To Ka Yi's death. Thus the tablet could not have been created earlier than To Wai Fong's death in 1880.

Tsing Wan Kun Temple

7. There is no direct evidence as to who exactly built the Tsing Wan Kun temple and when it was first built; neither is there direct evidence to show who were the owners through the ages. In 1661, the Tsing Emperor Kang Xi (康熙) by decree ordered coastal settlements to withdraw 50 miles inland. If To Ka Yi was the one who first built the temple in the 15th century, the original temple could have been demolished pursuant to the decree and the present one was rebuilt years later. There are various relics in the temple bearing dates which could cast light on the likely time when the present temple was built. The stone lintel at the entrance to the temple has the date of the 9th year of Dao Guang (道光九年) i.e. 1829. A bell donated to the temple has the date of the 22nd year of Dao Guang (道光二十二年) i.e. 1842, and the date inscribed on a memorial stone in the temple commemorating donors to the temple is the 23rd year of Dao Guang (道光二十三年) i.e. 1843. There are nine donors of "fields" or "field rentals" named on this stone. Seven of them including To Ka Yi (陶嘉儀祖) and To Sik Kwong (陶錫光) are of the To Clan. The remaining two are not Tos and they are Fan Kwong Chiu (樊廣昭) and Tang Yuen Wing (鄧遠榮). While these relics do not show when the temple was built, they at least show that the To Clan had been involved in the temple as early as the 19th Century, if not earlier. The memorial stone also contained references to donations made from fields of Tai Lang Shui (大冷水), Siu Lang Shui (小冷水) and Yeung Siu Hang (楊小坑) but these are names of places in the Tuen Mun area and not identifiable with any specific fields from which the donations came. Some of the entries in the Grain Book (糧簿) of To Tong Hing show that rental had come from fields of the To Clan in these places, but these are of little significance in showing the ownership of Tsing Wan Kun.

Lantern Lighting Ceremony

8. The To Clan has a tradition of performing the Lantern Lighting Ceremony (點燈儀節) each year on the 15th day of the first month of the lunar calendar. This is a To Clan activity to celebrate the extension of the Clan and would be carried out whenever a male descendant is born. The ceremony is a precondition for the new born male descendant to be recognised as a member of the To Clan. The procedure for this ceremony is set out in the Lantern Lighting Book (瓜瓞綿長) which has records dating back to 9th year of (Ham Fung) 1859 (咸豐九年) of such ceremonies. According to this book, when the ceremony takes place, lanterns would be hung in the ancestral hall (祠堂), Hou Kwok Temple (口角廟) Ta Tsuen Temple (大村廟) and Tsing Shan (青山), (the judge regarded this to mean Tsing Wan Kun temple (青雲觀) because Tsing Shan Tsz (青山寺) was not built until many years later). In so far as Tsing Shan (青山) is concerned, the octagonal lantern (八角燈) would be hung in the Main Hall (大殿正處列聖前), one small lanternt (三元燈) each would be hung before the Saints at the Entrance Hall (頭門列聖前), the God of the Earth (石玄舍), the Buddha (佛爺) and the Miscellaneous Shrine (雜壇). Five small lanterns would be hung in the Taoist Tso Tong Ancestral Hall (道家祖堂長生祿位前). The book records also show that the To Clan had continued to perform the ceremony on many occasions since 1859. Traditionally, the person in charge of Tsing Wan Kun would provide vegetarian meals to the To Clan when they came to the Tsing Wan Kun temple to perform this ceremony and this was also the case when they came to perform the ceremony in 1996. But whether it was a free meal is an issue in this case.

Land ownership after the Convention of Peking 1898

9. Following the Convention of Peking 1898, the British Administration published in 1900 a report by the Colonial Secretary Mr Stewart Lockhart on the New Territories. This report provides useful information on land holding in the New Territories prior to 1898, particularly on the various tenures of land holding. The report states that in addition to land being owned by clans or private families and individuals which could be sold, mortgaged or settled upon specific trusts, there were Ancestral Land "Sheung Tin" (嘗田) which was land set aside for ancestral worship and the income from it was devoted to the upkeep of the ancestral temple and to provide for assistance to and generally for the benefit of members of the clan; Temple Land "Miu Tin" (廟田) which was land devoted to the support and upkeep of a temple dedicated to the service of some specially selected idol in the name of which the land was held and some of those who originally subscribed towards the erection of the temple or their descendants acted as trustees and kept account of the income and expenses; and Land held by Association "Ui Tin" (會田) which was land purchased with contributions by members of an association of villagers the income of which might be used for the burial of a member or to assist a member to emigrate or for such other good object as the members desired.

10. The report also detailed the steps taken out...