Evidence concerning membership and customs of a Tso

In the context of an indigenous clan in the New Territories, an orally transmitted history or a history recorded in a genealogy is good evidence concerning the membership and customs of a Tso.

Kan Yam Yau v Kan Yook Tim ([2008] HKEC 1019, CA) concerned a dispute between as to whether two of the fongs of a Tso as originally constituted had left the Tso (at the time when they moved to a village away from the ancestral hall) so that they were no longer members of the Tso. In deciding that they had ceased to be members and to be entitled to participate in management, the Court of Appeal looked at evidence from the relatively recent past (around the late 1970s). The most decisive evidence as to the facts and the customs of the Tso, however, was to be found in two genealogies of the clan. There is an important statement as to the court’s approach to findings of fact in paragraph 22 of the judgment. This statement concludes:

‘In the context of an indigenous clan in the New Territories, the Court also expects its history to be passed down from generation to generation by way of oral transmission or recorded in documents such as a genealogy. ‘ (per Hon Cheung JA).

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