Adverse possession and Tong land

In Tsang Kwong Kuen v Hau Wai Keung Gaius ([2014] HKEC 1612, CA) P claimed to have acquired title of Tong land as a result of adverse possession. The claim failed for several reasons at first instance.

One of these was the principle in Leung Kuen Fai v Tang Kwong Yu (applied in Wong Shing Chau v To Kwok Keung). There were members of the Tong whose beneficial interests had not been defeated.

In the present case, Lam V-P explained the principle thus:

‘The essence of the relevant principle is that due to the peculiar characteristic of a Tso or Tong (preserved by Chinese customary law and s 13 of the New Territories Ordinance Cap 97) with new equitable interest stemming from each new member being admitted upon birth by reason of his hereditary link with the focal ancestor, a person who is in adverse possession cannot extinguish the title of the Tso or Tong under the Limitation Ordinance unless he can establish the requisite limitation period against all the living members of the Tso or Tong.’ (at [5]).

In this appeal, the plaintiff contended that there was insufficient evidence to prove the existence of the Tong.  This failed since the oral evidence to this effect given in the first instance proceedings had not been contradicted by the plaintiff. ‘There is no requirement that a Tong must have a written document proving its nature as a hereditary Tong. ‘([9]).

The plaintiff further argued that there was insufficient evidence to show that the members said to have undefeated equitable interests really were members of the Tong. The managers relied upon their own knowledge and on informal methods of finding out about new members.  This method was adequate in the context of this type of institution:

‘First, in dealing with a customary hereditary institution like a Tong, it would not be appropriate to expect records are being kept in the same manner as in the case of a register of members for a large commercial corporation. Hau Keung’s evidence on how the list was compiled makes perfect sense in the context of an institution of this nature. It had been verified by all the managers and basically they knew each other. In any event, the presumption of regularity is applicable.’ ([12]).

Michael Lower


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