Archive for the ‘Tong’ Category

Tong land and the Limitation Ordinance

December 7, 2013

Tsang Kwong Kuen v Hau Wai Keung Gaius ([2013] HKEC 1920, CFI) concerned an unsuccessful adverse possession claim to Tong land. The court found that the plaintiff had not been in possession and this was really the end of the matter. In any event, the judgment contained a reminder that a new equitable interest is created with the birth of each member of a Tong. As a result, the limitation period runs anew when that member attains his majority ([50]). The claim also failed on this basis ([51]).

Michael Lower

Adverse possession: land owned by Tong but no evidence of the birth of a new member

July 2, 2013

In Wealth Hill International Limited v Wong Kwan Siu ([2013] HKEC 838, CFI) a Tong was the registered owner of land. W had been in adverse possession for the necessary twenty year period. If a new member of the Tong had had been born, the limitation period would have started to run again ([72]). Here, however, there was no evidence of such a birth. W had defeated the Tong‘s title.

Michael Lower

Perfecting transfer of land to a tong

February 22, 2011

Conveying land into the name of a tong, including the name of a sze lei (trustee or manager) in the conveyance, registering the conveyance and a list of members of the tong are effective steps to transfer land to a tong. The effect is to subject the property to a trust the beneficiaries of which are living male descendants of the relevant ancestor from time to time.

In Chu Tak-Hing v Chu Chan Cheung-Ki ([1968] HKLR 542) Chu Tak-Hing had various parcels of  land transferred to various aliases of his. In each case he specified the name of somebody as a sze lei (trustee or manager). These conveyances were registered. Chu Tak-Hing also registered lists of members of the relevant Tongs. It was held that the effect was to perfect the transfer of land to the Tongs. The land was no longer the private property of Chu Tak-Hing and did not form part of his estate. Conveying land into the name of a tong, including the name of a sze lei (trustee or manager) in the conveyance, registering the conveyance and a list of members of the tong are effective steps to transfer land to a tong. The effect is to subject the property to a trust the beneficiaries of which are living male descendants of the relevant ancestor from time to time. This judgment is interesting for its explicit attention to the relationship between Chinese customary law and section 15 of the New Territories Ordinance. It also considers the way of perfecting a transfer of land to a Tong and the effect of doing so.

Tso and Tong are not legal entities

February 21, 2011

A Tso and a Tong are not legal entities and proceedings cannot be brought in their names.

In Tang Yau Yi Tong v Tang Mou Shau Tso ([1996] 2 HKLR 212, CA) three individuals had made a gift of land in Tai Po to a Tong. It was accepted that one of the individuals had not been the beneficial owner of the property but had held it as representative of a Tso. The question was whether the relevant beneficial interest belonged to the the Tso or to the personal representatives of the transferor. The members of the Tso objected to a sale of the land by the Tong and could only do so if they had a beneficial interest. It was held that the beneficial interest belonged to the Tso. The Court of Appeal pointed out that Tsos and Tongs are not legal entities and proceedings cannot be brought in their name.

Partition of Tso lands

February 20, 2011

The provision in the New Territories Ordinance giving the court power to recognise Chinese custom and customary law affecting land in the New Territories is mandatory. Accordingly, the law of partition and the rule against perpetuities do not apply to such land.

Tang Kai-Chung v Tang Chik-Shang ([1970] HKLR 276) was an action for partition of Tso lands. The six sons of a focal ancestor formed a Tso after their father’s death. The descendants of each son formed a Tong. The Tso land was divided into nine portions. Six of these were managed on behalf of the Tongs. Management of each portion rotated amongst the six Tongs. The income from the land was divided among the Tong members. The managers of the smaller Tongs brought an action for the partition of the Tso land so as to create six equally sized portions. Each Tong would then have its own portion. This application was resisted by the managers of the larger Tongs. They argued that the English law of partition (which was the law then being relied on as the Partition Ordinance came into effect after proceedings had been commenced) was inapplicable since it was inconsistent with Chinese customary law. Section 13 of the New Territories Ordinance (Cap 97) gave the court power to recognise and enforce any Chinese custom or customary right affecting land in the New Territories. Mills-Owen J held that section 13 was mandatory. It meant that the English law of partition and the rule against perpetuities did not apply to Tso land in the New Territories. The application for partition failed.