Archive for the ‘Tso’ Category

Adverse possession on behalf of a tso

May 9, 2012

A Tso is capable of being in adverse possession.

In Chow Tin Sang v Citehero International Ltd ([2012] HKEC 611) both the plaintiff and the defendant had been registered as having title to a plot of land near the centre of Sai Kung (‘the Land’). It was clear, however, that the defendant had the formal legal title and the plaintiff did not. The plaintiff based his claim, on behalf of a Tso, on adverse possession relying on the use that his family had made of the land since (to his personal knowledge) 1920. The court accepted that there had been the necessary factual possession. Enclosure was evidence here of the necessary intention to possess. Some of the boundaries were marked off by natural features and walls had been constructed along others. The fact that the walls could be surmounted readily easily was irrelevant:

‘the whole surroundings give me the impression that the Land is the backyard of the plaintiff’s house. That should also be the perception to a reasonable person’. (per Deputy Judge David Lok at [83]).

A Tso is capable of being an adverse possessor ([90]).

Evidence concerning membership and customs of a Tso

January 18, 2012

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).

Consent of the heads of fongs signifies the consent of all of the members

November 18, 2011

In Tang Kap Wing Tso v Tang Leuk Tso ([2011] 4 HKLRD 132, CA) Tang Jr (one of two managers of TKW Tso) purported to transfer to Tang Sr TKW Tso’s shares in TL Tso. The other manager of TKW Tso was Tang Jr’s mother. The other members of TKW Tso were Tang Jr’s sons. There was only one fong in the TKW Tso and Tang Jr was the head of it. It was argued that the transfer of the shares to Tang Sr was invalid because not all members of the Tso had consented. It was held that customary law in Hong Kong required only the consent of the heads of the fongs. Unless, perhaps, there were active dissent by any other member that would amount to the consent of all of the members. Here Tang Jr, the head of the only fong, had given his consent. Hence the transaction was valid. In any event, Tang Jr’s mother had authorised him to act on her behalf as manager. Given that both managers were parties to the transfer of the shares, the managers of TL Tso were under no obligation to inquire about the internal affairs of the TKW Tso.

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.