Posts Tagged ‘Tong’

Removal of the duty manager of a tso or t’ong

December 3, 2016

In Tang Fu Sun v Tang Lik Yuen ([2016] 4 HKLRD 608) the managers of two Chinese customary trusts sought declarations that the duty manager of the trusts (the same person being duty manager of both trusts) had been validly removed from office by a meeting of the general assembly of the descendants in January 2006. The defendant, the duty manager, argued that this resolution was ineffective since: (a) the proposed resolution to remove him had not appeared on the agenda for the meeting; and (b) that the customs of the trusts required resolutions of the assembly to be passed unanimously. The defendant argued that neither of these conditions for his valid removal had been satisfied. The plaintiffs were granted the declarations that they sought. Based on the law of meetings, there was no requirement to place the proposal to remove the duty manager on the agenda for the meeting since this amounted to a proposal to dismiss an employee and did not affect the interests of members as such. Nor was the defendant able to establish the existence of a custom that required decisions of the assembly to be reached unanimously.

Anthony To J. commented on the status of a duty manager. Unlike the manager, which was a requirement of section 15 of the New Territories Ordinance, there was no legal requirement to have a duty manager and the duty manager had the status of an employee. In the absence of some custom to the contrary, it was reasonable to think that the manager had the power to appoint and remove the duty manager since the manager would be legally liable for the duty manager’s actions or omissions. The managers’ evidence that the customs of the trusts gave them power to appoint and remove the duty manager as an exercise of their own authority was inherently reasonable and, for that reason, plausible. Since the duty manager was also a member of the trusts, a requirement for unanimity would amount to a requirement that he vote for his own removal; this would be an absurd requirement. Given that the assembly was at the heart of the governance of the trusts, it too had the power to remove the duty manager ([51]).

Michael Lower

Adverse possession and Tong land

October 13, 2014

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

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