Report of the Working Group on the New Territories Ordinance (Cap. 97) April 1988

Report of the Working Group on the New Territories Ordinance (Cap. 97) April 1988

The Working Group wishes to express its sincere thanks to the following people who pro- vided valuable advice, views and information:

Sir David Akers-Jones K.B.E., C.M.G., JP; Dr Hugh Baker, Reader in Chinese at the Uni- versity of London; Mr Chan Lau-fong, Chairman of the Tsuen Wan Rural Committee; Mr Chan Po-fong, Member of the Tsuen Wan Rural Committee; Mr Chan Wing-hing, Vice- Chairman of Tuen Mun Rural Committee; Mr Cheung Che-fan, M.B.E., JP of Lam Tsuen, Tai Po; Mr Chung Chi-fei, Village Representative (VR) of Chung Uk Tsuen, Tuen Mun; Dr J. W. Hayes, I.S.O., JP; Dr K. H. Hwang; Mr Lau Sze-chuen, VR of Lung Kwu Taan, Tuen Mun; The Hon Lau Wong-fat, M.B.E. JP, Chairman of the Heung Yee Kuk; Mr Lee Kan- ching, Villager of High Island Reservoir Resite Village, Sai Kung; Mr Li Mo, VR of Tseng Tau Tsuen, Tuen Mun; Mr Liu Ching-leung, JP, Vice-Chairman of the Heung Yee Kuk; Mr Liu Koon-shing, VR of Sheung Yuen Ling, New Kowloon; Mr Anthony F. Neoh; Rev. Sik Tai Kong, Director of the Hong Kong Buddhist Association; Mr Tang Yat, Village Elder of Cha Kwo Ling, New Kowloon; Mr To Fuk-tim, Village Elder of Tsing Chuen Wai, Tuen Mun; Mr To Kam-chow, Vice-Chairman of the Tuen Mun Rural Committee; Mr Tsang Yung-loi, Vil- lager of Tai Mong Tsai Village, Sai Kung; Village Elders of Nga Tsin Wai, New Kowloon; Mr Wan Hon-cheung, Villager of Tai Po Tsai Village, Sai Kung; Mr Wai Hon-leung, Mem- ber of the Sha Tin Rural Committee; Professor Xie Huai-shi, Institute of Legal Research in China; Mr Yip Sung, Village Elder of Lei Yue Mun Village, New Kowloon; Professor Zhang Jin-fan, China University of Political Science and Law.

 

Section

Acknowledgements

Contents

Page

Inside cover

Report

Cap. I: Introduction

2

Cap. II: Policy

5

Cap. III: Revision of the N.T.O.

6

Cap. IV: Chinese custom

concerning land

9

Cap. V: Summary of

recommendations

11

Annex 1

Proposed changes to the

New Territories Ordinance

13

Annex 2

What constitutes "Chinese

Custom and Customary Right"

in S. 13 of the Ordinance?

25

Annex 3

Customary Land Trusts in

the New Territories

31

Annex 4

Customary succession to land in the New Territories

49

Annex 5

Bibliography

56

The New Territories Ordinance (Cap. 97)

61

1

Chapter I: Introduction

The Working Group on the New Territories Ordinance (NTO) was set up by the Re- gional Secretary (New Territories) on 4 October 1986. It held its first meeting on 19 February 1987. The Group comprises the following members :-

2.

are -

Mr Stephen Selby

Ms Grace Lui

Mr Johnny Ho

Mr Chris Robinson

Mr Joseph Lam

Mr Hung Siu-keung

Mr Thomas Chan

Mr Samuel Hui

Mr Chris Williams

Ms Ng Mee-kam

City & New Territories Administration, Convenor

City & New Territories Administration

City & New Territories Administration

Registrar General Department (Land Office)

Buildings & Lands Dept.

Buildings & Lands Dept.

Corruption Prevention Dept., ICAC (19/2/1987 - 11/3/1987)

Corruption Prevention Dept., ICAC (23/3/1987 - 24/3/1988)

City & New Territories Administration, Secretary (19/2/1987 - 19/10/1987) City & New Territories Administration, Secretary (19/10/1987 - 24/3/1988)

The reasons why it was necessary to review the contents and application of the NTO

2

(1)

The present NTO contains wording which it has become difficult to interpret and is inconsistent with the applica- tion of other Ordinances.

(2)

(3)

(4)

(5)

(6)

Many conditions in the New Territories have changed, and as a result certain provisions in the present NTO serve no useful purpose, have become outmoded, inap- propriate or difficult to apply.

The value of land in the New Territories has become such that it is now necessary to address certain possible abuses which were not previously envisaged.

Members of the Judiciary have drawn the Government's attention to illogicalities in the present Ordinance which are causing repeated applications to the Courts, and which could be removed through suitable revision to the Ordinance.

It was felt that not enough material about Chinese cus- tom and customary right was available in a m which could be of practical use to District Officers and the Courts.

The Regional Secretary (New Territories) felt that there was a need to examine Chinese custom and customary

right in its present form, as applied through the Ordi- nance, and assess its relevance to New Territories soci- ety in the present day.

3. The Working Group held 15 meetings between 19 February 1987 and 22 March 1988. During that period, the Group thoroughly studied the existing New Territories Ordinance and, taking into account the views of District Officers, submissions from legal practitioners, the Judiciary and the public, decided upon a number of recommendations on how the Ordinance should be amended. The Group also devoted six months to an in-depth study of Chinese cus- tom and customary right relevant to land in the New Territories. In addition to these general tasks, the Group addressed the following specific tasks set by the Regional Secretary (N.T.) :-

(a)

To advise on changes to the NTO and to statutory forms;

(b)

To advise on whether application of the NTO is con- fined to NT indigenous villagers only.

(c)

To review procedures and draw up an 'action check list' for staff to follow;

(d)

(e)

To advise on training and refresher courses for CNTA staff in connection with their duties and powers exer- cised under the NTO;

To advise on whether preparation of a staff manual would be helpful;

(f)

To identify persons who are known locally as 'expert witnesses'.

Working method

4. Between February and July 1987, the Group studied the Ordinance and arrived at con- clusions on the need for its revision. This work was carried out through a series of discus- sions to which, where necessary, experienced people from outside the Group were invited. In the course of these studies, the Group noted advice and views from the Judiciary, N. T. Dis- trict Officers, people in legal practice in Hong Kong and the public. This resulted in the preparation of an interim report which was submitted to the RS(NT) on 23 September 1987.

5.

From July 1987 to March 1988, the Working Group changed its method of work to fa- cilitate a study of Chinese custom and customary right. During the latter period, less weight was put on meetings in favour of direct research and fieldwork. Village elders from different parts of the New Territories and New Kowloon were interviewed, experts on Chinese cus- tomary law, history and sociology were consulted and a number of written sources were stud- ied. Information relevant to the New Territories was finally put together into working papers to be considered at meetings and canvassed among known experts for correction and further

3

advice. The Working Group acted upon views offered by the Lands and Works Working

Group of OMELCO on the urgency of completing the task and of obtaining views from the public: members of the Heung Yee Kuk and rural leaders provided valuable first-hand infor- mation at interviews in different districts.

4

Chapter II: Policy - the need for retaining the New Territories Ordinance

6.

The Ordinance allows the application of Chinese custom and customary right to matters concerning land in the New Territories. In the 1980s, it is arguable that application of Chi- nese custom is neither well understood nor desirable given the pace of recent development in the New Territories. Therefore, as a first task, the Group felt it necessary to advise whether the Ordinance should be retained at all.

7. We have concluded that Chinese customary practices in relation to land remain wide- spread in the rural New Territories, although application of new family law with effect from 1971 has led to the modification of certain details of such practices (e.g. in respect of mar- riage and adoption of heirs). They also apply to a limited extent in New Kowloon and some cases are known in Hong Kong and Old Kowloon. We understand that there are about 6,000 tso, tong and similar customary bodies in the New Territories managing about 2,790 hec- tares of land. Experience in the New Territories shows that considerable weight continues to be attached to traditional modes of land tenure and that English methods do not always pro- vide an acceptable substitute.

8.

We have further noted that the concept of land as a central element of family wealth in the New Territories persists, as does the desire to succeed to land and to dispose of land in the traditional Chinese manner, without recourse to the employment of solicitors. The making of wills in the New Territories remains unpopular.

9.

We noted opinions expressed by both the legal profession and government professional staff that Chinese customary land management practices are outmoded and serve New Terri- tories people badly. The overwhelming majority of New Territories people interviewed by the Group disagreed with this view. They felt that their practices were simple, well-under- stood by ordinary people and were better suited to their situation than Western practices. Some expressed the further view that the latter served lawyers better than villagers. The Group does, however, accept that those who wish to deal with land in the New Territories other than according to Chinese custom - principally newer residents and commercial organi- sations - should have the choice of applying Hong Kong law in land transactions.

10. The Group concludes that changes in beliefs and practices in the New Territories have not made the NTO redundant. At the same time, it is appreciated that the passing of time and the migration into the New Territories of large numbers of people who do not adhere to prac- tices permitted through the NTO make it necessary for certain land to be exempted, on appli- cation, from the compulsory application of the NTO. This is particularly the case in relation

to succession.

11.

The Group therefore recommends the retention of the New Territories Ordinance, sub- ject to certain revisions which will be discussed in detail below, and the continued application of Chinese custom and customary right to the extent now allowed under the NTO.

5

Chapter III: Revision of the New Territories Ordinance

Historical background

12. On 15th April 1899, the Governor, Sir Henry Blake, issued a proclamation in Chinese (Dispatches and other papers relating to the extension of the Colony of Hong Kong, Sessional Papers, 1899). In this proclamation were stated the boundaries of the New Territories and the intention that the landed and commercial interests of all inhabitants residing within the limits of the new British territory would be safeguarded and that their usages and good customs would not in any way be interfered with.

13. The British administration made a survey of land in the New Territories (J. H. Stewart Lockhart's report) between 1900 and 1904. The Administration found that land ownership fell into four major categories: individual private land holdings, Ancestral Land (or “Sheung T'in "), Temple land ( or “Miu T'in" ) and land held by associations (“Ui T'in” ).

14. The New Territories land survey was accompanied by the setting up of a Land Court to hear and settle disputes over land ownership which came to light during the survey. The "New Territories Land Ordinance, 1905" was described as "An Ordinance to facilitate the transfer of land in the New Territories and for settling disputes in respect thereof and for other purposes". It provided for the setting up of the New Territories Land Courts, the estab- lishment of a system of conveyancing and for the registration of managers of customary land trusts (CLT: for an explanation of CLTS, please see Annex 3), and a system for permitting the Land Officer to ascertain persons entitled to succeed to land.

15. The early administration's policy was to leave the New Territory as they had found it as far as possible, and in dealing with disputes and minor offences, to encourage the application of Chinese law by local elders under the supervision of a government officer acting as magis- trate. In particular, it was the policy that English and locally-enacted laws should not be ap- plied to any local population if their application would cause injustice or oppression. The New Territories Land Ordinance 1905 provided a legal framework for this system. Since 1905, the Ordinance has been repeatedly revised, and much of it - particularly the parts which permitted District Officers to hear civil and criminal cases - has been repealed.

16.

The present NTO still makes provision for the application to land in the New Territories of certain Chinese traditional customary practices which cannot be accommodated easily by Hong Kong laws and English common law. In its current form, the NTO recognizes basically two such practices: :

(1) the ownership of land by Chinese clan, family or quasi-family institu- tions and other general classes of Chinese associations which the Working Group has termed "customary land trusts". The position of the managers of such trusts is analogous to that of trustees in Hong Kong law, except that the trust may exist in perpetuity and continue according to unconventional modes of devolution not recognised in the English common law; and

6

(2) succession to an intestate estate in a form other than that set down in

the Intestates' Estates Ordinance (Cap. 73), together with certain re- lated provisions for the vesting of land in minors.

In addition, the Ordinance makes provision for exemption, on request, by the Governor. This means that where land-owners wish it and the Administration considers it appropriate, the laws in force in the rest of Hong Kong can be applied to the exempted land as if the New Territories Ordinance did not exist.

Proposals for revision

17. Taking as its starting point the policy recommendations in paras. 6 to 11, we have con- sidered the provisions of the Ordinance, carefully noting its relationship with other Ordi- nances (particularly the new family law which came into force in 1971) and questions which have arisen as a result of cases heard in the Hong Kong courts. We have made numerous detailed recommendations which are set out at length in Annex 1.

18. To meet present-day needs, we propose some significant changes to the Ordinance and Government procedures. First, we found that the existing provision in the Ordinance for ex- emption is not well known and has hardly ever been used. In all matters concerning succession to individual property, we feel that those who do not wish Chinese customary suc- cession to apply to their estates, whether or not they prepare a will, should have freedom to apply for exemption. The procedures for applying for exemption should be simple and free of charge. Where a will is prepared, it would be preferable for solicitors to advise their clients to take steps to apply for exemption. However, we feel that the situation is different for custom- ary land trusts. These derive their status in Hong Kong law only through the Ordinance, and we feel that it is not appropriate for them to be granted exemption from it. CLT members who do not wish to manage their matters according to custom can apply for registration as a lim- ited company instead.

19. In connection with the management of customary land trusts, we felt that most disputes and loopholes could be ended if all such trusts wrote down their internal rules. It is not pro- posed to impose such rules from above; but if CLTS fail to provide written rules before a cer- tain date, or if the rules they provide are deficient, we feel that Land Officers should be able to apply a set of written rules based on commonly-accepted customary principles when deal- ing with disputes or possible abuses. The materials obtained by the Group, supplemented by a study of existing clan writings available in Hong Kong, should provide adequate basis for the preparation of such a set of rules.

20. Many CLTs have surrendered land to Government in return for Letters of Land Ex- change Entitlement (Letters B). We are most concerned that, as Letters B are not land, the Ordinance does not provide the same degree of supervision of managers who deal in them as it would where dealing with land is concerned. We consider that dealings by CLT managers in Letters B should require the approval of Land Officers under s. 15 of the Ordinance.

21. Disputes have arisen in the past over the appointment and dismissal of CLT managers. We consider that the Ordinance should state explicitly that Land Officers may approve any appointment or dismissal of managers properly decided upon by CLT members according to their own internal rules.

7

8

22.

The Ordinance now provides for Land Officers to appoint trustees for minors in whom land is to vest. This service has, over the years, been extended to situations other than vesting following succession to land under s. 17. We feel that it is more appropriate for the appoint- ment of such trustees to arise only as a result of successions under s. 17, and that trusteeships for other purposes should be registered simply and easily under a separate scheme under the Trustee Ordinance. In addition, we consider it vital that such trusts should be deemed to ter- minate automatically when the beneficiary comes of age.

23. The other changes we have proposed are for the sake of clarity or consistency with other Ordinances. These are disussed in full in Annex 1.

Chapter IV: Chinese Custom Concerning Land

24. The modes of land ownership reported by Lockhart in the New Territories in 1904 were typical at that time throughout China - especially in the Pearl River Delta. Over 50% of the land under cultivation in the Pearl River Estuary at that time is thought to have been under common clan ownership, and the rest was held privately, mainly by farmers who were clan tenants and subject to clan discipline.

25. The clan system in China grew up over the centuries and was revived by the Neo-Con- fucians of the Song Dynasty (960 - 1279 A.D.). For most of the period up until the end of the Qing dynasty (1911), the clan system flourished with the support of the Qing government (to the extent that it did not see the power of the clans as a threat).

26. The support for the clan system from the government stemmed from the fact that the clan system was, like the Qing dynasty itself, firmly based in Confucian principles and that the clans could impose local discipline and respect for Authority among their individual members to an extent that the Chinese bureaucracy could never hope to achieve itself throughout the vast territory of China.

27. By the latter half of the 19th century, however, the clan system in China had weakened considerably, but it still remained relatively strong and influential in South China. When the Republic of China was established in 1912, efforts were made to supplement the work done at the end of the Qing dynasty to establish a legal code on modern lines for the whole of China. It was well understood that at that early stage, it would not be possible to supplant custom and customary right in respect of family, commercial and land law. Therefore the Chinese Supreme Court continued to apply customary law right up until 1930.

28. Clan discipline and institutions strongly reflected Confucian filial ethics, Chinese fam- ily structure and the traditional hierarchy. Rights and duties among the members centered around the men, as it was the males who preserved the lineage and clan wealth: women always married outside the clan and were therefore excluded from succession to land (unless in exceptional circumstances) so that clan wealth would not be taken away from clan members.

29.

The rules of the clans were sometimes written down, but their quality, both in terms of detail and relevance, was variable. Detailed customary rules were developed for the manage- ment of land because land was traditionally felt to be the safest form of investment and was the centre of clan wealth. The management of common land and succession to land upon death of an owner were considered to be matters of general concern among clan members.

30. Much research has been done in the past into Chinese custom and clan rules by Chinese, Japanese and Western scholars. The Working Group has now attempted to study this work systematically, and supplement it with fieldwork in the New Territories so as to provide material relevant to the application of Chinese custom in the context of Part II of the Ordinance. The results of this study are at Annexes 2 to 4.

9

31. Dr James W. Hayes, who established the Group, has closely followed our work both before and after his retirement. He has given unstinting support and valuable guidance to the Group, without which little could have been achieved.

32.

Much of the information collected concerning Chinese custom relates to the early part of this century. Needless to say, things have greatly changed and to varying extents, people interviewed by the Group felt that many old customs should no longer be applied. Most criticism centered on three areas: the disadvantaged position of women in Chinese custom, the undemocratic nature of the traditional hierarchy and decision-making practices and the inequality in division of assets that can sometimes arise due to the structure of the clan.

33. The Working Group feels that there is adequate provision for exemption from the Ordi- nance and the application of English legal practices to New Territories land if desired. Those who are critical of Chinese custom are thus free not to apply it. The Group does not feel that custom should be tinkered with to bring it in line with Western values for fear that it would become ill-defined and uncertain in its application.

10

34.

Chapter V: Summary of Recommendations

The following are the main recommendations of the Group:

(1) The Secretary for District Administration should re-affirm the policy that the Chinese custom and customary rights of New Territories people concerning customary land trusts and intestate succession to land should continue to be followed if individual land-owners so wish. Provision for this should continue to be made in the New Territories Ordinance (Cap. 97).

(2) Administrative changes should be made to allow individual land-own- ers to apply cheaply and conveniently for their land to be exempted from the application of Part II of the Ordinance; once this exemption is made, such land should be treated in all respects as if it were land in Hong Kong or Old Kowloon. But such a provision should not be avail- able for land held by customary land trusts.

(3) The Hong Kong Law Society should be invited to consider issuing a guideline to legal practitioners recommending that in assisting with the drawing up of any will affecting New Territories land, they should ad- vise clients to apply for exemption from application of Part II of the Ordinance.

(4) All customary land trusts with managers registered under section 15 of the Ordinance should be required to lodge a set of rules with the appro- priate land officer before 1 January 1991. If they fail to do so, Land Officers should apply a set of written rules based on commonly-ac- cepted customary principles in resolving disputes among trust mem- bers. Such a requirement should apply both to clan CLTs and religious houses with managers registered under s. 15.

(5) Managers of CLTs who wish to deal in Letters A or B belonging to the CLT should be required to obtain the approval of the Land Officer in advance.

(6) A further group should undertake the residual task of compiling a set of model rules based on written sources and verbal advice already re- ceived by the Working Group. If possible, part of this task should be taken up by temporary staff (e.g. summer students) who should devote time to the analysis of the large body of clan writings available in Hong Kong so that useful rules can be extracted for future reference.

(7) Certain changes should be made to the wording of the New Territories Ordinance for the removal of doubt in certain cases, to facilitate the de- termination of trusts for minors and to effect other changes referred to in the Group's recommendations. (These proposed changes are set out in Annex 1).

11

12

(8) Detailed guidance notes on the application of Chinese custom and cus-

(9)

tomary right should be prepared for the Land Officers and their staff. Courses on the subject should be held from time to time. A library of relevant materials should be made available centrally for reference and some of the more important material should be extracted and issued to each Land Officer for everyday reference.

Parts of this Report should be translated into Chinese and the New Ter- ritories Heung Yee Kuk should be invited to note the results of re- search done by the Group and the materials it has collected. When completed, guidance notes for land officers should be made available to the Kuk, the Judiciary, Government departments and the ICAC. Courses for Land Officers should include officers in CNTA, BLD and RG(LO)'s Department.

(10) Public understanding of the Ordinance should be enhanced through ap-

propriate publicity.

Annex 1

Application.

Proposed Changes to the New Territories Ordinance.

1.1 The Working Group considers that there is no doubt that the NTO applies to a territory, and in particular in the case of Part II of the NTO, to land in the New Territories (as defined by the Convention dated 9 June 1898 between Britain and China). There is no support in the NTO itself or in background information or precedent law available to the Working Group for the contention that the NTO applies to Chinese people only, or to indigenous villagers only. If a person resides in the New Territories and owns land on Hong Kong Island, Part II of the NTO does not apply to that land. If a person living in Hong Kong or anywhere else owns land in the New Territories which has not been exempted from application of Part II of the NTO, then Part II applies.

Definitions.

1.2 Two issues of definition are central to the application of the NTO: the term “New Terri- tories" and the term "Land".

1.3 The question of the definition of the New Territories is outside the ambit of the NTO and is not considered by the Working Group to require further consideration in the context of the Group's work. We note in passing that the New Territories encompasses the area of New Kowloon north of Boundary Street; yet in all records at our disposal, no evidence exists of application having been received under section 7 of the NTO to have land exempted from the provisions of Part II of the NTO. We therefore note as a matter of presumption that, with the exception of land exempted from the provisions of the NTO, or where probate or letters of administration has been granted by the High Court within three months of death, succession to land since 1898 in the whole area covered by the NTO should have been according to Chi- nese law and custom in accordance with section 17 of the NTO.

1.4 On the question of the definition of "Land" in the NTO, the Group was satisfied that no further elaboration is necessary. We noted however the finding of the Privy Council (Privy Council Appeal No. 14 of 1984 [1] Yau Fook Hong Company Limited and [2] Ying Ho Company Limited v The Attorney General, Hong Kong) that

"Letters A and B are therefore in effect acknowledgements by the Government of a debt caused by taking away land from an owner ... Letters A and B are legally choses in action and are freely transferable, are not subject to stamp duty and are not registerable either."

That is: Letters A and B are not land.

1.5 We have considered carefully the necessity of providing a definition of the terms “clan, family or T'ong", while noting in addition that the frequently-used term Tso is not mentioned in the NTO. It has come to the attention of the Group that apart from the terms "Tso" and “Tong”, a number of other terms are applied to similar traditional bodies and small religious

13

houses, and these have, over a great number of years, been permitted to register managers with the land officer under section 15 of the NTO. The Group considers that a broader term would be more suitable for describing such bodies.

Sections 4, 5 & 6.

Making of rules and raising of fees and charges.

1.6 The Working Group notes that, to the knowledge of the Deputy Financial Secretary, no revenue is now collected under section 4 of the NTO. Subject to the further views of the Dep- uty Financial Secretary, we consider that the powers to make and publish rules for collection of rents, rates, taxes and contributions in the New Territories can no longer realistically be said to be necessary within the ambit of the NTO. It is considered by the Group that these three sections need no longer be retained.

14

Part II Land.

Section 7. Exemption by the Governor.

1.7 All land in the New Territories or New Kowloon for which exemption has not been granted by the Governor is subject to the provisions of Part II of the NTO. New grants in Kowloon have as a matter of policy been exempted from the provisions of the NTO by the Director of Buildings and Lands under delegated authority from the Governor. Similar provision has also been made in grants of land to the Housing Authority for the building of flats under the Home Ownership Scheme.

1.8

Section 11 of the Intestates' Estates Ordinance (Cap 73) and Section 75 of the Probate and Administration Ordinance (Cap 10) each provide that ... "Nothing in that Ordinance shall be taken to affect the application of the provisions of Part II of that Ordinance to land to which Part II of that Ordinance applies and which has not been exempted by the Governor under subsection (2) or (3) of section 7 of that Ordinance from the provisions of Part II of that Ordinance..." This means that with effect from 1971, -

if probate or letters of administration are granted within three months after the death of the testator, then they would be regis- terable against non-exempted land in the New Territories;

if probate or letters of administration were not granted within three months of the death of the testator, the Land Officer must register a successor; and

if probate or letters of administration are granted, but later than three months after the death of the testator, then the pro- bate or letters of administration cannot be registered as instru- ments affecting non-exempt NT land.

1.9 The Working Group considers that at present, the chances of probate or letters of ad- ministration being granted within three months of death are remote because Hong Kong people now keep a variety of forms of investments and winding up their estates is therefore time-consuming.

1.10 The Working Group is concerned that the implications of the NTO relating to testate and intestate succession to land may be little understood, even among some of the legal pro- fession. In particular, according to the letter of the Law, executors or administrators now appear not to be in a position to register grant of probate or letters of administration against land in the NT forming part of the estate of the deceased unless such grant is obtained within three months of the date of death. Despite this, a number of wills purporting to affect non- exempt land in the NT have in fact been registered in the Lands Registries. It is feared that if dispute arose, the title of the beneficiaries of such wills - especially where they are women might be put in doubt.

15

1.11 The Working Group feels that there may well now be a substantial body of people (some of them not Chinese) owning non-exempt land in the New Territories who would not wish the land to devolve according to Chinese custom in case of their dying intestate, or who may wish to make particular provision for disposal of their land through a will. The Working Group recommends that provision be made administratively for the Governor to delegate to one or more officers at a senior level in each district the power routinely to exempt land from the application of Part II of the NTO on application by the registered owner or his repre- sentative. It is, however, considered that it would not be logical to grant such exemption to land in the New Territories registered in the names of Customary Land Trusts (CLTs).

1.12 The question of lengthening the period following death of a testator within which pro- bate or letters of administration may be registered against non-exempted NT land will be ad- dressed in discussion of Section 17.

Section 10. Interpretation of "Land Office" etc.

1.13 The Working Group considers that in the light of modern terminology, the section should be re-drafted to make clear the role played by Land Officers, District Lands Officers and District Land Registries. The recitation of locations of District Land Offices need not appear in the NTO.

Section 11. Preparation, receipt and registration of memorials.

1.14 The Group considers that the words "... in respect of or..." in section 11(1) are not suffi- ciently clear and, consistent with the present wording used in the Land Registration Ordi- nance, should be omitted. The remainder of the sentence should be omitted up to the first word ("Provided") of the next paragraph as it is the view of the Group that the designation of places at which land deeds may be registered should now fall to the Registrar General.

Section 12.Jurisdiction in Land matters.

1.15 The Group recommends that the word "Colony" be changed to "Territory” in the last line of section 12 to be consistent with the practice in other Ordinances.

Section 13. High Court or the District Court may enforce Chinese customs.

1.16 The Working Group noted that the decision of the court in Tang Kai-chung and another v. Tang Chik-shang & others" (Action N. 2071 of 1966) was that the provisions of section 13 of the NTO, Cap 97, relating to Chinese law and custom were mandatory. Justice Mills- Owens held in that case that "... the Court must recognize and enforce Chinese custom and customary right in the case of a Tso in the N.T. It is then a necessary corollary that one must disregard any aspect of English law, including the rule against perpetuities or any rule regarding unusual modes of devolution...". The Group recommends that for the avoidance of any doubt, the wording of section 13 be amended to state this explicitly in connection with Part II of the NTO for cases involving land which has not been exempted under section 7. The Group has considered further the question of whether, in the light of the above case, the application of Chinese law and custom is mandatory in the case of succession to the non- movable estates of non-Chinese persons owning non-exempt land in the N.T. who dies intes-

16

tate. The Group is unable to reach a conclusion on how a Hong Kong court would decide such a case, but it feels that it is most unlikely, notwithstanding the strict legal position, that a Hong Kong court would wish to impose Chinese customary law on the estate of a non-Chi-

nese.

Section 15. Registration of manager of "Tong" etc.

1.17 The Working Group noted that at present, and since 1900, Land Officers have been reg- istering under section 15 of the NTO managers appointed by the following bodies (the defi- nitions given here should only be taken as general indications of their meanings) :-

- Monastery (Buddhist)

Tso

an ancestral land trust

Tong

an ancestral land trust

Wui

an association (sometimes To Tei Wui ).

Miu

- Temple

Tsi

She

Kun

Kung

Tsung

- Nunnery (Buddhist)

- Taoist temple

- an association of people formed for the purpose of common Chinese worship. - a community (often a village); also Tai Tsung.

Company - a registered company also registered under the NTO

Kung

- a property-owning commune

Shop

- a traditional commercial group

Yuen

- nunnery

Wai

·

- a group from the same (Punti) village

Un

- nunnery

Un

- nunnery

Siu Chuk - nunnery

The Group has carried out research into the nature of these bodies and prepared a paper de- scribing them and their management. The paper, "Customary Land Trusts in the New Territo- ries", appears at Annex 3. The Group recommends that these traditional associations, and in particular small religious institutions, continue to be recognized and that the wording of the NTO be modified so as to ensure that none of them would subsequently be excluded from its application.

1.18 The Group has concluded that in approving appointments of customary land trust man- agers, Land Officers have a duty to ensure that appointment by a traditional body of such managers has been made in accordance with the internal regulations of the CLT and with whatever agreement may be approriate, according to the CLT's established practice, from other existing managers. This raises immediate problems as, to our knowledge, written proce- dures for individual CLTs are extremely rare. It is already clear that disputes can and do arise in such matters and, in the absence of an agreement between existing managers or members of a CLT, and without written rules, it is almost impossible for a Land Officer to come to a satisfactory conclusion.

1.19 We also note that there is no requirement for a CLT to establish a particular link to any specific District Office. CLTs can and have made simultaneous applications to more than one District Office in respect of a single application under section 15. This raises the risk that one Land Officer might inadvertently approve an application that another, in his judgement, was not prepared to entertain.

17

1.20 The Working Group strongly recommends that following consultation with the N.T. Heung Yee Kuk, all CLTs be required to set down their own internal working rules and pro- cedures on paper, and that a copy be lodged with the appropriate District Office. It is stressed that these rules should be of the CLT's own making and passed by a meeting of members of the CLT.

1.21 The Group further recommends that CNTA prepare both a set of model rules with op- tions (for example on the appointment of managers and the distribution of assets), and a set of basic rules set out on the basis of research carried out by the Group. CLT managers should be invited to lodge a set of the CLT's own rules (based on the model rules) with the Land Offi- cers before 1 January 1991. This measure has been strongly supported by many New Territo- ries people consulted by the Group. Thereafter, in any dispute among members requiring resolution by the Land Officer, these rules can be referred to. In the absence of rules for a particular CLT, or where the rules lodged by the CLT are deficient, the CNTA basic rules should be applied by the Land Officers. This could be achieved without changing the Ordi-

nance.

1.22 We also consider that it would be useful and reasonable, after a certain date, for all CLT managers applying to the Land Officer under any section of the NTO to be required to supply the address and telephone number of their "base", and that thereafter, no application under the NTO should be entertained other than by the Land Officer for the district in which the CLT is based. In dealing with such applications, however, Land Officers of districts where the CLT's land is located should be informed of the application.

1.23 We noted that a number of CLTS had extensive land holdings crossing NT District boundaries. At the same time, other CLTs had very small land holdings, and in some cases, following resumption of land by the Government, all land holdings of certain CLTs have been exhausted.

1.24 Given that many CLTs have existed for a great length of time, we consider it right that CLTS holding letters A or B Land Exchange Entitlements, (which are themselves not land) as the last vestige of their holdings in land, should be permitted to continue to exist in the expec- tation that the debt in land represented by the land exchange entitlements will eventually be redeemed in the form of a new grant of land. Should, however, the land exchange entitle- ments be redeemed for their monetized value in cash, or should they be negotiated by the CLT on the open market, then a presumption should be made in law that the Managers of the CLT have put themselves in the position of Trustees under the Trusts Ordinance in respect of the proceeds. Such dealings should, of course, be according to the rules of the CLT and subject to the approval of the Land Officer, as previously recommended.

1.25 Where cash compensation is accepted by a CLT for land reverting to the Crown and that land was the last land-holding of the CLT, we consider that its managers should be per- mitted a grace period of one year in which to use the proceeds to puchase new land. If, after one year, the managers have not applied to the Land Officer to be registered against a new land holding, they should be required to register the CLT as a Society, Company, or to form a trust for the administration of the remaining assets of the CLT.

18

1.26 In making this recommendation, we are aware of a body of opinion in the New Territories to the effect that a CLT can never be dissolved. The basis for this assertion is that the beneficiaries of any CLT include all future unborn generations of existing beneficiaries. (No beneficiary of a CLT can succeed to the assets of the CLT: the beneficiaries obtain their status as a right at birth and lose it automatically on death). The dissolution of a CLT is regarded by many traditional New Territories people as a breach of trust toward future gen- erations. Notwithstanding this popular opinion, we have arrived at the view that some general provision should be made for CLTs to wind up voluntarily.

66

1.27 The Working Group is of the opinion that a CLT without land is nothing more than a Trust. Tang Kai-chung and another v. Tang Chik-shang & others" (Action N. 2071 of 1966) lends support in this, as it was held by J. Mills-Owens that “... subject to the provisions of the N.T. Ordinance, the provisions of the Trustee Ordinance apply to the Tso, and the registered managers are trustees within the meaning of the Trustee Ordinance. But their powers as such are to be found in section 15 of the N.T. Ordinance." In the absence of any land holding against which a CLT can be registered, Part II of the NTO ceases to have any application to such a traditional Chinese body and the Land Officer ceases to have a role to play. In these circumstances, there is no justification for the continued existence of the CLT as an entity under the New Territories Ordinance. At the same time, we see no reason why a CLT could not maintain its name and original identity while still being a trust under the Trustee Ordinance. (Indeed, we note that cases exist of managers of such traditional bodies being reg- istered as trustees under the Trust Ordinance or directors under the Companies Ordinance as well as managers under section 15 of the NTO). With or without land holdings, the managers of a CLT are trustees and the Prevention of Bribery Ordinance applies to them.

1.28 The Working Group has also considered whether a CLT might be permitted to acquire land exempted under section 7 from application of Part II of the NTO or, holding non-ex- empted land, might apply for it to become exempted. The Working Group holds the view that for a CLT to own exempted land is a contradiction in terms as no basis would then exist for the registration of the CLT managers against such land under section 15 of the NTO. We therefore recommend that provision be made in the NTO for any land held or purchased by a CLT to be subject to Part II of the NTO, notwithstanding any previous exemption under sec- tion 7.

1.29 In the interests of clarity, the Working Group suggests that section 15 of the NTO be di- vided into four sub-sections dealing respectively with registering appointment or dismissal of CLT managers, cancellation of registration of CLT managers, approval for managers to deal in CLT properties and registration of the appointment of managers of new CLTS. We feel that it is a matter of presumption that if a Land Officer can approve the appointment of a manager by a CLT, he can similarly approve the dismissal of a manager effected properly by the mem- bers according to their internal rules.

Cancellation of registration of managers.

1.30 The Working Group recommends that the Land Officer continue to be given the power to cancel the registration of a CLT manager on due cause shown. It is felt that such cause would have to be substantial, for example evidence of illegal acts or breach of trust by man- agers. It is noted that internal disputes among members of a CLT are not infrequent: in the

19

view of the Group, any attempt by members or managers of a CLT to apply to a Land Offi- cer for the cancellation of registration of a manager under section 15 of the NTO should be supported by reliable and persuasive evidence of incompetence or wrong-doing by the manager for whom cancellation of registration is sought.

-

1.31 The Group is concerned that the measure prescribed in the NTO for failure by a CLT to prove appointment of a manager - re-entry of the land is too draconian and should be re- placed by the more reasonable measure of permitting a Land Officer to appoint a manager of his own choice pro-tem.

Permission for Managers to deal in CLT land.

1.32 The Working Group has expressed concern that, while the NTO provides sufficient scope at present for Land Officers to supervise properly all dealings (including surrender to Government) in CLT land, present administrative arrangements may not be sufficiently rigor- ous and the present system may be open to abuse.

1.33 The total value of land owned by certain CLTS in the New Territories may in many cases exceed ten million dollars. This is clearly not a situation foreseen when the NTO was first drafted. The Working Group has considered what might be acceptable as a justification for disposing of CLT land, and what may be an acceptable way of distributing the proceeds.

1.34 In our view, an application to a Land Officer for approval to deal in CLT assets should include a detailed explanation of the reason for wishing to deal, the purpose to which the proceeds are to be put, the consideration for the transaction, the identity of the buyer and the proposed date of the transaction. We consider that when such approval is given, its effect should not be open-ended, but be limited to a period of six months from the date of approval and apply only to the dealing as specifically set down in the application to which it relates. In respect of his duties under section 15 in connection with permission to deal, we consider that a Land Officer has a duty of care towards the beneficiaries of a CLT which extends to :-

(i) ensuring that property is not disposed for for the bene- fit of an individual or group of members or managers at the expense of another group of the beneficiaries as a whole;

(ii) ensuring as far as practicable that no fraud is perpe- trated in relation to the transaction;

(iii) ensuring that the transaction is in fact in accordance with the will of the CLT members;

(iv) ensuring as far as practicable that the value to be real- ized is not disadvantageous to the present and future mem- bers of the CLT.

1.35 In seeking the advice of New Territories personalities as to what may be considered proper grounds for disposing of CLT property, there has been a wide range of views ex- pressed. On the basis of the views we have received, we are of the view that the purpose of

20

the land holdings of a CLT is to form a capital asset which may in turn yield recurrent assets to meet the cost or ritual worship or to benefit present and future CLT members. Thus land may directly yield benefits in terms of accommodation, school premises or recreation facili- ties; it may also yield rental income which may be put towards education expenses for poor members, the upkeep of other property (particularly for Chinese religious and ancestral wor- ship) or land for agricultural activities for communal benefit. Custom allows for CLT land to be sold to meet an urgent need for repair of an ancestral hall or temple. Land Officers have previously been asked to consider applications to dispose of land to provide money for medical care for certain managers or beneficiaries or simply for distribution to exisiting members. Such purposes appear to us to be unacceptable because they are contrary to custom.

1.36 We consider that the duties of the Land Officer described in paragraph 1.34 should be carried out through administrative measures. For (i) and (iii), we feel that provided sufficient publicity is given about the intentions of the CLT managers (through posting of notices), and that no supportable objection is received, the Land Officer should be able to satisfy himself of the acceptability of the managers' proposed actions to the CLT members. We consider that the intention of (ii) can be achieved by requiring that forms of application state clearly the identity of the vendor, purchasor (or mortgagor) and unit price of the land. In respect of (iv), we feel that the supply of an estimated unit price of land should allow the Land Officer to sat- isfy himself in general terms that the proposed transaction is bona fide.

1.37 Many CLTs have surrendered land to Government in return for Letters of Land Ex- change Entitlement (Letters B). We are most concerned that, as Letters B are not land, the Ordinance does not provide the same degree of supervision of managers who deal in them as it would where dealing with land is concerned. We consider that dealings by CLT managers in Letters B should require the approval of Land Officers under s. 15 of the Ordinance.

New Customary Land Trusts.

1.38 We have considered the question of whether new CLT should be permitted to be formed and if so, whether they would require exemption from registration under other Ordi- nances, including the Societies Ordinance. We have come to the view that there is no logical basis for resisting the formation of new CLTs; however, consideration should be given to requiring newly formed CLT to provide a set of written rules for retention by the appropriate Land Officer.

Section 17 Succession.

1.39 Section 17 of the NTO provides a mechanism whereby intestate estates can devolve in accordance with Chinese tradition instead of according to English tradition under the Intes- tates' Estates Ordinance. Traditionally-minded residents in the New Territories hold the view that, since Chinese tradition is quite explicit as to the manner of devolution of property among the descendants of a deceased land owner, it is not necessary to write a will. (There is in addition still strong superstitious belief among traditional elements that the writing of a will is in itself inauspicious.)

1.40 The Working Group notes that Chinese tradition excludes the female descendants of the deceased from succession. However, we also note that female descendants should tradition-

21

ally have claim against such estates in terms of maintenance for the deceased's widow(s) and dowry for his daughters.

1.41 We consider that it was clearly the original intention of the NTO that exemption from the application of Chinese traditional modes of succession to land should be available to all, either by way of application to the Governor to have land exempted from application of Part II of the NTO, or by the preparation of a will.

1.42 This report has previously made reference to a recommendation that simpler provision be made for the exemption, on application, of land from application of Part II of the NTO. We also feel that allowance should be made for a longer period for obtaining probate or letters of administration in connection with wills applying to non-exempted land. The present period of three months allowed in section 17 of the NTO is not considered sufficient in mod- ern circumstances.

1.43 The extension of the period for obtaining probate does, however, raise other problems. Extension of the time allowed for grant of probate will lead to a delay in the settling of each estate, and in particular lead to difficulties in settling compensation for land resumption where the registered owner has died before compensation is paid out. One simple remedy, available already, is for any person preparing a will affecting land in the New Territories to apply for exemption from Part II of the Ordinance under section 7. It is recommended that the Hong Kong Law Society be invited to consider issuing a guideline to practitioners to apply for exemption on behalf of their clients while preparing such wills.

1.44 On the matter of payment of estate duty, the Registrar General and Commissioner for Estate Duty have agreed a recommendation by the Group that appropriate security for estate duty is acceptable in lieu of actual full payment of estate duty as required in the NTO at present.

1.45 The Working Group has noted that there is a need to elaborate on the manner of vesting of a tenancy in land following succession under section 17 of the NTO. Simply speaking, if two or more persons held a tenancy in common on a piece of land, succession to the estate of one of the owners could pass according to traditional modes of succession on his death. How- ever, were the tenancy a joint tenancy, then rights to the land would automatically pass to the surviving joint tenant(s). Thus, for example, where a husband and wife were joint tenants on a piece of land, the son would have no claim on the estate on death of the husband as long as the wife survived, even though the land in question may be subject to application of Part II of the NTO.

1.46 For this reason, it is correct that land vested in successors under section 17 of the NTO should be vested in common, not jointly; otherwise future succession according to Chinese custom could be vitiated. Cases heard by the Supreme Court of the Republic of China (1912 - 1928) were judged according to this principle.

Section 18.Powers to appoint trustees for minors.

1.47 Under the present terms of the NTO, it is possible for any person residing in the New Territories or New Kowloon to apply to be appointed trustee over land to be vested in a mi-

22

>

nor, regardless of the origin of that vesting. For example, there has been application by a re- cent immigrant from China who is under 21 years of age to appoint a trustee to facilitate his purchase of a piece of building land from a Canadian national residing overseas.

1.48 The Working Group recognizes that this counter conveyancing service is welcomed by New Territories residents, particularly in relation to grants of village lots under the Village Small House Policy. However, we feel that the retention of such a scheme under the NTO should be restricted to cover trusts in connection with land to be vested as a result of succes- sion under section 17. We consider that the duty of care required of a Land Officer in connec- tion with the setting up of such a trust cannot properly be exercised where the purpose of the trust does not arise out of traditional succession among established land-owners in New Ter- ritories districts with whom a District Officer or local Rural Committee can be expected to be familiar.

1.49 The Working Group notes that the NTO, as presently worded, permits the Land Officer to appoint a trustee in respect of land already vested in a minor, and then vest the land in the trustee. This implies that the Land Officer is in fact taking away the legal estate of a minor and vesting it in someone else. We consider that appropriate re-wording is required to ensure that such an incorrect situation would not arise.

1.50 We propose therefore that the NTO be changed to specify that such trusts may be ap- proved by Land Officers under section 18 only in connection with land succeeded to under section 17. At the same time, we recommend that the Registrar General be invited to consider the provision of a counter conveyancing system for the setting up a more general type of trust for land to be vested in minors such as is now available in connection with the Small House Policy, and that such a service be made available Territory-wide.

1.51 A further and more serious defect in the present section 18 of the NTO, which has re- cently been remarked upon by a senior member of the judiciary, is the question of the deter- mination of such trusts. The present NTO makes no provision for the automatic determination of trusts approved under section 18 when the beneficiary reaches majority. The danger there- fore arises that if the trustee should die without the trust having determined, the beneficiary might be faced with heavy legal costs to establish his title to the land held in trust for him by the deceased. Similar difficulties could face beneficiaries who fall into dispute with their trus-

tees.

1.52 The Working Group recommends that all trusts approved by Land Officers under sec- tion 18 should automatically determine upon the beneficiary reaching the legal age of major- ity.

Section 42. Rules for raising fees and charges.

1.53 The Deputy Financial Secretary has confirmed that no fees or charges are or have ever been raised under this section. It is recommended that the section be removed.

Section 43. Documents in evidence.

1.54 The Working Group notes that certain documentary evidence may continue to be held by Land Officers rather than Lands Offices or District Registries (for example sworn state- ments and family trees). It is recommended that section 43 be retained.

23

Section 44. Liability of officers exercising powers under the NTO.

1.55 The working group recognizes that protection should be available for officers who con- scientiously exercise powers under the NTO, and propose to seek advice from the Attorney General on whether section 44 provides such protection. At the same time, the group is con- cerned to ensure that the public has adequate recourse in the event of any negligent acts by such officers.

24

{

Annex 2

What constitutes "Chinese Custom and Customary Right" in Section 13

of the Ordinance?

In Section 13 of the Ordinance, it is stated :-

In any proceedings in the High Court or the District Court in relation to land in the New Territories, the Court shall have power to recognize and enforce any Chinese custom or custom- ary right affecting such land.

Judicial direction in Tang Kee Chung v. Tang Chik Tsang & others (1970) has estab- lished that application of Chinese custom and customary right to land cases in the New Terri- tories is mandatory. This judicial direction also applies to Land Officers exercising statutory duties under the Ordinance. The purpose of this paper is to consider what constitutes Chi- nese custom or customary right in the context of the Ordinance.

The "Strickland Report”.

2.2 This question was considered in detail by G. E. Strickland in Appendix 1A of the Re- port of the Committee on Chinese Law and Custom in Hong Kong (1948). The writer noted that the wording "Chinese custom or customary right" originated from the New Territories Land Ordinance No. 3 of 1905 and had not changed up to 1948. The ordinary meaning attrib- uted by English law to the phrase, according to the writer, was "such local custom and cus- tomary rights as would according to the principles of English law be recognized as having the force of law." Quoting the 3rd edition of Salmond on Jurisprudence, the writer said that it must be a custom of immemorial antiquity.

2.3 The writer considered that there was room for argument as to whether the English law concept of the length of time required to establish a custom (from the 12th Century or the length of actual human memory) should not be modified in respect to its application to Hong Kong. However, he considered that, by analogy with the reasoning behind the English law concept of custom, the existence of a custom might be disproved if it were shown that it had arisen since the enactment of the Ordinance (in the form which contained the wording in question); that is, 1905. On this point, however, the Committee declined to express a formal view.

2.4 There follows below a survey of decisions held in the Hong Kong courts on what con- stitutes Chinese law and custom as applied to Hong Kong.

The Courts.

2.5 In Wong Kam Ying and Ho Po Chun (etc...) and Man Chi Tai (Actions 1301 of 1965 and 1118 of 1966), Justice Huggins, considering the application of Chinese customary law re- lating to marriage in the case in question, held that :-

25

F

Parts of the Chinese customary law (or common law of China) are applicable to Chinese inhabitants of the Colony in virtue of the terms of the Application of English Law Ordi- nance Cap 88, s. 3

In construing those parts, "one merely looks to 1843 to as- certain the applicability of the customary law and the basic rules as they then existed and thereafter one applies those rules subject to such developments as may have taken place since that date."

The "developments" referred to here are such developments in legislation as would have the effect of making Chinese customary law inapplicable under the terms of the Application of English Law Ordinance Cap 88 (and now the Application of English Law Ordinance 1966, Cap 88 ss, 3 & 4)

2.6

Further detailed discussion of what constitutes "Chinese custom or customary right" ap- pears in Kan Fat Tat (a.k.a. Kan Fat) v. Kan Yin Tat (a.k.a. Kan Tat) (Supreme Court action No. 865 of 1982). Responding to Counsel's contention that custom must have four character- istics:

(1) It must be immemorial;

(2) it must be reasonable;

(3) it must be certain in respect to its nature generally, as well as in respect of the locality where it is alleged to obtain and the per- sons whom it is alleged to affect;

(4) it must have continued without interruption since its immemo-

rial origin.

Deputy Judge R. C. Tang expressed the following opinion :-

2.7

"I agree such characteristics would be required to prove a cus- tom as a matter of English law.

But as for Chinese custom, in the present context, I believe rea- sonableness does not come into it. As for immemorial origin, no doubt one cannot trace it back to the year 1189, the commence- ment of the reign of Richard I. That is obviously inapplicable. However, I have no doubt that such custom must be certain."...

In Tang Ho Foon v. Leung Sek (1953 - 1955. DCLR 152/156), Deputy Judge Charles stated an opinion that:

"A custom, in order to be recognised, need only to have existed prior to 1874, the year of legal memory in the Colony, instead of

26

having existed before 1189, and its observance need not be con- fined to a limited area of the Colony so long as its observance is confined to a particular class or classes of inhabitants, for example the Chinese, as distinct from all inhabitants generally. Such a cus- tom does not depend for its recognition upon its being a matter of judicial knowledge, as under the common law rules referred to; its existence is a question of fact which consequently may be proved by evidence, though if it has been proved frequently it will become a matter of judicial knowledge.”

2.8 In Wong Ying Kuen v. Wong Yu-shi and others (Miscellaneous proceedings No 19 of 1956), Justice Briggs, after hearing evidence in support of certain interpretations of Chinese custom based on current Chinese law in the Chinese People's Republic and Taiwan, held that:

and

2.9

66

...

the correct law to apply is the Ching law and custom as it existed in 1843 with such modifications in custom and in the inter- pretation in the law as have taken place in Hong Kong since that period. The Hong Kong legislature reserved Chinese law and cus- tom to Hong Kong in 1843 and I do not see how changes in the law made in another country whether by legislation of interpreta- tion of the code can affect Hong Kong.

The law is continuously interpreted in the light of existing cir- cumstances. Any such gloss on Ching law which has occurred in Hong Kong since 1843 must be accepted and followed. Similarly, custom becomes modified throughout the years and due regard must be paid to any such change that has occurred in custom in Hong Kong.

In an article in the International and Comparative law Quar- terly Vol 11 (1962) (p.299) entitled "Chinese Customary Law in Hong Kong" the learned author, Mr Haydon, collects and com- ments upon the Hong Kong and some other cases up to that date, 1962. He reaches the conclusion that the correct law to apply is the 1843 Ching law and custom as it has been modified in Hong Kong...

66

"We must in my view keep our eyes in the boat; and the boat is Hong Kong. What happened outside Hong Kong must be ignored. Developments and new interpretation of the Ching code undoubt- edly took place but they were the result of pressures and conditions irrelevant to Hong Kong.”

In Re Tse Lai-Chiu deceased (Full court 1969), it was held per curiam that :-

for the purpose of ascertaining the content of Chinese law or cus- tom the courts may resort to authoritative textbooks and treatises,

27

in aid of the long established practice in Hong Kong of taking evi-

dence of such law and custom.

2.10 There is occasional contradiction in what the courts have held on the subject of the cri- teria for accepting Chinese custom; but certain points have been stated consistently enough for them to be said to be established judicial knowledge. It has apparently never been argued that the Chinese law and custom normally referred to in cases where the Application of Eng- lish Law Ordinance 1966, Cap 88 is to be applied differs in any way from the Chinese cus- tom or customary right referred to in s. 17 of the New Territories Ordinance, Cap. 97, or in any other ordinance in Hong Kong under which Chinese custom may be applied. The concept of Chinese custom in Hong Kong is homogeneous.

2.11 As long as it is accepted that the Chinese customs to be accepted in the Courts of Hong Kong are those which prevailed in that part of China now occupied by the New Territories at the end of the Ching dynasty, it is unimportant whether the cutoff date accepted is 1843, 1874 or 1905. Any practice which had altered significantly between those dates would for that very reason not be accepted as "custom".

Demographic variation and Historical Change.

2.12 Careful thought needs to be given in deciding whether a custom claimed to apply to a limited sector of the Chinese population in the New Territories, or to have been prevalent over a limited period, should be accepted in connection with approvals under sections 15 or 17 of the Ordinance. Some of the issues involved are considered below.

2.13 It has been stated to the Working Group that in New Kowloon, due both to its physical separation from the remainder of the New Territories and the Government's different policies applied there since 1900 (and particularly following the urbanization of New Kowloon since the Second World War), Chinese custom in connection with intestate succession by widows or daughters of the deceased in the absence of sons has departed from the Qing tradition. It appears justifiable to conclude that custom in respect of succession in New Kowloon is now different from that in the rest of the New Territories and has been so for forty years. Land Of- ficers, it appears, have accepted this difference by registering succession to property by wid- ows and/or daughters, notwithstanding a clear Chinese custom to the contrary.

2.14 On the evidence of historians and sociologists concerned with the demography of the New Territories, all native inhabitants are of the Han race. Three sub-groups exist: the Can- tonese (Punti), Hakkas and the Boat People. Land holdings by boat people in the New Terri- tories are minimal. No evidence appears on record that there is any difference in custom among these sub-groups with respect to the basic principles of succession to landed property. As regards Customary Land Trust (Tso and Tong) management, Punti and Hakka villagers sometimes have differing views on the way division of proceeds from Tong land are made: Hakkas traditionaly recognise Fong (branch) and Ting (individual) as subdivisions of a Tso, while some Punti villages include two additional categories, Ka (family) and Wu (house- hold). These distinctions play a part in the division of a CLT's assets. Distinctions may also exist in customs establishing a valid betrothal, and such differences may have a bearing in ascertaining persons entitled to succeed to land according to customary right.

28

Statements on local custom by village elders.

2.15 Historically, varying amounts of reliance have been placed on the statements of village representatives as to custom in their villages. It is considered that it would be unsafe to rely solely on a village representative's certification as to custom in his village because :

(a) custom in a certain village cannot be said to have the force of law: indeed, it may only amount to idiosyncrasy. Acceptance of practice in such a limited area as custom or customary right could be challenged in Court;

(b) where CLT matters are concerned, there is a great risk of con- flict of interest arising where evidence on custom is taken solely on the word of village elders in the village where the land in question is located;

(c) if different interpretations of custom are accepted from village to village, there arises a loss of certainty as to such custom, and the validity of the concept of custom could come into question.

It is, however, important that the knowledge among village elders concerning local customs be respected as a valuable resource. Statements made by village representatives and elders as to their knowledge of familial relationships between villagers and family histories can pro- vide important corroborative evidence in ascertaining customary rights to succeed to land and often reflect the practices of their local sub-districts (Yeuk) in dealing with cases appealed from the village level.

Posting of notices.

2.16 It is an established administrative procedure for notices to be published giving details of applications made to Land Offices in connection with ss. 15, 17 and 18 of the Ordinance. Posting of such notices enables members of the local community to voice objections to pro- posed actions which they consider to be against their interests. That such notices may be posted with no objection received is no indication that the actions proposed by the applicant are in accordance with custom.

2.17 It has occasionally been the view of Land Officers that any proposal, even one which clearly flies in the face of Chinese custom, should be acquiesced to if notice is posted and no objection is received within the allowed period. Such a view does not accord with the legal interpretation of "Chinese custom" in Hong Kong. Approval of an application which did not accord with Chinese custom on the basis of no objection having been received to it could not be defended in Court.

Conclusions.

2.18 From the foregoing paragraphs, the following generalizations can be made: -

29

30

(1) Chinese law, custom and customary right to be applied in Hong Kong is that which was prevalent in 1843 in that part of China which comprised the present Territory of Hong Kong, but sub- ject to any diminution of its application consequent upon enact- ments subsequently passed in Hong Kong or the U.K., and fur- ther subject to any changes in such customs or their interpreta- tion as may since have become established;

(2) Outside the ambit of the N.T. Ordinance, application of which is specified to be to land only, the application of Chinese cus- tom (for example in respect of commercial practices and pre- 1971 Chinese marriages and adoptions) is restricted to Chinese people;

(3) Developments in Chinese law or its interpretation which have taken place outside Hong Kong are not relevant (although evi- dence concerning Chinese law accepted in courts outside Hong Kong might be valid evidence as to the nature of such law in the absence of evidence locally);

(4) English common law criteria for establishment of a custom do not apply to Hong Kong. Legal memory in Hong Kong extends only back to 1843;

(5) It is established practice in Hong Kong courts that in the ab- sence of written enshrinement of Chinese law, custom or cus- tomary right the courts accept both written and oral evidence from academic authorities and expert witnesses.

(6) There are no significant variations in Chinese custom and cus- tomary right as effect the establishment of trusts for minors and the basic principles of succession to land in the New Territo- ries.

(7) Neither the posting of notices without objections being received nor the assertions of village elders as to village customs can be regarded as more than additional corroborative evidence as to Chinese custom and customary right in the New Territories.

Customary Land Trusts in the New Territories

Section 15 of the Ordinance states :-

Whenever any land is held from the Crown under lease or other grant, agreement or licence in the name of a clan, family or t'ong, such clan, family or t'ong shall appoint a manager to represent it...

Annex 3

This paper proposes to introduce a new term, "customary land trust" (abbreviated to CLT) to encompass the various unincorporated bodies holding land in the New Territories and having managers or trustees whose appointments have been approved under s. 15 & 18 of the Ordi- nance. The paper also attempts to analyze the customs affecting the formation and manage- ment of such bodies and comment upon current issues affecting their land holdings in the New Territories.

Historical background.

3.2 According to records made by the British administration (J. H. Stewart Lockhart's re- port) following the survey of land holdings in the New Territories made between 1900 and 1904, land ownership fell into four major categories: individual private land holdings, Ances- tral Land (or "Sheung T’in”), Temple land (or “Miu T'in") and land held by associations ("Ui T'in"). This is what the report had to say about the latter three :-

Ancestral Land

Ancestral land is land that has originally been set apart for ancestral wor- ship, and is increased by purchase from time to time in the name of the de- ceased ancestor, in whose name also the government taxes are paid. The rent of ancestral lands is devoted to the upkeep of the ancestral temple, to the edu- cation of the members of the clan, to the worship of ancestors, to the relief of poor members of the clan, to the marriage expenses of those who require assis- tance, and to the funeral expenses of those relations who are poor. Such land is always held in the name of the ancestor who bequeathed the property, the land being nearly always leased to members of the clan who cultivate it and pay a yearly rent. Sometimes the different branches of the clan cultivate the land in rotation, the branch in occupation of the land being held responsible for the payment of the expenses incurred on account of the objects for which the land was originally transmitted. Clan land cannot be alienated without the consent of the representatives and elders of the whole clan. The rent roll is kept by a committee of the clan.

Temple Land

Temple land is land devoted to the support and upkeep of a temple dedi- cated to the service of some specially selected idol in the name of which the

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3.3

land is held. Some of those who originally subscribed towards the erection of the temple or their descendants act as trustees, and keep the rent roll and an account of current expenses.

Certain land in Kam Tin and Tsiu Kang is devoted to the support of a few nuns. The rent roll is kept by a trustee, the rent in grain being handed over to the nuns who, in order to increase their meagre income, also go from village to village begging for alms from the inhabitants.

Land held by Associations

China is a land of associations, which are as numerous and the objects of which are as varied as the needs of man. Their formation is simple and easy. Certain villagers, whatever their object may be, meet in a temple, ancestral hall or private house to deliberate over some scheme. If it is approved, a fund is raised to which members contribute equally, their contributions being de- voted to the purchase of a piece of land, landed property in China being con- sidered the safest investment. The rent derived from this land may be used for the burial of a member of the association when he dies, or may be let out on interest, or may be used to assist members to emigrate to California and Aus- tralia, or for any enterprise or good objects that may be desired.

Communal ownership of land by clans has had a long history in China. The situation reported by Lockhart in the New Territories was typical at that time throughout China - espe- cially in the Pearl River Delta. Clan common land was managed on a trust basis. The pur- poses of the trusts were, with the exception of the Associations, mainly connected with cus- tomary religious observance together with economic factors.

3.4 Court cases in Hong Kong after 1900 (and very much earlier in the Straits Settlements) have established as judicial knowledge that bodies holding land in the fashions described by Lockhart were types of trust; they would, in fact, be recognizable as such in English law were it not that in many cases they contravene the English common law rule against perpetuities. It is also worth noting that ancestral groups holding land on a trust basis would generally fail the English common law test for charitable bodies, even where the income derived from the land is used for charity within the clan, because they fail the criterion of generality (as benefit from the trust goes only to those born into the clan). CLTs for ancestral worship cannot be regarded in English common law as trusts for religious purposes either, as foundations set up for prayer for the souls of the dead in perpetuity have since the time of Henry VIII not been deemed to be trusts (see the Singapore case of Choa Choon Neoh v. Spottiswoode (1869) at Appendix 4 of the Strickland report).

3.5 If these were trust bodies, what were the terms of the trusts? There are few written statements of the terms of such trusts, so it must be assumed that for most clans, the terms were a matter of customary knowledge, the Chinese name by which the bodies or their land holdings were known implying the purposes and principles upon which they were estab- lished. Certain clans did set out rules for common property in their family annals, but the amount of detail in them varies greatly and very few could be accepted as evidence in a court. CLTs have occasionally been turned into registered companies with detailed rules for land management in their Memoranda and Articles (e.g. the Ip Tai Kwong Tong).

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3.6 As will be discussed later, various customary bodies have existed which (1) have the properties that they operate in a way analogous to English trusts; (2) which exist principally (or, in the context of the Ordinance, exclusively) as unincorporated bodies holding land; and (3) have terms and purposes dictated by customary practice. It is proposed to bring these all under the general name "Customary Land Trusts" (CLTs).

Customary Land Trusts and the New Territories Ordinance

3.7 One of the objects of the Ordinance was to facilitate the conveyancing of land in the New Territories. English legal concepts of land ownership and transfer of title could not co- exist comfortably with a practice whereby land was held in the name of someone long dead or of an "idol”. There is evidence that in the last century, CLTs might have tried to maintain the system of joint management by clan elders in Hong Kong, but the cost of changing the registered managers from time to time was too great and made serious inroads into their reve- nue (see Rules of the Ip Kwong Tai Tong, 1917). In this context it must be assumed (for no drafting instructions survive) that the device available in s. 15 of the Ordinance was set up as an interface between the English and Chinese systems, allowing the beneficiaries of CLTs to appoint a manager who, subject to the approval of the Land Officer, would have legal capac- ity to manage, meet the liabilities of and deal in land held by such bodies.

3.8 That appointment of such managers requires the approval of a Land Officer, and that managers so appointed require the approval of the Land Officer to deal in the land is, as far as can be ascertained, outside the scope of Chinese custom. However, Hui-chen Wang Liu points out in her book "The Traditional Chinese Clan Rules" (Pub. Association for Asian Studies, 1959) that "Sometimes the clan property was registered with the government in order to prevent unscrupulous members from selling or mortgaging it".

3.9

The terminology used in the Ordinance in respect to such trust bodies is "clan, family or t'ong "; none of the terms used in Lockhart's report (Ancestral land, Temple land or Ui land) is mentioned in the Ordinance. It is generally understood that "clan" is a translation of the Chinese word zu. Detailed examination of the concept of zu has been made by Hsien Chin Hu in "The Common Descent Group in China and its Functions" (Pub. Viking Fund Publications in Anthropology No. 10, N.Y. 1948); Hu decribes zu as "... a patrilineal clan, including all who are descended from the same distant ancestor... The families within one zu bear the same surname, or xing, but families of the same surname do not necessarily belong to the same zu ." The term "common descent group" has been adopted by a number of soci- ologists: in the rest of this paper, "clan" is used.

3.10 Grants by the Qing court and preceding dynasties to powerful clans account for some of the largest land-holdings in southern Guangdong Province; yet to my knowledge, no land in the New Territories for which a manager has been registered under s. 15 is held in the name of a clan (zu) : all holdings relevant to the Ordinance are held by sub-groups of the clan. Fam- ily, which in this context means extended family, is another valid term to describe many of these groups. The Chinese term, jia, according to Hu (see para. 9), "... includes parents, children and grand-children with or without their immediate dependants. . .". T'ong is a Chi- nese term which covers a variety of associations in Chinese rural society. These will be dis- cussed in detail later.

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3.11 Of the terms used in the Ordinance, "family" and "clan" clearly indicate land held in the name of a group of individuals with a hereditary link (however tenuous). The term "t'ong" can be related to a number of bodies some of which consist of members with no he- reditary link. It appears, in the absence of supporting drafting documentation for the Ordi- nance, that between them the terms are intended to mop up those land holdings not under in- dividual ownership but held validly under the concept of "customary land" as defined, for example, in the New Territories Titles Bill 1902 :-

2.

...

(a) "Customary land" means land to which a claim has been allowed by the Land Court constituted under Ordinance 18 of 1900 or land expressly granted to be held from the Crown under local customary tenure :

...

3.12 What then of temple and nunnery land? That such land had been swept up into the clan, family and t'ong category must be inferred from s. 16 of the Ordinance, which states :-

"16. Any clan, family or t'ong owning land on 28 October 1910, in re- spect of which a manager has been duly registered under this ordinance, shall not, so long as such land is certified by the Land Officer as being used for agricultural, religious, educational or charitable purposes or for such other uses of a similar nature as are recognized by established local custom . . .

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It is worth noting that numerous temples and religious houses have successfully sought Land Officers' approval for appointment of managers and trustees under s. 15 of the Ordinance.

The origins of individual customary land trusts

3.13 The basis of land tenure in the New Territories at the turn of this century is discussed by Lockhart in his report, and later by E. S. Haydon in his paper "Chinese Customary Law in Hong Kong's New Territories" (1962) and H. G. H. Nelson in a paper entitled "British Land Administration in the New Territories of Hong Kong, and its Effects on Chinese Social Or- ganisation" (1969). Land in China was granted in freehold to individuals or to clans by the Crown (the Emperor of China) and they could further subdivide and sell it to others. Unculti- vated land not on grant could be cultivated by individuals and, subject to the payment of the proper rents and returns and registration by the local administration, such individuals could retain title to the land as lessees of the Crown and devise it to others. This is a greatly simpli- fied version of the account given by Haydon. As "owner" of a piece of land, an individual was subject to the demands and interests of his clan: his beneficial rights were not as strong as those of his counterpart in English common law.

3.14 One form of CLT, the tong, has two distinctive meanings in the context of New Territo- ries land. The details have been provided by village elders as follows: a landowner may de- cide that, rather than allowing succession to his land to devolve according to custom (to be divided between his sons), all or part of his land should remain intact to be enjoyed commun- ally by his sons and their male descendants in perpetuity. His motives for doing so are first, to ensure that certain land remains undivided rather than being subject to unlimited subdivision

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among future generations: this encourages future generations to remain together in the vil- lage. Second, he can avoid any forseeable dissent among his sons over the division of land; and finally, he can ensure according to normal custom that funds will remain available for the veneration of his name after his death and for the upkeep of his grave, buildings and temples. Where such a disposition is made by a landowner during his lifetime, the land is held in the name of his tong. Writing in 1948, Hu claimed that in the Pearl River Delta, one half of all cultivated land was clan common property, including both ritual land and "school-land”.

3.15 Alternatively, following a landowner's death, all or part of his land may be set aside by his sons or later descendants, by mutual agreement, in veneration of their ancestor's name. This is considered an act of filial piety, apart from having economic motives. In general, such settlements made by successors result in the land being held in the name of the deceased landowner's tso. Thus tso and tong may, in certain circumstances, refer to identically moti- vated and managed bodies, the only distinction being whether they were set up before or af- ter the death of the person in whose name they were created.

3.16 CLT land derived from a common ancestor usually includes land set aside for Ching Sheung. This land is called Sheung tin, Chai Tin or Si tin.. The recurrent revenue it generates goes towards maintenance of graves and ancestral halls, rites of ancestral worship and food and drink (traditionally roast pig) divided among male members of a CLT following grave- sweeping. Existence of such land, however, does not necessarily imply existence of a CLT: family land can also be set aside for Ching Sheung during partition following succession by sons, and either be held in the name of the eldest son, or jointly under the names of all the

sons.

3.17 Central in clan ancestral worship in the villages is the ancestral hall (tsz tong). Accord- ing to Hu (see para. 9) :-

"The ancestral hall is far more than a place to deposit the tablets of the dead and to hold the rites once or twice a year. Here take place important meetings of the tsu leaders; here are judged the disputes and crimes of tsu members; here are registered all members of the group, past and present".

One important use of the Tsz Tong was for publicizing details of the management and ac- counts of CLTs. This often took place on the 15th day of the Chinese lunar New Year. Where religion was a motive in the conception of a tso or tong, it sometimes extended beyond Con- fucian ancestral worship and the single clan. Wealthy families or groups of landowners, ac- cording to their religious beliefs, might found a temple dedicated to particular deities or re- vered figures (Tin Hau, Pak Ti, Buddha, Taoist immortals etc.) to protect their family or vil- lage and bring prosperity.

3.18 A tong may, however, be initiated by parties belonging to different families for eco- nomic and strategic purposes. It was common in the New Territories, both before and after the arrival of the British, for groups of villages or families of different surnames within the same village, to put land into common ownership as a source of funds for the purchase of weapons and the organization of defence. Hu gives the following example:-

"When in the summer of 1944 the Japanese advanced to take the districts of T'ai Shan and San Shui, the county of K'ai-p'ing was menaced. The Chinese

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army had retreated, but the two tsu of Szeto and Kwan organized themselves to fight for their homes. In the tsu of Szeto, the wealthy merchants and land- lords, realizing the great danger which threatened everyone, contributed all they had to buy munitions. As that was insufficient, the ritual land and other common property was auctioned off.”

The Hon. Lau Wong-fat has described this as "customary socialism". Examples of such CLTs in the New Territories are the Chung Yee Tong in Tuen Mun and the Sai Kung Kaifong As- sociation.

3.19 The differences between CLTS known as "tso" and those known as "tong" have become blurred. Village elders often feel that tongs "are larger than tso". New Kowloon villagers thought that what they called "tso" were known as "tong" in the rest of the New Territories. The most important point, though, is that each CLT's members are invariably quite clear about the origin and purpose of their own organization. In Chinese rural society, co-operation was frequently decided on the basis of blood links. Setting up associations extending beyond family ties but operating by close analogy with the Chinese family was an effective device for creating unity among different groups in the same area: the blurring of distinctions be- tween family and neighbourhood alliance therefore played a positive role. The adoption of clan-type rules for non-clan organizations would also have helped to ensure that everyone understood the basic rules and management principles, even if they could not read or write.

Internal structure of ancestral customary land trusts

3.20 CLTs originating as described in paragraphs 13 and 14 develop on the lines of the tradi- tional family organization of the founders. Membership and decision-making powers are re- served exclusively for males. In most cases the first beneficiaries of the CLT are the sons of the originator (who may themselves be the founders). It should be noted that where a founder has only one son, the issue of forming a CLT would not normally arise as the land would not in any case have been divided. The first beneficiaries have their own families and, in line with Chinese family terminology, they are heads of the various fong of the CLT. Where CLTs are formed in the circumstances set out in paragraphs 13 and 14, fongs will exist. These fongs are the "branches" to which Lockhart refers in the report quoted in paragraph 2. Some villagers have pointed out that similar terminology applies to the Chinese secret societies.

3.21 There is no uniformity about how different branches share in a CLT's assets or reve- nue. There is a custom that different branches use the land and pay for its upkeep and for re- ligious observance in rotation. Branches sometimes rent the land for one year from the CLT, paying rent to the managers (sub-letting is not permitted). In some CLTs, rights to land reve- nue always devolve on a branch basis, in others, always on an individual basis. Some CLTs distinguish between branch and individually-managed land, all held in the name of the same CLT. Members need to pay to use CLT land only if that CLT has a rule or custom requiring them to do so.

3.22 A son born to a member automatically becomes a beneficiary at birth. His rights are limited to those of his CLT branch (unless extended by consent of all the members), and can- not be diminished by the demands of other branches. Members' rights cease when they die: they cannot bequeath or assign their shares in the CLT's assets. The assumption is that exist-

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ing members and managers are responsible for preserving the interests of future generations of beneficiaries.

3.23 It is the custom for new members of a community or family to become recognised symbolically and registered by the Chuk Cheung. Among the Punti community, for example, families display lanterns at the Lantern Festival (on the 15th day of the Chinese New Year) to show that a son was born in the preceding year and the birth is recorded in the family annals. Hakka villagers sacrifice a cock and take it (cooked) to the ancestral grave at the Ch'ung Yeung festival. These rights help to establish an individual's share in a CLT.

3.24 CLTs not formed on a family basis, such as those described in paragraph 3.18, may not have branches or may have branches based on the individual families or villages which initi- ated them. However, the rights of members follow the same principles as set out in paras 3.21 & 3.22. Certain such CLTS have explicitly issued share certificates to members. These can normally be traded only among the beneficiaries and their descendants, but in some cases they are negotiable outside the CLT.

Management of Customary Land Trusts

3.25 By custom, CLTS agree on a person or persons to act as Sze lei of the CLT's assets. That land records contain both the term "manager" and "trustee" is of no consequence: both are translations of the Chinese term Sze lei. Traditionally, managers were senior members of the community who commanded respect and could ideally read, write and keep accounts. Seniority in a Chinese family depends both on generation (pui fun) and age within a genera- tion. A younger individual can have greater seniority because he belongs to a senior genera- tion.

3.26 Given the circumstances of the New Territories at the end of the last century, it is not surprising that few with such skills were to be found and elders in most villages had their fin- gers in

many pies. We have been told by some informants that traditionally, if an individual was eligible to fill a managerial vacancy on grounds of seniority but was considered by fam- ily elders unsuitable on character grounds, the vacancy might be left open until the "unsuit- able" individual died. Managers were traditionally required to serve the interests of their CLT members as trustees (which the courts now recognize them to be). To understand the modern development of CLTs and the disputes arising in them, it is important to note that villagers traditionally have not trusted these Sze Lei, although they lacked the education and time to monitor their activities. The Group has frequently been told that "in the old days", managers disposed of the revenue of their CLTs literally "as if they were the sole owners thereof." The provision in the Ordinance for Land Officers' supervision of Managers implies that the early administration shared some of these suspicions.

3.27 The decision to appoint a manager is customarily reached by consensus among clan or village elders. Once appointed, managers usually serve for life or until they decide to retire. Some more modernized CLTs have a term of office of one year for managers; in others, man- agership passes from father to son (this is more likely to occur where a manager is also the most senior member of the senior branch of a clan - a position that his son would automati- cally inherit in the next generation). Today, when there is a ready pool of sufficiently edu- cated people to form a management, it is common for there to be more than one manager. By

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custom, each branch of a CLT has the right to appoint one or more managers to represent its interests in the CLT's affairs. While the rights and obligations of different branches are now generally equal, traditionally the senior branch (cheung fong) had a stronger voice. CLTs may, rarely, remove managers when members are dissatisfied with them. This can happen provided that the dismissal is agreed among all the members - particularly the members of the branch to which that manager belongs. One set of rules for a registered company managing clan property required a two thirds majority of all members to sack a manager. One branch cannot object to another branch's choice of representative unless they have clear evidence of his unsuitability; nor can a majority CLT decision be implemented if one or more branches has reasonable grounds for objecting, irrespective of the proportion of total membership rep- resented by the dissenting branch or branches. The same registered company mentioned above laid down in its rules that when there was to be a general vote on an important issue involving all clan members, minority fongs could request large fongs to appoint representa- tives to vote, so that the total number of members voting in each fong would not exceed the number of members in the smallest fong.

The division of proceeds from land holdings of customary land trusts

3.28 By custom, CLT land is never divided among members; proceeds from CLT land hold- ings take the form of recurrent revenue from rents and the enjoyment of the right to farm the land or inhabit houses on the land. It would be exceptional for CLT land to be sold. By tradi- tion, this would happen only as a last resort in a case of great importance such as the urgent need for a capital sum to build or repair an ancestral hall. Some village leaders have said that in recent cases where CLT land was sold or resumed, it was almost impossible to persuade members to re-invest in land, the universal demand being for a share-out of the cash. In this context, the sale or mortgage of CLT land holdings to achieve large cash revenue and the sur- render of land holdings to the Crown in return for compensation are innovations (albeit inevi- table ones).

3.29 The traditional uses of CLT revenue are described generally by Lockhart, (quoted in para. 2). Educational and religious uses of such revenue clearly persisted - witness the prolif- eration of village schools and temples - but such practices have become eroded. The Hon. Lau Wong-fat relates that in Lung Kwu Taan, he had tried unsuccessfully to revive the con- cept of using income from CLT land for educational bursaries for village children. In Nga Tsin Wai village (in New Kowloon), however, part of the revenue from CLT property is used for school prizes in a local school. The general decline in real recurrent revenue from New Territories agricultural land means that many of the broader charitable aims can no longer be achieved. CLTs' land holdings are, however, frequently leased for storage, sold on the open market or surrendered to the Government for public uses resulting in considerable cash reve-

nue.

3.30 How is such cash revenue divided? There is no single rule. In the great majority of cases, either the method of sharing the land in question has been previously specified or is otherwise well understood: then there is no argument. The division of such proceeds is cus- tomarily by individual or branch (fong). Some communities recognise up to three categories of division: branch (fong), household (wu) and individual (ding), the proceeds being split and divided accordingly. Where there are branches, division by branch is the norm and managers have no say in how money is distributed once it has been handed over to a branch head.

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Where the number of beneficiaries in the different branches varies greatly, this may give rise to dissent. A tried and tested compromise is to divide the total proceeds into two and distrib- ute one half by branch and the other by individual. Geographically widely-separated CLTS have arrived at this compromise, with cases recorded back to the 1950s, indicating that this may have been the typical customary response to such a problem.

How decisions are reached

3.31 Much is made of the Chinese system of "reaching consensus through compromise". However, dictionary definitions of "consensus" help little in understanding the process or the role played in the process by family or community leaders. Where a group is to decide on an issue, a meeting is usually held; but frequently this is just the formal culmination of a pro- tracted process. The following description is intended to describe the process for those who are unfamiliar with it. Such a process is, of course, not peculiar to CLT management.

3.32 At the outset, everyone involved is told of the matter at issue. If all agree, then the af- fair is simply decided. When there is minority dissent, the matter has to be handled through "consultation" in order to reach unanimity. The Chinese principle of "unanimity through con- sultation" has been given a heavy political gloss, but the procedure is traditional.

3.33 The elders have a particular responsibility in ensuring that it is made subtly known to the dissident group that it is in a minority. At this point, the solution is not reached through voting, which produces winners and losers with whatever rancour that entails, but through finding what would induce the dissident side not to voice its objection, thus letting the matter proceed with only support or abstention. Much importance is attached to the leaders' ability to allow the opposition to have its say. The inducement to drop an objection may involve modifying the original proposal to the satisfaction of the dissenting side (or at least giving the appearance of a modification, for face's sake). Alternatively, it may be as crude as a cash pay-off. The skills of leadership involve conduct of such negotiations.

3.34 The great weakness of this system is that it invites spurious objections from members motivated by a wish to squeeze an advantage from the majority. In weighing up objections brought to the attention of Land Officers, if the dissenting party is not prepared to justify its objection, then its dissent should be regarded as a possible attempt at "squeeze”. At the same time, it is important for Land Officers to consider the possibility that strong branches of a CLT may be trying to obtain an unfair advantage over weaker branches.

3.35 Reaching consensus in modern times through the method described above has become much more difficult due to the decline in the authority of rural leaders in the eyes of their in- creasingly well-educated juniors. The traditional system has come under greater attack in the context of the very large sums available for disposal following resumption or leasing of CLT properties. The absence of many members abroad (including some managers) further in- creases the difficulty of reaching consensus.

3.36 The traditional Chinese concept of unanimity (for example, in Kan Fat Tat v. Kan Yin Tat (1982, HCMP 865) when the Court found that “. . . there can be no distribution without unanimous consent. It is implicit in my finding that the members may by unanimous agree- ment decide the mode of distribution.") should be viewed in the light of the process just de- scribed.

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The dissolution of customary land trusts

3.37 Can such trusts be wound up? There is a widely-held belief that since the interests of the beneficiaries extend to all unborn generations, a CLT can never be dissolved and its land holdings should never be allowed to become exhausted. This begs the question of the more and more frequent exhaustion of CLTs' land holdings through compulsory purchase by Gov- ernment. A meeting of the Working Group attended by Sir David Akers Jones, a recognised expert on New Territories CLT matters, concluded that it was neither reasonable nor practical for managers to have regard to the interests of unborn generations. Any act of a manager which might have been reasonable at the time, but proves with hindsight not to have been in the interests of future generations, is hardly actionable. It is also reasonable to argue that managers who, for example, sold off CLT properties, wound up the trust, emigrated to Brit- ain, opened a restaurant and made fortunes for their offspring could hardly be acting against the interests of future generations.

3.38 The other side of the coin is given in evidence by Sir David Akers Jones in Tang Kai- chung and another v. Tang Chik-shang and others (AN 2071 of 1966) that in the traditional village setting, partition of CLT land would be socially destructive of the clan, which in turn would accelerate the break-up of the rural community. The Hon. Lau Wong-fat has also stressed the CLTs are a strong agent in keeping the rural community together.

Religious-based customary land trusts

3.39 The basis for religious CLTS is outlined in para. 3.12. Where temples and religious houses are managed solely by the original donors of the land on which they are built or their descendants, the question of their management is relatively uncomplicated. However, it is frequently the case in such institutions, particularly nunneries and monasteries run on relig- ious principles, that there is confusion about the rights and powers of the religious parties in- volved (abbot or abbess) and those of the original donors.

3.40 Fortunately, the great majority of major religious houses in the New Territories are managed by incorporated bodies with written constitutions and further controlled under the Chinese Temples Ordinance. As for the remainder, some deductions on the mode of their ten- ure under Qing law and custom can be made from Supreme Court of the Republic of China, which preserved the application of Qing law subject to subsequent legislation by the new government. The following is from a translation by Dr F. T. Cheng in "The Chinese Supreme Court Decisions" (Pub. The Commission on Extra-Territoriality, Peking, 1923) :-

"The ownership of a public monastery or temple and its properties, not- withstanding that the donors have specified the objects of their donation, vests not in them but in the monastery or temple itself, so that among themselves there does not exist any kind of co-ownership in respect of its properties; but their wishes as to who should manage the affairs of the monastery or temple and its properties and for what purposes and under whose directions should its income be employed should be carried out. In the absence of any contrary in- tention declared by the donor, however, the question as to who should have the powers depends on who has lawfully acquired them in fact...

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"Property given to a monastery or temple by a donor becomes public property. Its representative (headman) has only the power of management, not the power of disposal in regard to such property...

"If the ownership of any property given by a donor to a monastery or temple is vested in its representative, the latter cannot, without the consent of the donor or his successor or the sanction of the competent court, dispose of the property for any object differing from those for which the donation was made...

"If the donor has at the time of his donation, specified the objects of his donation, he has the right to ascertain from the donee whether or not the prop- erty he gave has been employed for those objects. . .

"Any property given by a donor to a temple becomes public property for religious purposes, and its ownership passes from him and vests, not in the Representative of the temple, but in the temple itself; therefore if the Repre- sentative mismanages the property or has otherwise dealt with it improperly, the donor, although he may interfere, cannot withdraw the property...

"The property of a monastery should be managed by its representative and, except in the case of a private temple built entirely with one's own money, even the donors or their successors cannot, without the consent of the representative, petition the authorities for the disposal of such property on the ground that the fund is needed for matters of public interest...

"If there are good grounds for the donors to dispose of the temple property and the Representative unreasonably withholds his consent, or if custom al- lows the donors to do so independently, it will be necessary to obtain only the sanction of the chief administrative authorities.

"The original donors or their descendants have the right to inquire about the preservation of local temples as well as to consent to the disposal of the temple property; a person wholly unconnected with the temple but merely re- siding in the locality shall not be allowed to take proceedings concerning them on the pretext of public interest. . .

"Property contributed to a monastery or temple by donors becomes public property. Its Representative has only the powers of management over such property, but cannot dispose of it at pleasure. Property purchased by him, however, vests in him and he has full powers of disposal over it. . .

"It is a matter of common experience that a monastery or temple generally purchases property in the name of its Representative; therefore, unless there is other evidence showing that the property was purchased by him with his own money, he cannot claim the property as his own, though it may be in his name"

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3.41 The principles expressed in these judgements are supported by a document purporting to record the assignment of lands to a monastery in Tuen Mun. This makes clear that the re- ligious house to which the land was transferred could not be "interfered with" subsequently by the donors, while the monk in charge could not alienate the donated lands, although the monastery could enjoy all other rights normally enjoyed by a beneficial owner. The consis- tency of the judgements in such cases coming before the Chinese Supreme Court over a pe- riod of sixteen years (1912 - 1928) indicates a well-established customary law on the rights and obligations of the heads of temples and monasteries.

3.42 Where a temple or monastery is managed on strictly religious lines, the power of the abbot in religious affairs is absolute. Since the disposal of a monastery's income-generating land must be closely linked with its religious functions, it follows that dealings in them must have the agreement of the abbot and cannot be left purely to the discretion of the original do- nors or other lay trustees. The Hong Kong Buddhist Association has described the method of devolution of authority on the death of the abbot of a Buddhist monastery: an abbot normally indicates during his lifetime who he wishes to have succeed him after his death. Such direc- tion may be made verbally or by a written will. When the abbot dies, a convocation of at least ten monastic leaders from the neighbourhood grants "probate" of the spiritual will of the pre- vious abbot or otherwise choose a new abbot by acclamation. The original donor or other lay trustees have little, if any, say in this process.

3.43 This suggests that the property of religious houses and temples set up on donated land is also customary trust property in which both the abbots or religious leaders installed and the original donors (where their identity and intentions are known) or other lay trustees must re- spect one-anothers' wishes.

Small religious houses

3.44 Complementing the major religious institutions run on a CLT basis in the New Territo- ries described in the previous paragraphs are the smaller religious houses such as those dis- cussed in a paper by Dr. J. W. Hayes, "Buddhist Chai Tong at Luk Wu, Lantau" (1962). The distinctive feature of these is that they are set up by a founder to combine the purposes of re- ligious worship and the care of old religious believers (mainly women). The majority of them are Buddhist and are known by such terms as yuen, chai tong, siu chuk, or she.

3.45 In many cases an individual or group of believers purchases a property and subscribes a sum to be used for religious observance and their own care and livlihood until their deaths. To this extent, the original subscription can partly be regarded as a form of insurance for their care in old age. The property may consist of a dwelling with a vegetable plot and may be in- creased from time to time by the purchase or donation of additional buildings. The income of the group derives from members' subscriptions, donations from outsiders, and frequently from the maintenance of funeral niches on behalf of outsiders.

3.46 The groups hold their properties in a variety of forms. Often, the first purchase is held in the name of the originator and, on his or her death, a designated successor succeeds to it. This transfer may have the appearance of a sale. Some small religious houses are incorpo- rated as registered charities or companies; many have managers registered under s. 15 of the Ordinances, and are thus religious CLTs.

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Protective Trusts

3.47 Trusts have customarily been established in the New Territories to protect those who might otherwise be unable to look after their own interests in traditional Chinese society. The beneficiaries are typically widows and unmarried daughters of land-owners or under-age sons entitled to succeed to land according to Chinese customary right.

3.48 Such trusts share the traits of the CLTs described above, having their terms implied by customary practice and being under the trusteeship of a Sze lei. Trusts set up on behalf of minors are covered under the provisions of s. 18 of the Ordinance. Similarly-conceived trusts traditionally formed to protect the interests of widows- particularly where partition of land takes place during the widow's lifetime - are not formally catered for in the Ordinance. The practice has been for land in which widows or unmarried daughters have a remaining interest to be placed in the form of "Ancestral property" with a Sze lei appointed. Such appointments have in the past been registered by Land Officers arbitrarily either under s. 15 or s. 18 of the Ordinance.

The role of Land Officers

3.49 S. 15 of the Ordinance gives Land Officers a supervisory role over CLTs, requiring them to approve the appointments of Sze lei and any dealings in land by the Sze lei on behalf of the CLTs. Land Officers also supervise the appointment of Sze lei and approve their deal- ings in land managed by protective trusts set up under s. 18, described in the previous para- graph.

3.50 It is clearly implied that the role of the Land Officers (which does not have its origin in any Chinese custom) is that of quasi-trustee, with a remit to protect the interests of the bene- ficiaries of the trusts. It has been the consistent policy of the New Territories Administration (now C.N.T.A.) that Land Officers should establish to the best of their ability that a CLT's proposals to appoint managers or deal in land are made in accordance with the internal working customs of that CLT, and with its members' agreement. The most fundamental re- quirements laid down by Land Officers are that the CLT must show evidence that a resolu- tion to take the proposed action has been passed properly; that notices are posted to inform the public and that a period is allowed for receipt of objections. Where there is an internal dispute, Land Officers usually send the managers away to sort it out among the members.

3.51 It often happens that members of a CLT are not in Hong Kong and cannot easily be consulted. Judging from Lockhart's reference to emigration to California and Australia (para. 3.2), such situations must have occurred throughout the period of British administration in the New Territories. Some CLTs have from early on had overseas branches and it has often proved impossible to maintain complete and accurate lists of members' addresses. In such circumstances, it is not practical to insist on evidence that 100% of members have been con- sulted and have agreed to a proposal. However, given accounts of how Sze lei have in the past acted high-handedly and without reference to the interests of the members in dealing with CLT property, Land Officers have a duty to ascertain that those who could reasonably have been consulted have been consulted. There is also some question as to the rights of clan members who have moved away: Hu (see para. 9) quotes a rule of the Jian (Kan) clan in Guangdong province which states:

43

"A branch that has separated from the main body and moved away cannot in- terfere with the property of the ancestral hall of the parent tsu (clan), just as the parent tsu cannot interfere with the property of the emigrating group".

3.52 In dealing with objections to proposals by CLT members, caution has to be exercised, as described in para. 34, to ensure that objectors put forward valid justifications for their ob- jections. It is also necessary to ensure that branches (fong) of a CLT do not attempt to inter- fere unjustifiably in one-others' affairs since, according to custom, fong enjoy a certain de- gree of autonomy and protection from outside pressure.

3.53 It is unfortunate that Land Officers have little legal authority to intervene in the area which most frequently gives rise to disputes within CLTS: the division of proceeds from the disposal of land. It is worth noting, however, that it is within a Land Officer's authority to set conditions on his approval of any dealing by CLT managers, and such conditions could in- clude requiring managers to state in advance how proceeds of land are to be distributed.

Modern political pressures

3.54 As a final issue in this study, it is necessary to point out that almost all the present gen- eration of CLT members and managers (generally regardless of age) has expressed the view that Chinese custom in CLT matters should be brought up-to-date with modern political de- velopments, for example by allowing decisions to be arrived at through a genuine democratic voting process and allowing widows and unmarried women an appropriate share in the pro- ceeds and assets of CLTs.

3.55 Repeatedly, it has been found that CLTs in the New Territories have translated this wish into action, with widows and unmarried women sharing in proceeds of land revenue on an equal basis to men - for example the sharing of resumption money with widows and un- married daughters and extending payments to those participating in grave-sweeping ceremo- nies (the modern counterpart of sharing the roast pig) - to female family members. The ac- ceptance of women into the decision-making process of CLT management, however, is much rarer, and seems confined to representation as trustees of male members who are under-age.

3.56 The implementation of a voting system is less widespread. A number of cases described as "democratic voting" were nothing of the sort: on examination, they turned out to be the same "consultation" process as described in para. 3.31 with a vote at the end for appearance's sake. Many modern political pressures originated during the Republican period (1911 - 1949) and are described by Hui-chen Wang Liu (see para. 3.8). She also points out that the principle of democratic voting implies an equality among members quite at variance with the original Confucian principles upon which most CLTs were founded.

3.57 Village elders who have contributed to this paper stress that difficulties in the manage- ment of CLTs occur where the speed and size of government development is greatest or op- portunities for large revenue from leasing of CLT property for storage purposes exist. It is therefore not surprising that calls for reform are loudest in development areas, and that in the relatively quiet areas of the New Territories, CLT managers may see no need for change.

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3.58 Nevertheless, it is clear that CLTs in the New Territories villages are and will continue to be affected by modern political developments, given the rising value of the land now un- der CLT management and the increasing standard of education of CLT members. New Ter- ritories people continue to stress that that CLTs are alive and healthy as institutions and play an important role in maintaining the unity of village communities in the New Territories, counteracting the effects of the spread of their descendants into the urban environment or to jobs overseas.

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Judgements from the Supreme Court of the Republic of China (Da Li Yuan) 1912 -

1928

Section 4.

Co-ownership

Although sacrificial land (Chai Tin) may be set aside in numerous ways, it shall be co- administered by decendants of the deceased after his death. (1913 S. No. 8)

Rights of ancestral land (Sheung Tin), which is in law a co-owned unit, shall be shared among descendants, and none of them shall grant any permanent lease to outsiders without the consent of co-owners. (1913 S. No. 119)

All clansmen are entitled to use common land of the clan if the act is not a violation of any rule of the clan. If there is no rule or general practice of making payments for the use, it is not necessary for a user to make payments. However, dispositions of common land and objects on common land shall be with consent of the majority of the clansmen. If improve- ments or developments are made to common land with consent of the majority of the clans- men and special fees are paid, payers shall be allowed to enjoy special benefits. (1913 S. No. 226)

Real estates bequeathed by ancestors which have no documents for diposition or ob- tainment, or which have in fact been openly and peacefully occupied for a long time, shall in law be regarded as being held in co-ownership. (1914 S. No. 598)

Common properties set aside by the clan for specific functions shall be treated as prop- erties held in common co-ownership for specific purposes. No alterations shall be made to their purposes and the properties shall not be disposed of unless with consent of all the branches which have set aside the common properties, and there are proper reasons. Pro- ceeds from these properties shall be spent in running business co-owned by all the branches in accordance with the purposes for which they have been set aside. However, when the branches cannot run the business in co-ownership for some proper reasons, for the same pur- pose, requests for partition of the proceeds and other plans may be made independently. As regards the amount, it shall be equally partitioned by the number of branches which have set aside the properties in co-ownership. (1914 S. No. 1144)

When a due part(s) of one or several of the co-owners disappears, the due parts of the other co-owners shall extend accordingly. (1914 S. No. 1207)

No alteration shall be made to objects held by co-owners in co-ownership without the consents of the other co-owners. (1915 S. No. 252)

Unless with special acts or common laws, co-owned properties shall not be disposed of without consent of the whole membership. Sacrificial properties (Chi Tsan) from ancestors are held in co-ownership by descendants. It is a plain fact that they cannot be sold privately by part of the descendants. Even the person who initially set aside a sacrificial property is not entitled to any special disposal: once a property has been donated, he is reduced to being a member of the co-owners. (1915 S. No. 669)

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Ancestral properties (Chi Tsan) are co-owned and their co-ownership belongs to all the branches of a same family. For the purpose of offering continued worship to ancestors, an- cestral properties are originally intended to be kept permanently and shall not be discarded. Therefore all the documents for setting aside the ancestral properties must bear words denot- ing the permanent prohibition against selling. However, persuant to Chinese tradition, these ancestral properties may be partitioned, sold or disposed of by some other means with the consent of all the branches when it is necessary (e.g. when descendants have difficulty in making a living or that they are in serious dispute over administration). This traditional prac- tice is neither harmful to the public interest nor against any mandatory regulations. Current laws regarding thefts and sales of ancestral properties aim only at preventing thefts and sales. A sale supported by only one or few branches but without consents of other branches is clas- sified under the law of theft and sale. A sale with the consent of all the branches shall not be treated as an act of theft and sale. (1915 S. No. 771)

Regarding the disposition among members of the clan of ancestral land bequeathed by ancestors, in accordance with the normal practice for co-owned properties, unanimous con- sent by all the clansmen is an important criterion. Nevertheless, according to old practices or special regulations of the clan, heads of all the branches may collectively act as agents for all the members of the clan for the purpose of disposition; or a meeting may be convened by heads of the branches who may collectively act as agents for all the members of the clan for the purpose of disposition; or a meeting may be convened by heads of all the branches and disposition be carried out according to a resolution passed by the majority of the clansmen. An act of disposition persuant to the general practice or regulations shall be treated as valid though it is not consented to by all the clansmen. (1915 S. No. 977)

Where buildings are common properties of a fraternity association (Tung Heung Wui), they are co-owned by members of the same fraternity (Heung) and shall definitely not be dis- posed of by only a portion of the members. (1915 S. No. 1463)

Descendants shall get no pay for administration of ancestral property, as it is their obli- gation. (1915 S. N. 1558)

Ancestral property is held in common by all branches of the same extended family. Re- garding the purpose for which the property was set aside, perpetual upkeep was originally ex- pected and no demolition shall take place without authorization. (1915 S. No. 11771)

Under the existing legislation, graveyards are co-owned in common and not individu- ally. With common ownership (i.e. prior to partition), originally no co-owner is allowed to dispose of his portion. (1915 S. No. 1816)

Under the existing legislation, ancestral property cannot be partitioned on principle. Nevertheless, in case of necessity (e.g. descendants are suffering hardship or have serious dis- putes over administration), and with consensus of all branches, ancestral property can be par- titioned. If such necessity is apparent in all branches, even though someone shows disagree- ment with intent to gain advantages for himself, the government judicial office may approve partition at other branches' requests. (1915 S. No. 1849)

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With an agreement on family property among the persons concerned, partition on good grounds shall be bound by the agreement. The law shall not intervene in it. Although no agreement has been made by the persons concerned, if the head of the family has decided on the way of disposition or the clan has made a resolution at their meeting and the persons con- cerned raise no objections, it shall be treated as a binding agreement. (1915 S. No. 2021)

Graveyards are held in common co-ownership. Other than in case of necessity or with consent of all branches of the extended family or with a specific decision having been made, a graveyard shall neither be partitioned, assigned nor otherwise disposed of. Any contraven- tion shall be treated as void. (1915 S. No. 2267)

In principle, no request shall be made for partition of an ancestral hall established by a whole clan. If for some special reasons, it is difficult to maintain co-ownership, the govern- ment judicial office shall approve partition of ancestral property and private construction at the requests of the persons concerned. (1915 S. No. 2382)

2434)

Unpartitioned common inheritance shall be co-owned by all branches. (1915 S. No.

Prior to partition of family property, property purchased in the name of the head of a family or in his surname and in the name of a Tong shall not be owned privately by the head of a family unless there is specific supporting evidence. (1915 S. No. 2441)

Whether common property is to be partitioned (a) by apportioning the property itself, (b) by purchase of the whole by one of the co-owners and sharing out the purchase price among other co-owners or (c) by putting it on sale and sharing out its selling price among all shall be agreed by the persons concerned. If no agreement is reached, the government judi- cial organ shall make judgement in accordance with the proportion of their portions, taking the interest of all co-owners and the nature of the common property into consideration. (1916 S. No. 64)

In principle, without consensus of the whole clan, the clan's common property set aside for ritual offerings and certain other purposes shall not be partitioned. However, in excep- tional cases, (e.g. members of the clan often have disputes over administration of their com- mon property and thus the property fails to serve the said purposes completely) then in order to keep peace in the clan, the government judicial organ may approve partition at the requests of the persons concerned. (1916 S. No. 420)

An ancestral hall set up in common by the whole clan is of a commonly owned nature and members of the clan are entitled to use it provided that the use is not contrary to the rules and regulations of the clan; but if such use is forbidden by the rules and regulations, they must not do so. (1919 S. No. 797)

Whether a co-owner may be buried in co-owned ancestral land shall be determined by precedence or by specific rules and regulations if any, and is in no way similar to the usual cases of disposition of co-owned properties where the prior consent of other co-owners must be obtained. (1916 S. No. 963)

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Customary Succession to Land in the New Territories

Section 17 of the Ordinance states:

Annex 4

"In the event of the death of any person in whose name any land is regis- tered otherwise than as a manager, if no grant of probate or administration of the estate of the deceased is made by the high court within three months after such death, the Land Officer, on ascertaining the name of the person entitled to such land in succession to the deceased person. . . shall register the name of the successor..."

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The Land Officer is required to apply Chinese custom and customary right in ascertaining the person entitled to succeed to such land.

4.2 Land holdings in China during the Qing dynasty could be broadly divided into sub-soil holdings and surface cultivation rights. Large clans often held sub-soil rights and cultivation rights were normally enjoyed by clan members or leased to farmers who paid rent to the clans. When farmers opened up previously uncultivated land, they were in theory expected to report this to the local government and pay annual taxes. In practice, they often ended up pay- ing "taxes" to the local clans. (See H. G. H. Nelson's paper entitled "British Land Admini- stration in the New Territories of Hong Kong, and its Effects on Chinese Social Organisation" ).

4.3 When the British took over the New Territories, they recorded all land holdings there over a period from 1900 to 1904. Individual land-owners registered in this survey were probably all holders of surface cultivation rights (a notable exception was the land owned by the Wong Wai Chak Tong of Cheung Chau). According to Chinese custom, rights and re- sponsibilities for such land following the owner's death went to his sons or other successors according to well understood customary rights. This paper examines such rights and seeks to make conclusions intended to assist Land Officers in carrying out their duties under s. 17 of the Ordinance.

The economic basis of succession to land

4.4 The rural land-owner in China did not enjoy the same freedom to dispose of his land as his English counterpart in Britain at the end of the last century. In traditional Qing dynasty Chinese rural communities, land was not felt to vest in individuals as beneficial owners, but to vest in the clan. Most rural land "owners" gained their land through succession supple- mented by purchases of more land if they could afford it, or acquisition through cultivating wasteland. In his article "The New Law of Succession in Hong Kong" (H.K. Law Journal 1973), D. M. Emrys Evans described devolution of land on death as "a passing of control of family property from one generation to another with consequential effects on family struc- ture". The effects on family structure were a consequence of division of the land between the deceased's sons. Division involved not so much the strict question of ownership of land as of who within the clan had the benefits and obligations attached to certain portions of clan land.

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4.5

By very ancient custom (for example during the Tang dynasty), all of a son's land was at the disposal of his father while the latter was alive; but this practice died out centuries ago. In the New Territories until very recently, it was the custom that any villager wishing to dis- pose of his land should first offer it within his clan rather than selling it to outsiders. Clauses to this effect were to be found in nearly all customary land deeds; but judging from the amount of land sold to outsiders, they may have been no more than a formality.

4.6 According to Chinese custom, men took wives from outside their clans, and their daughters were always married to members of other clans. The basic principle of customary succession to land was that daughters could not succeed as owners of land because on mar- riage, their land would become their husband's property (and after his death, their sons'); thus land would be lost from the clan's shared wealth. The same principle applied also to widows, although less strongly if it was clear that they would never remarry. In the Qing dynasty, even when land-owners exceptionally made provision in a will for their wife or daughters to suc- ceed to their property, that was not considered enough to override any claims by legitimate natural sons.

4.7 The custom of keeping land within the clan was very strong. Land was and is consid- ered by New Territories villagers to be the soundest form of investment and land holdings form the basis of clan wealth. Much land held individually by clan members could potentially become commonly-owned clan land under the Customary Land Trust system.

Succession by natural sons

4.8 A Chinese man traditionally feels that he owes his sons a house to live in and the means of making a living so that they would not lack the means to prosper. The normal mode of suc- cession according to customary right is that a land-owner's sons succeed to his land as ten- ants in common. If there is only one son, he gets everything. Division of the property nor- mally takes place later. The estate of the deceased may include debts as well as assets: the sons are bound to accept both.

4.9

Successors to land traditionally divide up the property after the death of the widow. If they wish to divide it before the widow dies, they must get her permission. The widow is en- titled to ensure that she is provided for during her lifetime and that funds are available for dowry for unmarried daughters. Married daughters get nothing as they have already left the clan.

4.10 Property is normally divided equally among all the brothers, but the eldest brother or the father of the eldest grandson may be given an extra share in recognition of his responsibil- ity for ancestor worship and the maintenance of his mother and unmarried sisters. The divi- sion of land may also result in a piece of land being set aside for ancestor worship: such land becomes common clan property under the customary land trust system. Occasionally, divi- sion took place during the lifetime of the father - especially where there were disputes or ill feeling among the sons (sometimes occasioned by the ambitions of their wives).

Customary intestate succession

4.11 Traditionally, Chinese people did not prepare wills containing details of how their prop- erty was to be distributed after their death. Written wills were considered undesirable because

50

their preparation gave rise to morbid thoughts, and unnecessary because succession to prop- erty followed well-established customary practice. Sometimes wills were written exhorting a man's successors to good conduct or giving permission for his widow to remarry. Occasion- ally, a dead man's sons would prepare a "will" in the father's name after his death declaring that they would follow wishes he had expressed during his life. A recent survey showed that New Territories villagers still consider wills unnecessary.

4.12 According to Confucian ethics, a man had a duty to his ancestors to provide sons. Men- cius went as far as to state that failure to provide an heir was the worst crime a man could commit against his ancestors, although later commentators softened this stricture. A man who reached the age of forty without his wife having had a son was considered justified in finding a concubine to serve the purpose. Research into traditional clan rules by Hui-chen Wang Liu (The Traditional Chinese Clan Rules., Pub. Association for Asian Studies, 1959), shows that many clans accepted the taking of concubines for the purpose of begetting sons, but not for the sake of indulgence. It would, of course, have required reasonable wealth for a person to afford to keep a wife and concubine. Failing to get an heir by his wife or concubine, he could adopt a male heir. Heirs obtained by any of these means had the right to succeed to his land

4.13 There is a great difference between the English and Chinese customary concepts of in- testate succession. English legal principles envisage a series of priorities for claims against an intestate's estate with the widow at the top, followed by children, parents and so on. The Chi- nese principle is that the estate must remain within the clan through succession by a male heir, by any means possible. But natural sons aside, there is very limited priority of claim to being adopted as heir: that is a matter of the preference expressed by the deceased or his widow, approved by the clan elders.

Succession by widows or daughters

4.14 It was accepted that widows or daughters might exceptionally succeed to land in the to- tal absence of any heir (for example, where a line became extinct) if no suitable heir could be found within the clan. Women who succeeded to land in this way were not expected to re- marry, and it is arguable that their position in that case was as trustees-for-life. Following the woman's death, if there was no-one with a legitimate claim to the estate by succession, the land usually reverted to members of the clan on the basis of the closest blood relationship. The government would claim bona vacantia only where no taxes for the land were paid: clans usually took care that this did not happen.

Succession by an adopted heir

4.15 A man who knew he would be without a natural heir could adopt one. Such adoptions had to be made from a younger generation: adoptions from an older or from the same genera- tion are contrary to basic principles of clan structure. An adopted son usually gave up all du- ties and benefits in relation to his natural father, unless he was the only natural son, in which case he might be "shared" as heir between the natural and adoptive fathers. While the prin- ciple of selecting a close nephew as successor represented the ideal solution, it was accept- able for a land-owner to depart from the ideal if choosing a nephew would give rise to prob- lems in the clan, or even if he found a particularly promising successor outside the clan. Most

51

clans, however, strongly preferred a successor to share the clan's surname. An heir could not be regarded as legitimate unless the choice had the agreement of the clan or village elders.

4.16 When a married man died with neither male issue nor adoptive son, it was up to his widow to select a successor by posthumous adoption. If she was pregnant at the time of her husband's death, she informed the clan leaders so that any prior claim of the natural son (if any) could be provided for. The widow's choice was subject to the agreement of the clan and village elders. She normally chose a successor on the same principle as her husband would have done (i.e. from among her husband's nephews). Occasionally, land-owners died unmar- ried and without heirs. Clan leaders then appointed an heir to the estate, to be responsible for ancestor worship.

4.17 Foundlings were sometimes adopted and brought up with the new family name. This happened more frequently during periods of civil disorder (e.g. the Taiping Rebellion). How- ever, such adoptions were not regarded by custom as entitling the adopted foundling to suc- ceed to property unless the clan agreed that it should be so.

4.18 An adopted son had to be known and recognised by the clan. Such adoptions were nor- mally marked by a ceremony to "inform the ancestors", a feast, and the adoption was re- corded in the family annals. An adopted son not known to the clan was regarded as illegiti- mate. In an effort to legitimise an adoption as much as possible, villagers often invited village elders to observe the rites, even when they were from a different clan.

Children of wives and concubines

4.19 Although the taking of a concubine was normally justified for the purpose of begetting sons, it was common to take them for indulgence or as an outward sign of affluence. In Hong Kong, concubinage ended in 1971, although existing concubinages as at 1971 continue to be recognised.

4.20 Sons born to concubines share in succession to land on the death of their father in the same way as those of the main wife. Disputes can arise as to whether a woman is genuinely a concubine or whether she is a mistress. A basic rule is that a concubine must be recognised as such by the first wife and the family. On coming into the household, a concubine usually had to perform a ceremony (yap gung) and worship her husband's ancestors. Children of a woman who had not been properly recognised in this way were not entitled to succeed to their father's estate.

Things which go wrong

4.21 According to a study carried out in Tsuen Wan (A Report on the Erosion of Chinese Customary Succession in the New Territories by D. J. Wilmshurst, 1980), the most serious attacks on customary succession came from women (widows or daughters) dissatisfied at their exclusion from a share of the estate of the deceased. Wilmshurst points out that a will which complies with the Wills Ordinance (Cap. 30) is normally able to receive probate in the High Court. Unfortunately, the Probate and Administration Ordinance does not apply to land in the New Territories to which Part II of the N. T. Ordinance applies, and so unless such pro- bates are obtained within three months of death (almost impossible), Land Officers cannot

52

register them. This can give rise to a situation where a woman has obtained probate on a valid will bequeathing property to her, but the Land Officer is bound by customary law to register the land in the name of a male heir.

4.22 An equally serious problem arises when widows or daughters make a claim to succes- sion following an intestate death. Here, Wilmshurst points out, the rural community usually takes the grant of Letters of Administration as official sanction of succession.

4.23 Such an assumption is incorrect: the Intestates' Estates Ordinance and the Probate and Administration Ordinance do not apply to land in the New Territories (including New Kowloon) to which Part II of Cap. 97 applies, and the application of Chinese customary right to such land is mandatory. Therefore, if a daughter to whom letters of administration have been granted applies to have his estate registered in her name, a Land Officer cannot approve the application because it would not be in accordance with Chinese customary right.

4.24 Another frequent problem is that people may not apply to the Land Officer for many years after the death of a land-owner. This happens either because there are debts involved in the estate, or the land is not considered of any value and the registry was too far away to make it worth the visit, or because the villagers never saw the importance of registration with the authorities. The land may, many years later, become valuable because of development and a person purporting to be the successor then applies to the Land Officer to succeed. Here the main difficulty lies in ascertaining the facts, particularly after the loss of so much docu- mentation during the Japanese occupation. If the applicant claims to be a son, then the family annals or other family papers may provide evidence. A statement from the village representa- tive or clan head corroborating the applicant's claim can also be useful.

4.25 Occasionally, a late claimant may say he is the adopted heir of the deceased. In such cases it is important to obtain the agreement of the village and the clan head as without this, the claim would have been considered invalid according to custom.

4.26 When there is a dispute over a claim by an heir purporting to be the son of a concubine, the claimant must show that the concubine was accepted by the family, otherwise he is ille- gitimate. If his claimed parents are dead, it can be difficult to prove that the first wife con- sented to the concubine. Concubinage was normally a family matter and not a clan matter, so the views of village elders may not be relevant in such cases.

Solving succession disputes

4.27 To apply Chinese custom to the solving of succession disputes in the New Territories, it is necessary to be aware that traditionally, all members of a clan felt that they had a legitimate interest in the private land holdings of all clan members. There can be no succession to com- mon clan land or customary trust land for which managers have been appointed under s. 15 of the Ordinance (and indeed s. 17 of the Ordinance does not permit it). A solution is generally correct if it results in land devolving within the clan of the deceased owner, preferably through a male heir. A solution which placed land in the hands of an outsider, or an unmar- ried woman or widow who would subsequently marry, would be contrary to custom. The most reasonable demands of equality for women cannot, unfortunately, be entertained with- out going against custom.

53

4.28 Chinese customary law of succession does not vary from village to village in the New Territories, and so statements by elders as to local custom are of little help. However, the only documentary evidence on familial relationships and adoptions is normally kept by the clan heads in the family annals. These are usually the best evidence available in such dis- putes.

4.29 Settlement of a succession dispute by a means not supported by the clan, and particu- larly the deceased's clan branch, is unsafe and at variance with custom. Ideally, the clan should settle such disputes internally as far as possible. One set of clan rules which discusses this subject in detail states that claims to succession should be resolved internally by the clan branch concerned: the clan as a whole should only mediate if the branch fails to resolve the issue "to avoid the scandal of a public squabble between brothers".

Conclusion

4.30 An examination of cases in the law courts concerning customary succession shows that most disputes centre around factual detail. The general rules are easy to understand, but it is often difficult to be sure of the facts of a case, especially when death occured in the distant past. This paper has tried to look at the underlying principles of customary succession, and has glossed over the fact that nowadays, most Chinese women find their exclusion from suc- cession to land grossly unfair and outdated. Unfortunately, it is impossible to change custom. The only solution to that particular injustice would be to change the law, with whatever con- sequences that might have in the long term for the cohesion of village communities.

54

The following is a translation of excerpts from the Da Li Yuan Cases (1912 - 1928) dealing with common inheritance.

If brothers living together as members of a single family each have an equal amount of property and later acquire wealth, their property shall be treated as having been developed from the original properties if no specific reasons are given. Appropriate shares are therefore allocated to their descendants. (1914 S. No. 366)

Real estates shall be treated as realty belonging to individuals. Therefore, when a co- owner builds a house at his own expense on a lot of co-owned land, the house belongs to the builder and shall not be treated as a co-owned property. (1914 S. No. 892)

When a due part(s) of one or several of the co-owners disappears, the due parts of the other co-owners shall extend accordingly. (1914 S. No. 1207)

All property which cannot be proved as being a private property held in sole ownership by an owner whose legacies have not yet been partitioned, and who is still living together with and holding properties in co-ownership with other co-owners, shall be treated as co- owned properties. (1914 S. No. 48)

Prior to partition of family property, property purchased in the name of the head of a family or in his surname and in the name of a Tong shall not be owned privately by the head of a family unless there is specific supporting evidence. (1915 S. No. 2441)

No one of the brothers still living in the same family who co-inherit the estates of their deceased father may dispose the estates of his own accord without unanimous consent; but a recognized steward may, for the payment of commonly shared expenses, dispose of all or a part of the estate. Other co-owners, except by raising objections at the time of the disposal, shall not regard the disposition as illegitimate on the ground that it is not authorized. (1917 S. No. 279)

The ownership of an alimony estate (an estate for the maintenance of a widow) remains with the person who set up the estate. If a co-owned property is used as the alimony estate, then after the decease of the receiver of alimony, the estate shall be partitioned accordingly. (1918 S. No. 1136)

There being no specification, the shares among the co-owners may be reckoned as equal. (1919 S. No. 160)

If an estate is co-owned by four brothers but not owned by one person, when any one of the co-owners dies without an heir, his share will go to other co-owners according to the prin- ciple of co-ownership. (1919 S. No. 989)

55

Annex 5

Bibliography on Chinese Custom and Customary Right in Connection with the N.T. Ordinance

BAKER, H.D.R., 1968, A Chinese Lineage village: Sheung Shui, London &

Stanford

BAKER, H.D.R., 1979, Chinese Family and Kinship, London & New York

J. DYER BALL, 1925 (Repr. 1984), Things Chinese, Hong Kong Oxford University

Press

BREDON, J., 1927, The moon year, a record of Chinese customs and festivals,

Shanghai

V.R. BURKHARDT, 1982, Chinese Creeds and Customs Vol. I, II & III, South

China Morning Post Ltd.

CHAO, PAUL, 1983, Chinese Kinship, Kegan Paul International, London, Boston

and Melbourne

ENDACOTT, G.B., 1958, A History of Hong Kong, London & Hong Kong

FEI HSIAO-TUNG AND CHANG CHIH-I, 1949, Earthbound China, London

FAURE, DAVID, 1986, The Structure of Chinese Rural Society: Lineage and Village in the eastern N.T., Hong Kong, Hong Kong Oxford University Press

FAURE, DAVID, HAYES, JAMES, BIRCH, ALLAN (editors), 1984, From Village to City, Studies in the Traditional Roots of Hong Kong Society, Hong Kong, Centre of Asian Studies, University of Hong Kong

FREEDMAN, M., 1958, Lineage Organization in Southeastern China, London

GROVES, R.G., 1964, The Origins of Two Market Towns in the N.T., in Royal Asiatic Society, Hong Kong Branch, Aspects of Social Organization in the New Territories, Hong Kong

HAYES, J.W., 1977, The Hong Kong Region 1850-1911, Institutions and Leaderships in Town and Countryside, Hamden, Comn, Archon Books

56

HAYES, J.W., 1983, The Rural Communities of Hong Kong, Studies and Themes,

Hong Kong Oxford University Press

HIDING, K., 1966, Chinesisches traditionelles Erbrecht, Berlin

HSIEN CHIN-HU, 1948, The Common Descent Group in China and its Functions,

Viking Fund Publications in Anthropology

HO PING-TI, 1959, Studies on the Population of China, 1368 - 1953, Cambridge,

Mass

HOANG, P., 1897, Notions Techniques sur la Propriété en Chine, avec un Choix d'Actes et de Documents Officials, (Variétés Sinologiques, No. 11), Shanghai

HSIAO KUNG-CHUAN, 1960, Rural China: Imperial Control in the Nineteenth

Century, Seattle

HUI-CHEN WANG LIU, 1959, The Traditional Chinese Clan Rules, J.J. Augustin

Incorporated Publisher, Lourst Valley, New York

NG Y.L, PETER (HUGH D.R. BAKER), 1983, New Peace County, Hong Kong

University Press

NIVISON, DAVID S. AND WRIGHT, ARTHUR F., 1959, Confucianism in Action,

Standford University Press

POTTER, J.M., 1968, Capitalism and the Chinese Peasant, University of California,

Berkeley

STRICKLAND, G., 1953, Chinese Law and Custom in Hong Kong; Report of a

Committee Appointed by the Governor in October, 1948, Hong Kong

WIEGER, 1980, Moral Tenets and Customs in China, New York

'Ta Ch'ing Lu Li' The Imperial Code of Penal Laws, 1966, Cheng Wen Publishing

Company, Taipei

The Chinese Supreme Court Decisions, 1923, The Commission on Extra-Territorial-

ity, Peking

The Civil Code of the Republic of China, 1930, Translated into English by Ching-lin

Hsia, James L.E. Chow & Yukon Chang, Shanghai, Kelly & Walsh, Ltd.

57

Journals

AIJMER, L.G., 1967, Expansion and Extension in Hakka Society, Journal of the

H.K. Branch of the Royal Asiatic Society, Page 42-79

BAKER, H.D.R., 1966, The Five Great Clans of the New Territories, Journal of the

H.K. Branch of the Royal Asiatic Society, Vol. 6 p. 25

BALFOUR, S.F., 1941, Hong Kong Before the British, T'ien Hsia Monthly, Vol. XI,

nos. 4 & 5, Shanghai

FREEDMAN, M.,1950, Colonial Law and Chinese Society, Journal of the Royal

Anthropological Institute, Vol. 80

HAYES, J.W., 1962, The Pattern of Life in the New Territories in 1898, Journal of

the H.K. Branch of the Royal Asiatic Society, Vol. 2, P.75

KROKOR, E., 1959, The concept of Property in Chinese Customary Law, Transac-

tions of the Asiatic Society of Japan, Series III, Vol. 7

NELSON, H.G.H., 1969, The Chinese Descent System and the Occupancy Level of

Village Houses, Journal of the H.K. Branch of Royal Asiatic Society, Vol. 9

PALMER, MICHAEL J.E., 1987, The Surface Subsoil Form of Divided Ownership

in Late Imperial China: some Examples from the N.T. of H.K., Modern Asian Studies, Vol. 21, Page 1-119

SUNG HOK-PANG, 1935-1938, Legends and Stories of the New Territories, The Hong Kong Naturalist, Vols. 6,7 & 8

TAYLOR, W.A., A Note on Land Measurement and Tenant Rentals in Hong Kong, Journal of the H.K. Branch of the Royal Asiatic Society, Vol. 6, p.165

Reports and Unpublished Theses

FREEDMAN, M., 1963, A Report on Social Research in the New Territories (mine)

GOMPERTZ, H.H.J., 1901, Some Notes on Land Tenure in the New Territories, Ap-

pendix No. 1 to Lockhart, J.H.S., Report on the New Territo- ries for the Year 1900, H.K. Sessional Papers, No. 28/1901

LOCKHART, J.H.S., 1900, Report on the New Territory at Hong Kong, February,

1900, and Memorandum on Land, H.K. Sessional Papers, No. 15/1900

58

LOCKHART, J.H.S., 1901, Report on the New Territory for the Year 1900, H.K.

Sessional Papers, No. 28/1901

NELSON, H.G.H., 1966, An Anthropological Study of Inheritance and Succession in

Traditional China, Unpubl, M.A. Thesis, Univ. of London

ORME, G.N., 1912, Report on the New Territories, 1899 - 1912, H.K. Sessional

Papers, No. 11/1922

D.J. WILMSHURST, 1980, Erosion of Customary Succession in the New Territories

Articles

CHIU, Y. VERMIER, 1957, Marriage Laws of the Ching Dynasty, The Republic of

China and Communist China

D.M. EMRYS EVANS, 1971, Common Law in a Chinese setting - The Kernel or the

Nut?

D.M. EMRYS EVANS, 1983, The New Law of Succession in Hong Kong, in

H.K.L.J. (1983) Vol. 3 No.1

D.M. EMRYS EVANS, The Law of Succession in Hong Kong: Current problems

and possible reforms, Law Lectures for Practitioners

E.S. HAYDON, 1962, Chinese Customary Law in Hong Kong's New Territories

E.S. HAYDON, 1962, The Choice of Chinese Customary Law in Hong Kong

J. W. HAYES, 1962, Buddhist Chai Tong at Luk Wu, Lantau

B.S. MCELNEY, 1972, Distribution under the Intestates' Estates Ordinance 1971,

in H.K.L.J. (1971) Vol. 2, No. 2

M. J. MEIJER, 1971, Marriage Law and Policy in the Chinese People's Republic

NELSON H.G.H., 1969, British Land Administration in the N.T. of Hong Kong, and

its effects on Chinese social organization

PEGG, LEONARD, Chinese Marriage, Concubinage and Divorce in Contemporary

Hong Kong.

RULES OF THE IP KWONG TAI TONG, Hong Kong, 1917

59

Court Cases

Marriage

Tang Ho foon v. Leung Sek, 1955

Au Hung Fat and Lam Lai Ha, 1959

Chan Lee Kuen and Chan Sui Fai, 1966

Chung Kai Fan and Lau Wai King, 1966

Succession / Trusteeship

In the matter of the Estate of Tso Wing Yung - A Question of Ancestral Worship,

1891

Ho Sau Lam v. Ho Cheng Shi 1915, 1916

Ho Tsz Tsun v.s. Ho Au Shi, Yeung Sui Chi, Ho Hong Chung, Ho Cheng Shi and

Chan Ho Shi, 1915

Ho Cheng Shi v. Ho Sau Lam, 1920

Tang Choy Hong and Tang Shing Mo, Tang Ping Chuen and Tang Kan Shui, 1949

In the Goods of Chan Tse Shi, late of No. 29B Wyndham Street, Victoria in the

Colony of Hong Kong, Widow, deceased, 1954

Wong Yu Shi and others v. Wong Ying Kuen, 1957

Ng Ying Ho and another and Tam Suen Yu, 1963

Wong Kam Ying and Ho Po Chun and Man Chi Tai, 1967

Tse Moon Sak and Tse Hung and others, 1969

Wong Ying Kuen and Wong Yu Shi and others, 1969

Tso and Tong Properties

Cheung Sau Tim v. Cheung Yui Lam, 1948

Chan U and others and Wong Hing and others, 1958

Chu Tak Hing and others v. Chu Chan Cheung Kui and others, 1968

Record of proceedings on Appeal from the Court of Appeal of Hong Kong in the Privy Council, Appeal No. 76 of 1983 (High Court Miscellaneous Proceedings Action No. 982/1982)

60

YOHR

DIEU ET

MON

DROIT

LAWS OF HONG KONG

NEW TERRITORIES ORDINANCE

CHAPTER 97

REVISED EDITION 1984

PRINTED AND PUBLISHED BY THE GOVERNMENT PRINTER

HONG KONG

Annex 6

1984 Ed.]

New Territories

Section

[CAP. 97

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CHAPTER 97

NEW TERRITORIES ORDINANCE

ARRANGEMENT OF SECTIONS

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PART I

REGULATION OF THE NEW TERRITORIES

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Application of Part II to land in New Territories

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Vesting of land in New Territories in the Crown

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Jurisdiction in land matters...

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Interpretation of "Land Office", etc.

Preparation, receipt and registration of memorials

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Certification of memorials

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CAP.97]

New Territories

[1984 Ed.

Originally 34 of 1910.

(Cap. 97, 1950.)

CHAPTER 97

NEW TERRITORIES

To consolidate and amend the laws relating to the administration and

regulation of the New Territories.

30 of 1911.

50 of 1911.

51 of 1911.

8 of 1912.

ge

12 of 1912.

13 of 1912.

21 of 1912.

23 of 1912.

43 of 1912.

16 of 1913.

21 of 1922.

27 of 1923.

5 of 1924.

6 of 1930.

36 of 1931.

7 of 1933.

25 of 1933.

38 of 1935.

18 of 1938.

33 of 1939.

17 of 1940.

20 of 1948.

62 of 1948.

9 of 1950.

1 of 1953.

18 of 1957.

30 of 1960.

13 of 1961.*

1 of 1962.

38 of 1969.

72 of 1971.

L.N. 57/74. L.N. 94/74. L.N. 370/81. L.N. 76/82. L.N. 14/83. 62 of 1984.

[28 October 1910.]

Short title.

Interpretation.

PART I

REGULATION OF THE NEW TERRITORIES

1. This Ordinance may be cited as the New Territories Ordinance.

(Amended, 5 of 1924, s. 6)

2. In this Ordinance, unless the context otherwise requires—

"Secretary for District Administration" includes Regional Secretary (New Territories) and District Officer; (Replaced, 62 of 1948, s. 2. Amended, 13 of 1961, s. 2; L.N. 94/74; L.N. 370/81 and L.N. 14/83)

"possession" in relation to land includes receipt of income;

(Amended, 20 of 1948, s. 4)

"instrument" includes deed, will, power of attorney, Act of Parlia- ment or Ordinance; (Amended, 43 of 1912, Supp. Schedule, G.N. 246/13)

*Note: Transitional provisions, see sec. 7 thereof.

1984 Ed.]

New Territories

[CAP. 97

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"land" includes land covered by water or within the flow of the sea and houses and other buildings and any undivided share in land and every estate and interest in land and also includes any rent or profit issuing out of land and any easement affecting land and also any market-building or portion of such building and any rent or profit issuing out of any market-building or portion of such building; (Replaced, 16 of 1913, s. 2)

"mortgage" includes any charge on any land for securing money, or money's worth; "mortgage money" means money, or money's worth, secured by mortgage; "mortgagor" includes any person deriving title under the original mortgagor, or entitled to redeem a mortgage, according to his estate, interest or right, in the mortgaged property; "mortgagee" includes any person deriving title under the original mortgagee; and "mortgagee in possession" is a mortgagee who, in right of the mortgage, has entered into and is in possession of the mort- gaged property. (Amended, 50 of 1911, and 12 of 1912, Schedule)

(Amended, 50 of 1911; 51 of 1911; 8 of 1912, s. 78; 12 of 1912, Schedule; 13 of 1912, Schedule; 43 of 1912, Supp. Schedule, G.N. 246/13 and 62 of 1984, s. 66)

3. (1) Without prejudice to any other provision of law the Governor shall have power to appoint a Secretary for District Administration, a Regional Secretary (New Territories) and such number of District Officers and Assistant District Officers as he may consider necessary for the administration of the New Territories. (Added, 62 of 1948, s. 2. Amended, 20 of 1948, s. 4 and 13 of 1961, s. 3)

(2) Any District Officer, appointed by the Governor to admin- ister or entrusted by the Secretary for District Administration with the administration of any particular district of the New Territories, may be styled and referred to as the District Officer for such district. (Added, 62 of 1948, s. 2)

(Amended, L.N. 94/74; L.N. 370/81 and L.N. 14/83)

4. The Governor in Council may make rules providing for the levying, collection, recovery by legal proceedings, and safe custody, of such rents, rates, taxes, and contributions, from the New Territo- ries as the Governor in Council may, in his absolute discretion, think fit, and for the keeping of accounts thereof.

(Amended, 33 of 1939, Schedule; 20 of 1948, s. 4, and 30 of 1960, s. 148)

5. All rules made under section 4 shall be published in the Gazette and shall be notified in Chinese in the New Territories in such manner as the Secretary for District Administration may direct.

(Replaced, 9 of 1950, Schedule. Amended, 20 of 1948, s. 4; L.N. 94/74; L.N. 370/81 and L.N. 14/83)

Power of Governor to appoint officers for the administration

of the

New Territories.

Power to make rules.

Publication

of rules.

3

4

Penalty for

breach of rules.

CAP. 97]

New Territories

[1984 Ed.

6. Every person who commits a breach of any rule made under section 4 shall be liable on summary conviction to a fine of $1,000 or to imprisonment for 6 months.

(Amended, 30 of 1911, s. 4; 50 of 1911; 12 of 1912, Schedule; 21 of 1912, s. 2; 43 of 1912, Supp. Schedule, G.N. 246/13; 5 of 1924, Schedule; 7 of 1933, s. 3; 20 of 1948, s. 4, and 62 of 1948, s. 2)

Application of Part II to land in New Territories.

Vesting of land in

New Territories in the Crown.

Authority of Land Officer.

PART II

LAND

7. (1) This Part applies to the New Territories only. (Amended, 5 of 1924, Schedule)

(2) Upon the application of the registered owner of the lease of any land which has been purchased from the Crown since 17 April 1899, and in respect of which a separate Crown lease has been or is intended to be issued, or without such application in the case of a new grant of land by the Crown, the Governor may exempt the said land from the provisions of this Part. (Amended, 50 of 1911; 12 of 1912, Schedule; 43 of 1912, Supp. Schedule, G.N. 246/13; 9 of 1950, Schedule, and 1 of 1962, s. 2(a))

(3) Upon the application of the registered owner of any land not covered by the provisions of subsection (2), and upon proof to the satisfaction of the Land Officer of the title of such owner and surrender of the lease of such land to the Crown, the Governor may direct a new Crown lease for such land to be issued after due survey thereof has been made and the prescribed fees have been paid, and the Governor may thereupon exempt the said land from the provisions of this Part: Provided that, in any case in which such application refers to land of such small value that, in the opinion of the Governor, it is undesirable to grant exemption, the Governor may refuse to grant the same. (Amended, 50 of 1911; 51 of 1911; 12 of 1912, Schedule; 13 of 1912, Schedule; 5 of 1924, s. 8; 9 of 1950, Schedule, and 1 of 1962, s. 2(b))

8.

All land in the New Territories is hereby declared to be and to have been from 23 July 1900, the property of the Crown, and all persons in occupation of any such land shall be deemed to be trespassers as against the Crown, unless such occupation is autho- rized by grant from the Crown, or by other title allowed under this Ordinance, or by licence from the Governor or from some Government officer having authority to grant such licence.

(Amended, 50 of 1911; 12 of 1912, Schedule; 23 of 1912, s. 6, and 33 of 1939, Schedule)

9. (1) The Land Officer is hereby authorized to carry into execution the provisions of this Part. (Amended, 51 of 1911; 13 of 1912, Schedule; 43 of 1912, Supp. Schedule, G.N. 246/13, and 5 of 1924, Schedule)

1984 Ed.]

New Territories

[CAP. 97

5

(2) Where by any enactment anything is required or appointed to be done by the Land Officer, the same may be lawfully done by any Assistant Land Officer appointed by the Governor, who shall have the same powers as are conferred upon the Land Officer by this Ordinance, or by the Secretary for District Administration, who for the purposes of this Part shall be deemed to be an Assistant Land Officer. (Amended, 51 of 1911; 13 of 1912, Schedule; 5 of 1924, s. 9; 33 of 1939, Schedule; 62 of 1948, s. 2; L.N. 94/74; L.N. 370/81 and L.N. 14/83)

10. (1) Where in any Ordinance the expression "Land Office" or "District Land Office" is used it shall include such places as the Governor in Council may by order from time to time approve as a New Territories Land Office. Save in so far as any such order shall otherwise provide each of the following shall, as from the com- mencement of this Ordinance, be deemed to have been approved as a New Territories Land Office by order of the Governor in Council duly made under this subsection, namely, the respective offices now known and used as the District Land Office, Kowloon, the District Land Office, Tai Po, and the District Land Office, Ping Shan.

(2) In this Ordinance "appropriate New Territories Land Office" means in relation to any particular land such place approved under subsection (1) in which the register of deeds containing the last entry in respect of such land shall for the time being be kept, or, if there is no register of deeds, the place where the last memorial affecting such land is for the time being kept.

(Replaced, 62 of 1948, s. 2)

11. (1) A memorial of any deed, will or other instrument, or any judgment, order or lis pendens, in respect of or affecting land, may be prepared and shall be received at such places in addition to a New Territories Land Office as the Land Officer shall approve:

Provided that the registration of any such memorial shall be deemed to have been effected on the date and at the time that an acknowledgement of the receipt thereof shall be endorsed thereon at the appropriate New Territories Land Office. (Replaced, 62 of 1948, s. 2)

(2) Notwithstanding anything in this or any other enactment, the registration of any deed, will, or other instrument, or any judgment, order or lis pendens, in respect of or affecting land, shall be deemed to have been validly effected if effected at any place approved for such purpose by the Land Officer.

(Replaced, 62 of 1948, s. 2. Amended, 20 of 1948, s. 4; L.N. 94/74; L.N. 370/81 and L.N. 76/82)

12. The High Court and the District Court shall have jurisdic- tion to hear and determine all questions and disputes at law or in equity in connexion with or in any wise arising out of or regarding any land in the New Territories:

Interpretation of "Land Office”,

etc.

Preparation, receipt and registration of memorials.

Jurisdiction in land matters.

;

6

CAP. 97]

High Court or the District Court may

enforce Chinese customs.

Registration of manager of "t'ong", etc.

Exemption of certain clans from the Companies Ordinance.

New Territories

[1984 Ed.

Provided that nothing in this section shall confer any greater jurisdiction upon the District Court than it exercises from time to time with regard to questions and disputes at law or in equity in connexion with or in any wise arising out of or regarding land situate in any part of the Colony other than the New Territories.

(Replaced, 13 of 1961, s. 5. Amended, L.N. 57/74)

13. In any proceedings in the High Court or the District Court in relation to land in the New Territories, the court shall have power to recognize and enforce any Chinese custom or customary right affecting such land.

(Amended, 1 of 1953, Fourth Schedule)

14. [Repealed, 38 of 1969, s. 2]

15. Whenever any land is held from the Crown under lease or other grant, agreement or licence in the name of a clan, family or t'ong, such clan, family or t'ong shall appoint a manager to represent it. Every such appointment shall be reported at the appropriate New Territories Land Office, and the Land Officer on receiving such proof as he may require of such appointment shall, if he approves thereof, register the name of the said manager who shall, after giving such notices as may be prescribed, have full power to dispose of or in any way deal with the said land as if he were sole owner thereof, subject to the consent of the Land Officer, and shall be personally liable for the payment of all rents and charges and for the observance of all covenants and conditions in respect of the said land. Every instrument relating to land held by a clan, family or t'ong, which is executed or signed by the registered manager thereof in the presence of the Land Officer and is attested by him, shall be as effectual for all purposes as if it had been executed or signed by all the members of the said clan, family or t'ong. The Land Officer may on good cause shown cancel the appointment of any manager and select and register a new manager in his place. If the members of any clan, family or t'ong holding land do not within 3 months after the acquisition of the land make and prove the appointment of a manager, or within 3 months after any change of manager prove the appointment of a new manager, it shall be lawful for the Crown to re-enter upon the land held by such clan, family or t'ong, which shall thereupon become forfeited. Such re-entry shall be effected by the registration of a memorial thereof in the appropriate New Territories Land Office.

(Amended, 50 of 1911, s. 4; 51 of 1911; 12 of 1912, Schedule; 13 of 1912, Schedule; 33 of 1939, Schedule, and 20 of 1948, s. 4)

16. Any clan, family or t'ong owning land on 28 October 1910, in respect of which a manager has been duly registered under this Ordinance, shall not, so long as such land is certified by the Land Officer as being used for agricultural, religious, educational or charitable purposes or such other uses of a similar nature as are

1984 Ed.]

New Territories

[CAP. 97

7

recognized by established local custom, or for dwelling-houses occupied by bona fide members of the clan, family or t'ong, be required to be registered under the Companies Ordinance, although such clan, family or t'ong may consist of more than 20 members.

(Amended, 51 of 1911; 13 of 1912, Schedule; 43 of 1912, Supp. Schedule, G.N. 246/13; 33 of 1939, Schedule; 5 of 1924, Schedule, and 20 of 1948, s. 4)

17. In the event of the death of any person in whose name any land is registered otherwise than as a manager, if no grant of probate or administration of the estate of the deceased is made by the High Court within 3 months after such death, the Land Officer, on ascertaining the name of the person who is entitled to such land in succession to the deceased person (hereinafter called the successor), and on being satisfied that any estate duty which may be due has been paid, shall register the name of the successor, and upon such registration being effected the said land shall vest in the successor for all the estate and interest of the deceased person therein, or for such estate and interest as shall be entered on the register by the Land Officer against the entry of the name of the successor. On the registration of a successor, the fees fixed by regulations shall be paid to the Land Officer by the successor, but no probate fees shall be payable, anything in the Probate and Administration Ordinance to the contrary notwithstanding. The registered successor shall be liable for the debts of the deceased in the same manner and to the same extent as if a grant of probate or administration had been made to him:

Provided that if a grant of probate or administration of the estate of the deceased is made by the High Court within the period above specified, the grantee therein named shall be registered as the successor and the fees referred to in this section shall not be payable.

(Amended, 50 of 1911; 51 of 1911; 12 of 1912, Schedule; 13 of 1912, Schedule; 43 of 1912, Supp. Schedule, G.N. 246/13; 38 of 1935, s. 3, and 33 of 1939, Schedule)

18. Whenever any land is vested in a minor, it shall be lawful for the Land Officer to appoint some fit person to be a trustee thereof for such minor during his minority and to remove any such trustee and to appoint any new trustee. Every such appointment shall be registered by the Land Officer in the appropriate New Territories Land Office, and upon registration the land the subject of the trust shall vest in the registered trustee for all the estate and interest of the minor therein, and upon registration of the removal of any trustee the land shall divest from the trustee so removed and vest in the continuing trustee or any newly registered trustee as the case may be. The Land Officer before registering a trustee may require him to give security in such manner and to such amount as he may think fit for the due execution of the trust. With the consent of the Land Officer a trustee may buy, sell, mortgage, lease or otherwise deal with or dispose of any property to the like extent as if he were

(Cap. 32.)

Registration of successors to deceased landholder where no probate granted. [cf. Cap. 111, s. 10(d), (e).]

(Cap. 10.)

Power to appoint trustees for

minors.

8

CAP. 971

New Territories

[1984 Ed.

(Cap. 29.)

Certification of memorials.

(Cap. 128.)

Land Officer not required to keep index.

Power to make

regulations under Part II.

Certified copies receivable in evidence.

Part not to affect Crown, etc.

the beneficial owner thereof, anything in the Trustee Ordinance, to the contrary notwithstanding.

(Amended, 50 of 1911, s. 4; 51 of 1911; 13 of 1912, Schedule; 5 of 1924, Schedule, and 20 of 1948, s. 4)

19. For the purposes of this Ordinance, where a memorial of any deed, will or other instrument is certified by the Land Officer as correct, it shall not be necessary for such memorial to be verified in accordance with the provisions of section 7 of the Land Registration Ordinance.

(Replaced, 1 of 1962, s. 3)

20. It shall not be necessary for the Land Officer to keep an index of names of the several parties to deeds and other instruments, or of the devisors or devisees in the case of wills, or of the plaintiffs or defendants in the case of judgments, orders and lites pendentes.

(Amended, 20 of 1948, s. 4)

21. [Repealed, 72 of 1971, s. 3]

22-41. [Repealed, 62 of 1984, s. 66]

42. The Governor in Council may by regulation provide for the purposes of Part II, and particularly the fees to be paid thereunder, and the recovery of Crown rent by distraint or other proceedings. The said regulations shall be published in both the English and Chinese languages.

43. A copy of or extract from any document in the custody of the Land Officer shall, if certified by him to be correct, be admissible in evidence in all courts to the same extent as the original document would be admissible.

(Amended, 51 of 1911, and 13 of 1912, Schedule)

44. Nothing in this Part shall be deemed to affect the interests of the Crown, or to confer a larger right in relation to any land than is granted in the Crown lease, grant or licence whereunder the said land is held; and no liability shall attach to the Land Officer, or to any Assistant Land Officer, or to the Government, or to the Crown, in respect of any act done or entry made by such Land Officer or Assistant Land Officer in the course of his duty.

(Amended, 50 of 1911, and 21 of 1912, s. 2)

SCHEDULE

[Repealed, 62 of 1984, s. 66]