Compensation for resumption – whether subject to Chinese customary law – New Territories Ordinance (Cap. 97) ss. 2, 13(1)
P was the son of F, the deceased, whose estate included two lots of New Territories land resumed by the Government for compensation (the “Compensation”). As P succeeded to F’s estate when he was still under age, his mother, D, was appointed as his trustee. In proceedings between P and D concerning the estate, D claimed that the Compensation was subject to Chinese law and custom which required P to maintain her for life and provide dowries for D and F’s two unmarried daughters. The Deputy Judge held that there was no jurisdiction to apply Chinese custom and customary rights to the Compensation, which appeared to be limited solely to New Territories land and not to personalty; and that P was entitled to the Compensation. D appealed.
Held, dismissing the appeal, that in order to ground jurisdiction, D had to show that the case came within s. 13 of the New Territories Ordinance (Cap.97) (the “NTO”) which empowered the court, in proceedings relating to New Territories land, to recognise and enforce any Chinese custom or customary right affecting such land. Unlike Tang Che Tai v Tang On Kwai, relied upon by D, the two resumed lots of land were not imprinted with the special feature of the institution of a t’ong. In the absence of this special feature, D had to show that somehow s. 13 still applied to the Compensation, but could not do so. As the definition of land in s. 2 of the NTO did not refer to compensation arising from resumption or proceeds of sale, D could not overcome the statutory definition of land and so invoke Chinese law and custom.