Man King Chuen v Hong LokYuen International SchoolAssociation Ltd
 4 HKLRD 294
Court of First Instance
High Court Action No 299 of 2011
Recorder Yvonne Cheng SC in Chambers
21 August 2018
Civil evidence - expert evidence - Chinese customary law - admissible even if binding judicial precedent on such law - whether previous authorities relied upon constituted binding authority on relevant points
Courts and judicial system - stare decisis - where court simply assumed correctness of proposition of law in previous authority, judgment not binding authority for proposition, even if formed part of ratio decidendi - whether correctness of impugned proposition in previous authority simply assumed
Chinese customary law - expert evidence – admissibility
Ps, the managers of a tso and registered owners of a land lot in the New Territories (the Subject Lot), brought an action seeking to recover possession of the Subject Lot from Ds. D2 counterclaimed it had acquired title to the Subject Lot by adverse possession. In reliance on the first instance judgment of Leung Kuen Fai v Tang Kwong Yu (or U) T'ong  2 HKLRD 705, Ps argued that a tso was treated as a trust with the managers as trustees and the members of the tso as beneficiaries, and any adverse possession could not extinguish the tso 's title, since there were at least three living male descendants whose equitable interests in the Subject Lot were not time-barred under the Limitation Ordinance (Cap.347). D2 applied for leave to adduce expert evidence concerning Chinese customary law and customs to challenge fundamental aspects of Leung Kuen Fai . Ps opposed D2's application, arguing the issues had already been determined by the Court of Appeal in Wong Shing Chau v To Kwok Keung  5 HKC 372 and Tsang Kwong Kuen v Hau Wai Keung Gaius  5 HKLRD 622. At issue was whether the two Court of Appeal judgments were binding on the Court of First Instance such that D2 should not be allowed to seek to adduce contrary expert evidence.
Held, granting the application, that:
- There was no authority which suggested that expert evidence of Chinese customary law was not admissible, or that the court should not exercise its discretion to admit it, only because there was a binding judicial precedent on the points of Chinese customary law concerned. The general practice of the courts in receiving expert evidence on Chinese customary law continued to apply in such cases. The court was not limited to drawing on Chinese customary law in previous authorities. A principle established in one particular case might not have universal application and so expert evidence might be of assistance even where there were relevant authorities (Re Tse Lai Chiu, deceased  1 HKLR 159, Leung Sai Lun v Leung May Ling (1999) 2 HKCFAR 94, Re Lau Wai Chau (2000) 3 HKCFAR 98, Ng Kuk Mui v Yu Bik Fong Rebecca (HCAP 2/1997,  HKEC 490) applied; Yeung Chi Ding v Yeung Tse Chun  HKLR 131, To Kan Chi v Sik Kwok Wah (HCMP 562/1992,  HKEC 1258), Lee Sun Kiu v Ho Kay Fuk (HCA 195/2001,  HKEC 996), Tang Tak Sum v Tang Kai Fong  4 HKLRD 16 (CFI),  1 HKLRD 286 (CA) explained and distinguished). (See paras.23-39.)
- Where a court simply assumed the correctness of a proposition of law, its judgment would not be binding authority for the proposition, even if it formed part of the ratio decidendi (Baker v The Queen  AC 774, Re Hetherington  Ch 1 applied). (See para.44)
- This was the case in Wong Shing Chau and Tsang Kwong Kuen: the Court of Appeal reached its respective decisions on the facts and evidence of each case by applying Leung Kuen Fai without deciding whether it was correctly decided. Accordingly, they did not constitute binding authorities on the impugned propositions of Chinese customary law from Leung Kuen Fai (Wong Shing Chau v To Kwok Keung  5 HKC 372, Tsang Kwong Kuen v Hau Wai Keung Gaius  5 HKLRD 622 explained). (See paras.49-53.)
This was an application by the second defendant, Hong Lok Yuen Estates Ltd, in proceedings concerning a land dispute for leave to adduce expert evidence on Chinese customary law and customs. The facts are set out in the judgment.