Court test for 'living' succession in villages
New Territories villagers often pass land to their heirs before their death, regarding it as a form of succession similar to transferring it after death, appeal judges heard yesterday.
The argument was put forward in a case in which a Tai Po villager is appealing against being ordered to pay government land rent on a plot gifted to him by his father while his father was still alive.
Lai Hei-on, an indigenous resident of Po Sum Pai Village, is trying to overturn a ruling by the Lands Tribunal in April 2007 requiring him to pay rent under the Government Rent (Assessment and Collection) Ordinance.
Mr Justice Robert Tang Ching, Mr Justice Peter Cheung Chak-yau and Madam Justice Maria Yuen Ka-ning were told that the central issue of the case was whether Lai was the legal successor under this law, in which case he would be exempt from government rent.
Under the ordinance, a legal successor can acquire land upon the death of an indigenous villager in accordance to the customs operating in the New Territories.
Lai was given the piece of land by his father Lai Tin-sung, who has since died, in about 1984 and a deed of transfer of ownership was recorded in 1992.
In 2007, the tribunal held that Lai had received the land not by legal succession but during the lifetime of his father and thus he was not exempted from rent.
It ordered Lai to pay rent from June 1997 onwards which he estimated to be less than HK$5,000 in total.
Yesterday he argued that the way he acquired the land was a form of succession, claiming that it was a common practice in the village that fathers passed on their properties to descendants before death in order to avoid probate disputes.
Heung Yee Kuk executive committee member Wong Wang-fat told the court that it was the custom of villagers in the New Territories that a transfer of title as a gift along the male line was a form of 'succession'.
He said the division of property before death was aimed at upholding family harmony.
He also said the Kuk did not take sides in the case but he was there to assist the court by providing relevant information on village customs.
But Cheung, one of the three appeal judges, said the court had not been provided with any evidence to confirm there was such a tradition.
Outside court, Wong said the court's ruling in Lai's case could have an impact on villagers in general, although he was unable to say exactly how many would be affected.
The court yesterday reserved its judgment.