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

Cap. II: Policy

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

Cap. IV: Chinese custom

concerning land

Cap. V: Summary of

recommendations

Annex 1

Proposed changes to the

New Territories Ordinance

Annex 2

What constitutes "Chinese

Custom and Customary Right"

in S. 13 of the Ordinance?

Annex 3

Customary Land Trusts in

the New Territories

Annex 4

Customary succession to land in the New Territories

Annex 5

Bibliography

The New Territories Ordinance (Cap. 97)

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 :-

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

Registrar General Department (Land Office)

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

(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.

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

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.

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

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.

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.

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.

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

(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.

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.

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.

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).

(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

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.

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.

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-

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