2023/01/13 Reform of Law of Tso/Tong: Taking a look at what the Members argue for
In recent years, the Government frequently mentioned that it would like to take measures to “unlock” the lands held by Tso/Tong (祖堂). At the moment the Government has been reviewing the management of Tso/Tong, and amending the New Territories Ordinance (Cap. 97) (“the Ordinance”) may be an option. The Ordinance has a long history starting from 1905, in which section 15 is the main legislation on the Tso Tong affairs. Some suggest that section 15, which remains rigid without any improvement since the last century, has already become obsolete. In fact, the recent legal precedents on Tso Tong demonstrated the flaw of the current Ordinance.
In the case of Man Man Ling v Secretary for Home Affairs & Anor  HKCFI 3253, the plaintiff claimed to be member of a religious Tong under the Ordinance since 1996. The then manager had reported her membership to the Government as well, but since that manager’s demise, the surviving manager of the Tong, for some reasons, failed to report the plaintiff’s name in the list of members of the Tong. Upon the death of the surviving manager in 2019, the tenants of the premises held by the Tong were asked to pay rent to the estate administrator of that surviving manager.
The plaintiff suggested that such rental income shall form part of the Tong’s assets instead of the estate of the late manager. She accordingly applied to the Court for a declaration that she was a member of the Tong and herself being nominated as the new manager. The plaintiff also lodged her claim against the then Secretary for Home Affairs for such relief, but was told the Government had no investigation power to verify or rectify the memberships of the Tong. The plaintiff also applied to join another potential member of the Tong in the action, but the Court rejected.
In fact, most of the cases concerning Tso/Tong in recent years involve dispute as to memberships and legitimacy of managers. For instance, the original members of the Tso/Tong may by accident no longer be in the list of members. They may resort to the Court since they were deprived of their entitlements in the Tso/Tong. Some Tso/Tongs may also lack a feasible mechanism of appointment and removal of managers. Aggrieved members may turn to the Court when they fail to obtain the authority to act for the Tso/Tong.
From the above examples, it is transpired that the cause of parties going to the Court to resolve Tso/Tong disputes may be attributed to the shortage of clear mechanism under the current law on appointment and removal of managers. At the moment, the lists of members are reported by the Tso/Tongs themselves and the Government is only responsible for keeping record. The going in and out of members, appointment and removal of managers are mostly governed by the Tso/Tong’s internal rules without an universal mechanism. So long as disputes arise among the members and the managers, the parties may only ask the Court to resolve the same. Meanwhile, the Court may have to closely examine the history of the Tso/Tong, its previous management and may even need expert advice on Chinese customary law before it hands down its decision. In such circumstances, the members and managers of Tso/Tong should carefully consider the legal implications when they deal with Tso/Tong’s affairs.
In the long run, the law may be reformed to make it clearer on how managers of Tso/Tong shall be appointed or removed, such as the suggested mechanism, what the Government shall take into account, and what to do when the stakeholders have any disputes on the issue. The law can be reformed to better cater for the practical operations of Tso/Tongs.