張偉良 v. Sien Youi Chong William, The Executor of the Estate of Lok Pui Kee Betty, Deceased

HCA 1486/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1486 OF 2007

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JUDGMENT

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1.This is a hopeless action born out of greed, it is alleged by the defendant’s counsel, Mr Patrick Chong. He may well be right. It certainly illustrates some wretched aspects of human behaviour.

2.The plaintiff, a computer science teacher at a university in Hong Kong, and himself a graduate of the University of West Ontario in Canada, was the owner of an indigenous house which he had built in 1999/2000, with the aid of a mortgage, and of course benefiting from the government’s discounted land value.

3.Reasonably enough there was, as usual, a covenant against alienation by the owner of such property but that restriction can be lifted upon payment of a premium by the owner/vendor to the government.

4.In August 2004, the plaintiff, having financial problems, decided he wanted to sell his property and instructed an estate agency known as BMC Property Agency run and/or owned by a Mrs Chan.  In a section of his evidence he denied that the Agency was acting on his instructions and/or his behalf but was acting essentially on behalf of the purchaser in negotiations.  This was not credible but may have been put forward because he anticipated that other aspects of the Agreement for Sale raised problems for him on which his evidence was, to say the least, dubious.  He affected ignorance in some respects, blamed Mrs Chan in others, and on one particular matter, namely the power of attorney, he put forward an entirely illogical explanation.

5.The purchaser who came forward with a firm interest in buying the plaintiff’s property was the late Mrs Betty Lok who was then aged approximately 53 years.  Sadly she died in January 2015 before this case came on for trial.  Her husband was substituted as the defendant in this action.

6.The parties reached an agreement reflected in the Sale and Purchase Agreement whereby the purchaser would pay $6.3 million for the house.  It is dated 29 December 2004.  Although it expresses the purchase price to be $6.3 million, the plaintiff contends that in reality it was $7.3 million on the strength of an oral agreement by Madam Lok to pay him an extra $1 million to assist him to pay off the mortgage and to redecorate the premises.

7.I shall consider this later.  For the time being it is necessary only for me to indicate that I do not believe him.  I am satisfied that he had deviously tried to turn a loan or advance of that additional $1 million into an oral agreement to pay, in effect, a premium.

The Sale and Purchase Agreement

8.The formal Sale and Purchase Agreement was signed by the parties on 29 December 2004.  It provided for a purchase price of $6.3 million.

9.The price of $6.3 million was to include a sum of $3.5 million for the premium for assignment to be paid to the government for its consent to lift the covenant and permit assignment by the plaintiff.  This means that the net purchase price for the property was $2.8 million.

10.If the premium for the assignment was assessed by the government to be in excess of $3.5 million, it was agreed that Madam Betty Lok would pay that excess.

11.The instalments for payment under the Agreement were as follows:

(1) The first instalment of $250,000 described as “an initial deposit” was paid on the signing of the Agreement.

(2) The second instalment of $1.35 million was to be paid on or before 17 January 2005 after the plaintiff had provided a copy of his letter to his tenants (he had two occupying the ground floor and the first and second floors respectively).  The plaintiff was also to discharge his mortgage debt (no doubt with the money from the second instalment) arrange for the removal of the mortgage charge from the Lands Registry, and, by his solicitors, apply to the District Lands Office for the assessment of premium to be paid to the government.

(3) The third instalment of $700,000 was to be paid on or before 1 May 2005, when the vendor (plaintiff) gave vacant possession and the keys to the property.  There was also a provision concerning the collection of rental from the existing tenants with which I do not need to be concerned.  This is in any event inconsistent with his evidence.
He put up some convoluted story that he had to pay his two tenants compensation of $50,000 each for in effect asking them to vacate their tenancies two months early to enable the Sale and Purchase transaction to proceed.  An examination of these tenancies and his own fluctuating evidence and explanation showed that he could not be trusted to provide a coherent, logical and truthful explanation of this side‑issue and I do not propose to examine it further.

(4) The final instalment ($4 million) was to be paid by the purchaser within 28 days of the vendor (plaintiff) notifying the purchaser (Madam Betty Lok) of the decision by the Government in respect of the land premium for assignment.  Within that 28‑day period completion would therefore take place and the property transferred to Madam Betty Lok.

12.This is an important clause as to timing because although the government sent notification of the assessment of the premium to the plaintiff on 24 October 2005, he did not notify Madam Lok until 4 November 2005.  Accordingly completion would not be on 21 November — as the plaintiff tried to insist on later — but on or before 2 December 2005.  However the parties would not be in a position to complete on or about that date quite simply because, apart from the matter of the premium assessment at that stage, the defendant’s solicitors had not received the answers to their requisitions, the plaintiff and/or his solicitors having been responsible for serious delay.

13.Other conditions attached to the Agreement were:

(1) The plaintiff was to clear the mortgage before completion.  This was already envisaged as part of the provision for payment of the second instalment.

(2) The purchaser was to pay $70,000 as a service charge to the estate agent.  None of the other conditions are material to this dispute.

The “Decoration” Agreement

14.This bears the same date as the Sale and Purchase Agreement.  It is on notepaper of BMC Decoration Ltd which is obviously a company linked with the plaintiff’s property agency instructed by him.  It is signed byMadamBettyLokasthepurchaserofthepropertyandbytheplaintiff’sagent.

15.It recites that the plaintiff has borrowed the total sum of $1.38 million from the purchaser, Madam Lok, as renovation fees.  Of that sum $380,000 is to be advanced at the time of the signing of the Sale and Purchase Agreement, at which time the plaintiff is also to sign, inter alia, a power of attorney (of which more later) and the “relevant construction decoration loan” agreement.

16.The balance of that loan or advance i.e. the $1 million, was to be advanced at the same time as the second instalment ($1.35 million) was paid — thereby totaling $2.35 million — the whole sum to be paid to the financialcompany to discharge the plaintiff’s mortgage debt secured upon the property.

17.There are copy cheques to evidence these sums of money advanced by Madam Lok — one for $380,000 payable to BMC, the plaintiff’sagent (and the same sum passed on to the plaintiff by BMC by cheque) and a series of cheques evidencing the payment of the second instalment plus the advance of $1 million under the “Decoration Agreement”.  They are all dated 17 January 2005.

18.One is for the $1 million provided for in the “Decoration Agreement”.  It is made payable to Freeway Finance (the plaintiff’s mortgagee) — Madam Betty Lok had altered the payee from BMC Decoration. A second is for $1,345,394 also payable to Freeway Finance.  These total the sum of $2,345,384 which happens to be the sum due to the finance house to discharge the mortgage debt as set out in a letter from thefinance house’s solicitors dated 12 January 2005 to the plaintiff’s solicitors.

19.The mortgage was therefore discharged by way of these cheques from the purchaser.

20.There is a third cheque from the purchaser in the sum of $4,606 made payable to the plaintiff’s solicitors.  This makes up the difference between the $2.35 million provided for in the “Decoration Agreement” and the amount required to discharge the mortgage.

21.It is important also to note the letter of 12 January 2005 from Madam Lok’s solicitors to the plaintiff’s solicitors referring to the $2.35 million as being “deposit and part payment of the purchase price”, part of which was to be utilized to discharge whatever was due under the mortgage.  In no document at the time, or later from the plaintiff’s solicitors, is there any suggestion that the purchase price was a higher sum than that provided for in the Sale and Purchase Agreement.  Yet the plaintiff in his evidence alleged that the $1 million was an extra payment from Madam Lok and not a further interim advance and that it was Ms Chan of the property agency who said it was not necessary to alter the purchase price in the Sale and Purchase Agreement but could be (or should be) left as an oral agreement varying the purchase price.

22.The plaintiff’s evidence flies in the face of the documents and commonsense as well as Madam Lok’s evidence. Throughout almost a year, the plaintiff was begging for further advances on the purchase price to be made by Madam Lok in order to help him out of his financial difficulties.  Nowhere does he raise this extra $1 million as part of an increased price Madam Lok agreed to pay and he has not called Mrs Chan to give evidence nor obtained even a statement from her. Quite simply I do not believe him on this important issue.  It is a fabrication on his part.

23.It was in fact the defendant’s solicitors who contacted the Land Registry in Sai Kung with the document evidencing the discharge of the mortgage in order to have the legal charge removed, sending a fee of $450.  It was obvious who was taking the initiative in removing obstacles to facilitating the smooth timely transfer of the property.

The plaintiffs contact with the Lands Office

24.Not until 22 February 2005 did the plaintiff’s solicitors contact the Lands Office on his behalf asking it to assess the “premium on alienation”.  It also raised the matter of the window in the property asking for a certified copy of the approval of the Lands Office.

25.This letter was sent five weeks after the mortgage had been discharged and the purchaser had paid the second instalment. It was the beginning of a catalogue of delays by or on behalf of the plaintiff.  In the Agreement the plaintiff had undertaken to “apply immediately” for the premium assessment when those payments were made.  He had failed to do so.

26.The Lands Office replied on 11 March 2005 pointing out that a legal charge ie the mortgage to Freeway Finance, had been incurred by the plaintiff without the approval of the Land’s Office and that therefore he was in breach of the New Grant.  The application for removal of the non‑assignment clause (and therefore the assessment of the premium payable) could not proceed until he made application for the approval of the legal charge.  The application for approval in respect of the side window was being processed.

27.In the meantime, on 1 March 2005 the purchaser had paid the third instalment of $700,000 and was allowed to take possession of the premises.

28.Three months later the Lands Office wrote to the plaintiff (20 June 2005).  It was prepared to give retrospective approval of the Legal Charge providing a penalty fee and other charges were paid by him.  They totaled $14,150 and had to be paid within 28 days.

29.The plaintiff then approached his Estate Agent to see if the purchaser, Madam Lok, was prepared to advance the money from the balance of the purchase price.  He wrote:

“I hope you can communicate with the owner (i.e. Madam Lok now in possession of the property) to prepay these payments from my balance, so as to [enable me to] complete premium payment and property transaction as soon as possible.”

The payment request included other debts he had, totaling $58,000.  Within ten days Madam Lok’s solicitors had forwarded to the plaintiff’s solicitors a cheque for the $14,150 (as part payment of the purchase price) to be used specifically for settlement of the Lands Office charges.

30.In August 2005 the Lands Office requested payment of a total of $5,165.52 being the administrative fee for the removal of the non‑assignment clause together with the government rates due for the period 1 April 2004 to 25 February 2005 — they were arrears which the plaintiff had failed to pay.  Again he went “cap in hand” to the purchaser who duly promised that sum also would be advanced to be deducted from the balance of the purchase price.

31.What was now awaited was the decision by the Lands Office as to the premium to be paid for alienation.

32.On 24 October 2005 the Lands Office informed the plaintiff through his solicitors that the premium payable for consent to assign was $6,810,600 plus a registration fee of $650.  These were to be paid on or before 21 November 2005 failing which the application would be deemed as withdrawn.

33.Notification to the defendant’s solicitors was given by the plaintiff’s solicitors on 4 November, a delay of at least ten days, thereby immediately reducing the timescale for the purchaser.  Madam Lok immediately wrote to the Lands Office questioning why the premium was so high.  The Lands Office replied on 14 November 2005 promising to look into the matter.  On 15 November she wrote again, entering a formal protest or appeal against the assessment, adding that she had instructed a firm of Chartered Surveyors to make a market valuation and give an opinion as to the premium to be paid.  She enclosed a letter from the Chartered Surveyors concerned.  Within two days they had provided their report.  The Lands Office indicated that it would follow the matter up.

34.On 17 November the Lands Office replied saying that if an appeal against the premium assessed was to be proven, then a valuation report with market evidence in support was to be submitted within one month of that date i.e. by, on or about 17 December.  This had of course been done.  That letter was addressed to the plaintiff (since he was the person who had applied for assessment) but sent to Madam Lok’s address.

35.The Lands Office sent a letter of 9 December to Madam Lok confirming that the appeal was being processed and that she would be informed of the result in due course.

36.On 22 December the plaintiff sent his personal notification to the Lands Office withdrawing the appeal against the premium assessment.  It was for him a disastrous action, and irrational interference made without recourse to his own solicitors.  He was utterly misguided, to put it kindly, and petulant, and bent on forcing the formal completion in circumstances in which he had no right to do so.

The Power of Attorney

37.On 1 October 2005 the plaintiff executed a power of attorney for Madam Lok.  It was a sensible act so that she could handle the premium assessment matter.  The important provision is number 21 enabling her to “raise objections to and negotiate” and, in effect, appeal against the premium assessment.

38.No doubt she relied, entirely properly, upon this power when raising objection to the assessment of the premium which had been notified to her, somewhat belatedly, on 4 November.

39.The plaintiff affected to have no recollection of this document, or really understand it, saying that it was one of a number of documents put before him to sign by Mrs Chan in her office on 29 December 2004.  The Power of Attorney was dated 1 October of the following year.  Again I find his explanation disingenuous.  He had signed a similar power of attorney in May 1990 (together with a certain Cheung Wai Chung) giving such power to a third person.  He well knew what a power of attorney was and his facile attempt to suggest he knew nothing about the power given to Madam Lok is another example of his inability to be truthful.

40.He also well knew that Madam Lok’s application to review the premium assessment was in accordance with the power given to her when he wrote to the Lands Office, cancelling the appeal against the assessment.  His irresponsible attitude was indicated by his expressed concern that a completion date of 21 November had passed without completion taking place (when there was no agreed completion date and could not be one) andhe was simply anxious to get his hands on the balance of the purchase price, alternatively force Madam Lok out of possession and forfeit all the sums she had paid.

The Requisitions on title and Completion

41.The solicitors for Madam Lok had been awaiting answers to their requisitions on title for some months.  One of them concerned the sidewindows of the property for which the plaintiff had not obtained permission from the Lands Office before or after construction of the house.  The plaintiff unjustifiably complained that the requisitions were raised at the last minute.  They were not.

42.His solicitors wrote to the Lands Office on 4 November, some eight months after the last letter on the topic from the Lands Office.  They had obviously overlooked this matter.

43.Within a week those solicitors were writing to Madam Lok’s solicitors (11 November 2005) saying:

“... completion ... shall be 28 days from the date your client is notified of the amount of the premium .... Please be informed that the premium should be paid on or before 21^st November 2005 which is the date the parties scheduled for completion.”

44.This was of course impractical and mistaken.  The plaintiff’s solicitors still had not answered the requisitions.  The purchaser was not informed of the premium assessment until 4 November and the plaintiff’s solicitors well knew this.  The purchaser was exercising her right to appeal the assessment under the power of attorney (whether or not the plaintiff’s solicitors knew of this power).  The 28‑day period did not in any event expire until 3 December so 21 November could not be the completion date.

45.Madam Lok’s solicitors wrote back on 14 November — threedays later — informing them that the Lands Office had said that the premiumwould be assessed and in very reasonable terms indicated that the completion date would have to be postponed pending the re‑assessment.

46.Despite that the plaintiff instructed his solicitors to insist on completion on or before 21 November.  I do not need to reiterate his solicitors’ misapprehension.

47.In the second half of November the solicitors for Madam Lok were asking for certain original documents.  Some of these had been requested as long as 18 February 2005.  The Statutory Declaration in respect of the approval of the side windows was not supplied by the plaintiff’s solicitors until 23 / 24 December 2005.  Some of the others were sent by the plaintiff’s solicitors on 19 November.

48.Although the plaintiff’s solicitors were raising difficulties and trying unreasonably to insist upon completion on or before 21 November, the purchaser Madam Lok was doing her best to make provision for the smooth completion subject to the revision if any of the premium assessment.

49.On a ‘without prejudice’ basis she was prepared to pay the balance of the purchase price provided that:

(1) It was held in a stakeholders’ account in the name of the plaintiff’s solicitors to be released only when actual completion had taken place.

(2) The plaintiff executed the formal Agreement for Sale and Purchase and Assignment in escrow pending actual completion date.

(3) Good title is proved before completion.

(4) Sale and purchase is completed immediately after payment of premium.

50.Her solicitors forwarded the draft assignment for approval subject to satisfactory answers to requisitions.

51.On 21 November they sent a cheque for $480,684.48 to be held as stakeholder on the conditions set out by the purchaser.  The requisitions had still not, by then, been answered to their satisfaction.

52.Surprisingly the plaintiff’s solicitors sent the cheque back the next day on the basis that completion could not be proceeded with on 21 November.  Quite apart from their miscalculation concerning 28 days from 4 November, they had also ignored the power of attorney and its effect.  In the same letter they complied, belatedly, concerning one of the requisitions. By now all sense of reason seemed to have deserted both the plaintiff and his solicitors.  There was still at least one remaining requisition to be dealt with and that did not happen until 23 December 2005.

53.Unknown to his solicitors, the plaintiff had, the day before, sent a letter to the Lands Office cancelling the appeal against the premium assessment.  That was fatal to the chances of Madam Betty Lok having the assessment revised downwards.

54.Apart from not informing his solicitors he gave Madam Lok no notice or hint of what he was about to do.

55.Then matters seemed to ‘hang fire’ until he sent the extraordinary letter dated 3 March 2006.  The first point of note is the confirmation that the purchase price is $6.3 million.  There is no mention of an extra $1 million or $7.3 million as the effective price.

56.There is repetition of the completion date being 28 days after notification of the notice of the premium assessment.  I do not need to repeathis and his solicitors’ mistake in fixing 21 November as the completion date.

57.He then alleges that the purchaser, Madam Lok, without consent asked for reassessment of the premium to be made.  He ignores, for convenience sake, that by the power of attorney, he had given her the power to do so, so it was with his consent.

58.He referred to last minute requisitions.  ‌They were not last minute.  His solicitors had been dilatory in obtaining information to answer them, and the purchaser’s solicitors, quite properly, insisted upon them, and upon proper production of the essential documents to complete the title deeds.  The last answers were delivered approximately one month after the allegedcompletion date (21 November 2005) upon which the plaintiff tried to insist.

59.Far from the purchaser adopting an uncooperative attitude, it was the vendor, the plaintiff, who adopted such attitude and acted in an obstructive and destructive manner.  He prevented the purchaser from obtaining a revision of the premium assessment, which would have meant that under the agreement, she would have had to pay the government a lower sum than first assessed.  He was utterly opposed to any possibility, under the agreement, despite the power of attorney given by him, of the purchaser being able to reduce its liabilities to the government, which would not have prejudiced him to any extent.  His liability was already fixed, by agreement, at $3.5 million.

Conclusions

60.The plaintiff was in breach of the Agreement for Sale and the Power of Attorney.

61.He tried to tie the purchaser to the completion provision when he was in no position to meet the obligations which completion on 21 November required.

62.He tried, unilaterally, to nullify the most important provision of the Power of Attorney with no justification whatsoever. And he did this deviously and, I think, maliciously.

63.He purported to give notice to the purchaser to vacate the premises when she was not in breach of any provision or requirement and yet he was in breach of significant agreements.  Furthermore he had provided in the Agreement that she could take possession after payment of the third instalment.

64.Instead she had helped him through every financial problem born out of his impecuniosity (which may simply have been caused by bad judgment on his part) by advancing sums of money to enable him to meet his obligations so as to allow the transaction to proceed.

65.He repudiated the agreement for sale and purchase without just cause.  He is in breach of the express and implied terms of the Agreement.

66.The completion date had not yet arrived.  He interfered with her right under the power of attorney.  His solicitors had not yet provided the answers to the requisitions so as to establish good title free from any breach of covenants or terms imposed by the government.  He had prejudiced Madam Lok to a significant extent by terminating the appeal against the original assessment.

Consequences

67.The defendant is entitled to an order for specific performance of the sale and purchase agreement.  I find that she had at all times been willing and able to perform her obligations under the Agreement.  In fact she had facilitated the path of the plaintiff to a proper outcome throughout the period.

68.The Power of Attorney is to be seen as in effect a collateral agreement to ensure that the process of establishing the premium assessment was determined in the interests of both parties.

69.The orders I make are as follows:

(1) The plaintiff is to transfer the property to the defendant forthwith.

(2) The plaintiff do forthwith repay to the defendant the interim payments totalling $3,685,165.52 within 14 days.

(3) The plaintiff is also liable to pay the sum of $3.5 million to the government in part satisfaction of the premium assessed at $6,810,650.  The defendant is liable to pay the difference of $3,310,650 to the government.

(4) In the event of the government in 2016 assessing the premium to be in excess of $6,810,650, the plaintiff is to pay the difference between that 2016 premium assessment and the sum of $6,810,650 (the premium assessment for 2005).

70.Once those payments have been made or identified the defendant is to pay the sum of $6.3 million subject to deductions under §4 herein.

71.If it were possible to envisage what would have been the reassessed premium in 2005/06 following the appeal against the assessment of October 2005, I would have ordered that the plaintiff pay the difference between the revised assessment at that time, and the assessment reached in 2016.  Regrettably it is not possible to calculate this as I am informed that the government is either unwilling or unable to contemplate what would have been its approach in 2005/06.

72.The defendant will also have an order for its costs to be paid by the plaintiff to include all the costs of advancing an appeal against the 2005 assessment, to include the costs of the Chartered Surveyors’ report.  This is what is colloquially known as a “Football Pools” order — i.e. effective if the plaintiff comes into a financial windfall.  His current financial status is believed to be precarious.

73.There will be liberty to apply in the event that any of my orders raises a practical problem, particularly in relation to the mathematics of the various orders for payments.  They may need some fine‑tuning.

Procedural point

74.Counsel for both parties delivered skeleton opening submissions.  After I had read both it was apparent that those on behalf of the plaintiff dealt only with the issues that supported his case and completely ignored the others based upon important documents which formed part of the defendant’s case. Counsel for the defendant, Mr Patrick Chong, had carefully set out all the arguments with reference to the relevant documents, and this action was going to be determined almost entirely on the documents, so, in order to assist me, I invited him to open the case, followed by Mr Edward Fan for the plaintiff, who was then enabled to put any contrary argument and refer to any material document not already mentioned.

75.As for the chronology and sequence of documents were concerned, the plaintiff’s bundle was disordered but with the defendant’s counsel’s assistance the degree of confusion was largely overcome.  Some documents which ought to have been disclosed by the plaintiff remained unseen but it was possible to determine their relevant contents from others in the bundle.

76.I understand that the plaintiff is legally aided.  How he came to be funded by public money in this utterly unmeritorious civil action I do not know.  On matters which he does not dispute, and aspects of his, to me, inexplicable behaviour, it was patently obvious that he could not succeed.  These are:

(1) In the power of attorney, he had enabled the late Mrs Betty Lok to take steps to challenge the government’s assessment of premium on his behalf (as vendor).

(2) He had without notice to her and, on the face of it, without informing his solicitors, written to the government department, cancelling the appeal she had lodged against the assessment.  In fact her appeal was likely to be allowed in my judgment, so that there would have been a significant reduction in the amount of premium she would have to pay (viz the excess over $3.5 million).  Had he informed his solicitors of what he was going to do, their advice would have been “Don’t do it!” — the advice of any reasonably experienced and fair-minded professional lawyer.

(3) He insisted that the purchaser was in default of completion on 21 November when it was obvious that that was not the case, by virtue of all the outstanding matters not the least being the failure of his solicitors to answer the requisitions properly and his delay in informing her of the then assessed premium.  There had been serious delay on their part in their steps to deal with these matters.

(4) Overall the plaintiff had been both obstructive and destructive.

77.It raises the question of the judgment of whoever it was in the Legal Aid Department who, as a consequence, has wasted a significant amount of public money, unless he was relying, wholly unwisely, on an advice from counsel which supported the plaintiff’s insupportable case.

78.There is now the question as to what if any powers I have to make an order for the plaintiff to pay all or any of the defendant’s costs, or for the defendant’s costs to be paid out of the Legal Aid Fund or otherwise out of public funds.

79.This case was listed to last for five days. Mercifully it has taken less than two days but the estimate for the length of trial was largely in the hands of the plaintiff or his advisers.  Accordingly the defendant’s advisers have to gear themselves in terms of costs for a trial to be run according to the plaintiff’s estimate and planning.  So, to some extent fees incurred by the defendant’s solicitors are calculated on the basis of the plaintiff’s advisers’ calculations.  They will have been inflated by the estimate of, and provision by the court of five days.  In my judgment this trial was never going to last five days — three at the most.

80.I will welcome Counsel’s assistance, in a short written submission, as to how, if at all, I can order the plaintiff to pay the defendant’s costs.  The plaintiff himself gave palpably untrue evidence on every material aspect.  He was also obstinate and illogical.

81.I am also concerned that this action, commenced in July 2007, came on for trial in October 2016.  Madam Betty Lok died in early 2015, ten years after the original Sale and Purchase Agreement.  That is an unconscionable delay.

Mr Edward Fan, instructed by C P Cheung & Co, for the Plaintiff

Mr Patrick Chong and Mr Felix Ng, instructed by Pang, Wan & Choi, for the Defendant