Wong Koon Chung v. Tsuen Wan Tung Po Tor Monastery Ltd

DCMP 3578/2023

[2024] HKDC 1284

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3578 OF 2023

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BETWEEN

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JUDGMENT

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Introduction

1.For determination is a Vendor-Purchaser Summons taken out by the plaintiff as the purchaser of Lot No 17 in Demarcation District 451, Tsuen Wan, New Territories (“the Lot”) from the defendant.

The requisition and answers

2.On 30 August 2022, Messrs Christine FL Ip & Young (“CIY”), raised requisition on title (among others) on behalf of the plaintiff as follows:

“1. Upon search at the Companies Registry, we note that under object (a) of the Memorandum of Association, one of the objects for which your client is established is “To acquire and take over all of any part of the assets and liabilities of the present unincorporated body known as “TSUEN WAN TUNG PO TOR MONASTERY (荃灣東普陀講寺)”.”

However, the name of the beneficiary under the Declaration of Trust Memorial No TW170504 is the members of TUNG PO THOR MONASTERY (東普陀寺).

Please adduce evidence to show that the members of TUNG PO THOR MONASTERY (東普陀寺) are the unincorporated body known as “TSUEN WAN TUNG PO TOR MONASTERY (荃灣東普陀講寺).””

(“the requisition”)

3.On 19 September 2022, Messrs Gilbert Tang & Co (“GT”), answered the requisition on behalf of the defendant as follows:

“Since title to the Property commences with Assignment Memorial No TW383912 and re-registered by Memorial No TW1007019, as our client need only prove 15 years’ title pursuant to Section 13A of the Conveyancing and Property Ordinance, Cap 219, we will not answer any query beyond the statutory period.”

4.On 20 September 2022, GT further answered the requisition as follows:

“1. Please refer to clause 3^rd(a) of the Memorandum & Articles of Association of Tsuen Wan Tung Po Tor Monastery Limited.

…

We trust that all your requisitions have been satisfactorily answered.”

5.On 27 September 2022, GT further answered the requisition as follows:

“Further to our letter dated 20^th September 2022, we would like to reply you as follows (using the same numbering):-

1. In respect of the two names, Tung Po Thor Monastery (東普陀寺) and Tsuen Wan Tung Po Tor Monastery (荃灣東普陀講寺), we are instructed that they refer to the same association or body.

We are preparing a Statutory Declaration to that effect and attach the draft Statutory Declaration for your comments.

As the association has no legal entity of its own, there are no legal consequence to flow from whatever name the association is called since both names refer to the same body.

We trust that all your requisitions have been satisfactorily answered.”

6.On 28 September 2022, GT further sought to refer to the order of K Yeung J in HCMP 1583/2018 dated 4 September 2019.

7.CIY was not satisfied with the answers. On 30 September 2022, CIY wrote to GT:

“(1) We regret that the High Court case of HCMP 1583/2018 has not addressed to our concerns; rather it has endorsed our concerns rightly. In paragraph 14 of the Reasons for Decision under Sik Tak Chi’s evidence, the latter clearly said in her affirmation that (h) “Members of Tung Po Tor Temple (東普陀寺) of Tsuen Wan New Territories”, “Tsuen Wan Tung Po Tor Monastery (荃灣東普陀講寺)” and “members of Tung Po Tor Temple (東普陀寺) of Tsuen Wan, New Territories, Hong Kong” refer to the same unincorporated body and members;”. Members of Tung Po Thor Monastery was not mentioned in her affirmation at all. Thus, we cannot assume that Members of Tung Po Thor Monastery of Lo Wai, Tsuen Wan, New Territories, Hong Kong also refers to the same unincorporated body and members, namely, Tsuen Wan Tung Po Tor Monastery (荃灣東普陀講寺).

Moreover, the 2^nd defendant in the High Court case is “All Persons who were Members of Tsuen Wan Tung Po Tor Monastery (荃灣東普陀講寺), also known as Tung Po Tor Temple (東普陀寺) as at 28 March 1967, as at 27 February 1986 or as at 24 May 2019”. In our present case, however, the relevant dates for the Members of Tung Po Thor Monastery are 14 September 1978 (Succession to Property Memorial No TW164580), 29 December 1978 (Declaration of Trust Memorial No TW170504) and 30 May 1968 (Assignment Memorial No TW383912). In the absence of evidence, we cannot ascertain if the lists of members on those three material dates were the same lists of members of the 2^nd defendant on different dates in HCMP 1583/2018.

For the above reasons, we do not agree that Tung Po Thor Monastery (東普陀寺) and Tsuen Wan Tung Po Tor Monastery (荃灣東普陀講寺) refer to the same unincorporated body. Although the two names have some common words, it does not necessarily mean that they refer to the same unincorporated body. An example is Koon Yam Temples (觀音寺) in Hong Kong. There are many Koon Yam Temples (觀音寺) in exactly these three words in Hong Kong, but obviously each of them is independent from the other. Although unincorporated association or body has no legal entity of its own, its members on the material dates do have legal interests in the subject Lot so there is a risk of claims from them against the subject Lot. The proposed Statutory Declaration does not help to remove the risk. Perhaps your client would consider to apply for an Order of Declaration similar to that under HCMP 1583/2018 regarding the subject Lot.

(2) The draft Statutory Declaration of loss of title deeds is not acceptable as your client has failed to give clear explanation as to why first-hand information on the circumstances surrounding the actual loss was not available. Please refer to para 52 of the Judgment of HCA 136/2007.

The draft Statutory Declaration should also include the Declaration of Trust if it is lost as well.”

8.On 6 October 2022, GT replied as follows:

“(1) We take the view that TUNG PO THOR MONASTERY (東普陀寺) of Lo Wai, Tsuen Wan, New Territories, Hong Kong ceased to exist upon incorporation of Tsuen Wan Tung Po Tor Monastery Limited (荃灣東普陀講寺有限公司) on 21^st day of November 1980. In this regard, we would refer you to clauses (3) and (4) of the recital in the Assignment Memorial No TW383912 and re-registered by Memorial No TW1007019.

As such, any reference made to Tung Po Thor Monastery (東普陀寺) should now be referring to the said Tsuen Wan Tung Po Tor Monastery Limited accordingly.”

Legal principles

9.Mr Matthew Cheung, counsel for the plaintiff, and Mr Vincent Wan, counsel for the defendant, are in agreement with the following legal principles.

10.Au-Yeung J in Asia Rich Incorporation Ltd v Chin Hung [2019] HKCFI 2187 at para 19 adopted the following legal principles:

(1) The duty to show and give good title is on the vendor.

(2) The test as to whether ‘good title’ is given/shown by the vendor boils down to whether there is a real risk that a third party might assert some right over the property.

(3) A ‘good title’ does not mean a ‘perfect title’ free from every possible blemish. A question as to whether ‘good title’ was given must be approached from the standpoint of a willing purchaser and a willing vendor, both possessed of reasonably robust common sense, both intending to see the transaction through to completion in terms of their own bargain.

(4) The Court should be best guided by the commercial reality as to whether there is any real risk of problems in title. It is not to be troubled by the absence of an absolute risk-free assurance, nor unduly hampered by strict legal proof in matters requisitioned. Conveyancing practice must be geared to uphold bargains.

(5) If there would be a real doubt arising about the title of a property, there should be satisfactory conveyancing evidence (such as a statutory declaration) to remove the doubt.

(6) What is required to prove title in a given case must depend on the specific facts and circumstances and one must apply common sense.

See: Mexon Holdings Ltd v Silver Bay International Ltd (2000) 3 HKCFAR 109 at 117D-F (Litton PJ); So Mariko v Tse Chun Chung John [2011] 3 HKC 174; Zhang Xueshuai v Lai Chan Wing [2015] 2 HKLRD 246 at §31 (Cheung CJHC as he then was); and Kingdom Miles Ltd v Ever Crystal Ltd [2019] 1 HKLRD 643 at §§62-63, 66-72 (Lam VP).

11.Where the identity of a party named in title documents is in issue, Au-Yeung J in Asia Rich (supra) adopted the legal principles summarised in Qin Tian v 譚震, DCCJ 3712/2014, 22/7/2016, unreported:

(a) Where a requisition is raised on the identity of a predecessor-in-title or the present owner of the property by reason of an apparent discrepancy in the title documents, the court should first determine whether the discrepancy in fact raises a reasonable doubt on the identity and if so the court should proceed to evaluate whether the answer and materials provided by the vendor amounts to “proper conveyancing evidence”; (§77)

(b) On whether reasonable doubt is raised by reason of discrepancy:

(i) There is no presumption that a discrepancy or mismatch necessarily gives rise to a reasonable doubt on the identity of the individual concerned. Whether it does so or not must depend on the circumstances of the case and the nature of the discrepancy; (§64)

(ii) Generally, there is an expectation that where a Hong Kong identity card was used as a means to identify an individual in a title document, that card number would not change in subsequent title documents. It is premised on the general knowledge that Hong Kong identity card numbers follow the holders for life; (§70)

(c) If the first question as to whether the discrepancy raises a reasonable doubt on the identity of the individual is answered in the affirmative, the burden is then on the vendor to produce “reasonable proof” on the identity. The vendor does so by adducing “proper conveyancing evidence”; (§71)

(d) Such evidence really means evidence strong and compelling enough to remove or dispel the doubt reasonably raised on the identity of the relevant individual; and (§73)

(e) Mere “circumstantial evidence” or “pointers” are not enough, as explained by Godfrey J in Lam Kin I v Tsui Ming Yee, unrep, HCMP 361/1989 (24 February 1989) at pp 3-4:

“I have no doubt that the circumstantial evidence is a pointer to the conclusion that the two signatories are in fact that of the same person. But I am not satisfied that that is enough. A pointer is not evidence. Circumstantial evidence is not sufficient. Proper conveyancing evidence demands more than this. It demands something on the lines of the statutory declaration to which I have referred, or some other evidence which will satisfy this purchaser, and any purchaser from him, that the title is good one. While this circumstantial evidence may be enough to convince me, I cannot, objectively speaking, take the view that it would be unreasonable for this or a subsequent purchaser to suggest that it is simply not enough. I am not entitled to force a doubtful title upon the purchaser.”

12.Sihombing and Wilkinson, Hong Kong Conveyancing Law and Practice, Issue 35, at VI [256] has the following to say on duty to verify:

“It is part and parcel of proving title the due execution of title documents and this involves checking the names, signatures and identity numbers of the present and previous parties for consistency. For example, if your client is now executing as vendor, you should check that his signature and identity number is the same as when he executed as purchaser. If there is a material discrepancy, it is the duty of the vendor to supply adequate conveyancing evidence to resolve any doubt, since such discrepancy, if unresolved, might amount to a defect in title. Problems encountered in this area are becoming more common and can often be easily remedied by an appropriate statutory declaration, but failure to identify the problem in advance may prove costly to the vendor and his solicitor.”

Whether the discrepancy raised a reasonable doubt on the identity of the defendant as owner?

13.The requisition stemmed from the discrepancy in the names of the Monastery, namely,

(a) Tung Po Thor Monastery (東普陀寺) that appeared in the Declaration of Trust dated 29 December 1978 (“the Declaration of Trust”); and

(b) Tsuen Wan Tung Po Tor Monastery (荃灣東普陀講寺) that appeared in clause 3(a) of the Memorandum of Association of the defendant (“the Object Clause”).

14.By the Declaration of Trust, Sik Lui Koon (釋了觀) (“the Trustee”) declared that he held the Lot (together with other lands) upon trust for the members of Tung Po Thor Monastery (東普陀寺) (“the Members”).

15.However, in the Object Clause, one of the objects of the defendant was to acquire and take over all or any part of the assets of Tsuen Wan Tung Po Tor Monastery (荃灣東普陀講寺).

16.Mr Matthew Cheung, counsel for the plaintiff, submitted that the discrepancy also triggered a more fundamental issue in that “Tung Po Thor Monastery (東普陀寺) was a trust entity which held property on trust for members of Tung Po Thor Monastery (東普陀寺). This further cast doubt on whether the beneficiary or members of Tsuen Wan Tung Po Tor Monastery (荃灣東普陀講寺) are in fact the same beneficiaries or members of Tung Po Thor Monastery (東普陀寺), as there would be “a theoretic risk” that the Assignment was problematic because: (1) there is no record showing that in 1986, all members of Tsuen Wan Tung Po Tor Monastery (荃灣東普陀講寺) or Tung Po Thor Monastery (東普陀寺) consented to the incorporation of D and the transfer to D of all assets held on their behalf (or the unincorporated body); and (2) there is no full list of all members of Tsuen Wan Tung Po Tor Monastery (荃灣東普陀講寺) or Tung Po Thor Monastery (東普陀寺), and there is currently no record of the identities of all members back then.”

17.In my view, the answer lies in the recital of the Assignment dated 30 May 1986 (“the Assignment”) by which the Trustee as Assignor assigned the Lot and other lands to the defendant as Assignee.

18.Sections 13(3) and (4) of the Conveyancing and Property Ordinance, Cap 219 provide:

“(3) Subject to subsection (1), where any document produced as proof of title to any land contains a recital of any document dated or made before the date from which a vendor is required to prove title, the purchaser of that land shall assume, unless the contrary is proved, that ---

(a) the recital is correct;

(b) the recital gives all the material contents of the document recited; and

(c) the document recited was duly executed and perfected.

(4) A recital, statement, and description of any fact, matter or party contained in any document of title, mortgage, declaration or power of attorney relating to any land and dated or made not less than 15 years before the contract of sale of that land shall, for the purposes of any question as to proof of title concerning the parties to that contract and unless the contrary is proved, be sufficient evidence of the truth of that recital, statement and description.”

19.Mr Cheung submitted that the presumption under Section 13(4) has been rebutted by the fact that there were various names seemingly referred to the same Monastery or incorporated body and even the contents of the recital of the Assignment were true, it could not help resolving the issue of discrepancy.

20.For reasons that will be appearing, I would, with respect, disagree with Mr Cheung’s submission.

21.For the present purpose, the relevant parts of the recital are recited below:

“(1) By a Succession to Property dated the 14^th day of September 1978 … the Assignor became the Successor of … (“the Property”) …

(2) By a Declaration of Trust dated the 29^th day of December 1978 … the Assignor declared that he held and stood possessed of the Property upon trust for the members of Tung Po Thor Monastery (東普陀寺) of Lo Wai, Tsuen Wan, New Territories, Hong Kong (“the Members”) and he thereby agreed to assign convey or otherwise dispose of the property at the request and cost of the Members to such person or persons at such time or times and in such manner as the Members should direct.

(3) On the 21^st day of November 1980 the Members having decided to incorporate the said Tung Po Thor Monastery under the Companies Ordinance Chapter 32 incorporated the Company known as the Assignee.

(4) Since the 21^st day of November 1980 being the date of incorporation of the Assignee the Assignee has become the beneficiary of the Property.

(5) The Assignee has requested the Assignor to assign the Property to the Assignee which the Assignor has agreed to do in manner hereinafter appearing.”

22.Hence, it is clear that the defendant was incorporated by the decision of the members of Tung Po Thor Monastery (東普陀寺) of Lo Wai, Tusen Wan (“the Members”). After the incorporation of the defendant, the defendant requested and the Trustee did assign the Lot together with other lands to the defendant by the Assignment.

23.Viewed in this light, there can be no doubt that the defendant is the rightful owner of the Lot.

24.The discrepancy is caused by name of the Monastery in the Object Clause in that it was not the same as the one in the Declaration of Trust.

25.It should be noted that the defendant was incorporated by the decision of the Members. Under the Object Clause, one of the objects of the defendant was to acquire and take over all or any part of the assets of Tsuen Wan Tung Po Tor Monastery (荃灣東普陀講寺), which name bears close resemblance to that of the defendant. Having said that, however, the Chinese name of “東普陀寺” (in English, Tung Po Thor (or Tor) Monastery) is common to both names.

26.I think the logical inference is that it was the decision of the Members to re-name the Monastery as Tsuen Wan Tung Po Tor Monastery (荃灣東普陀講寺) in place of its former name of Tung Po Thor Monastery (東普陀寺). Paragraph 3 of the preamble lends support to such inference. That explains why the Trustee did by the Assignment assign the Lot together with other lands under the Declaration of Trust to the defendant. I also note that the Trustee executed the Assignment not only as the Assignor, but also as one of the directors of the Assignee (ie the defendant). He must be aware of the purpose and effect of the Assignment and that it conformed with his intention.

27.Therefore, I am of the view that both Tung Po Thor Monastery (東普陀寺) and Tsuen Wan Tung Po Tor Monastery (荃灣東普陀講寺) are one and the same unincorporated body.

28.For the foregoing reasons, I hold that the discrepancy does not raise any reasonable doubt on the identity of the defendant as the owner of the Lot.

Whether the defendant has provided proper conveyancing evidence on identity?

29.Given my ruling on the 1^st question, there is no need for the defendant to provide any further conveyancing evidence.

30.In any event, the defendant has filed a Statutory Declaration of Lo Wing Keung on 13 March 2024 as conveyancing evidence.

31.Mr Lo became involved in the Monastery in around 1962 and was appointed a director of the defendant in 2018.

32.If conveyancing evidence is required, he would be the appropriate person to provide the same.

33.As a matter of fact, his evidence supports the conclusion that I have come to.

Relief

34.Mr Vincent Wan, counsel for the defendant, asked that in the event I find in favour of the defendant, the following declaration on title be granted. Mr Cheung has no objection to wording of the same:

“All legal and equitable title, estate, rights and interest which Sik Lui[1] Koon (釋了觀) had under the Succession to Property dated 14 September 1978 and registered in the Land Registry by Memorial No TW164580 and as the surviving trustee of the members of Tsuen Wan Tung Po Tor Monastery (荃灣東普陀講寺) also known as Tung Po Thor Monastery (東普陀寺) in Lot No 17 in Demarcation District 451, Tsuen Wan, New Territories were properly vested in Tsuen Wan Tung Po Tor Monastery Limited (荃灣東普陀講寺有限公司) on 30 May 1986 by the assignment dated 30 May 1986 and registered in the Land Registry by Memorial No TW383912 and re-registered by Memorial No TW1007019 between Sik Lui Koon (釋了觀) as assignor and trustee of the members of Tsuen Wan Tung Po Tor Monastery (荃灣東普陀講寺) also known as Tung Po Thor Monastery (東普陀寺) and the defendant as the assignee.”

35.In the light of my ruling, the defendant is entitled to a declaration on title in such terms and I so grant.

Costs

36.The parties agreed that there shall be no order as to costs and I so order.

Mr Matthew Cheung, instructed by Christine F L Ip & Young, for the Plaintiff

Mr Vincent Wan, instructed by Gilbert Tang & Co, for the Defendant