So Sui Fan Eva v. Chiu Yiu Tung and Another

HCMP 1307/2024

[2025] HKCFI 777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1307 OF 2024

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BETWEEN

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J U D G M E N T

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Introduction

1.This is an application for an order that the respondents do execute a confirmatory assignment to rectify the errors in the assignment executed by the parties back in 1999.

Background

2.The subject property, Flat No. 7, 2^nd Floor of Block A, Tung Hei Court, 38 Yiu Hing Road (the “Property”), is a residential flat under the Home Ownership Scheme.

3.On 25 August 1999, the Respondents (as vendors)  and the Applicant and Ms. Wen Wong Hing (as purchasers)  entered into a sale and purchase agreement in respect of the Property.

4.Pursuant to the assignment dated 21 September 1999 (the “1999 Assignment”), the Applicant and Ms. Wen Wong Hing became the joint tenants of the Property.

5.Ms. Weng Wong Hing passed away on 10 August 2010.  By operation of law, the Applicant has become the sole owner of the Property.

6.The Applicant intends to sell the Property.

7.She applied for a “Certificate of Available for Sale” from the Hong Kong Housing Authority on 2 January 2024.

8.By a letter dated 5 January 2024, the Hong Kong Housing Authority notified the Applicant that the 1999 Assignment was substantially different from the prescribed form.  This constituted a non-compliance with the terms under section 4(c)  of the Schedule to the Housing Ordinance (Cap.283).

9.In the circumstances, the Applicant’s solicitors attempted to locate the Respondents in order to ask them to execute a confirmatory assignment.  However, due to lapse of time, the Respondents are no longer reachable.

10.Hence, the Applicant commenced the present proceedings.

Deliberation

11.Mr. Billy Poon (for the Applicant)  referred me to Kwong Muk Hing, as one of the executors named in the Will of Luk Heung deceased v Cheng Pui Nin & Anor [2019] HKCFI 1726.

12.The scenario in that case was similar to the present case.

13.In paragraphs 8 to 13 of the decision, DHCJ Leung (as Leung J then was)  stated:-

“8. The applicant accepts that the 2008 assignment indeed deviated from the prescribed form under the Housing Ordinance of a valid assignment…Therefore, a case is made out suggesting actual non-compliance with the prescribed form as well as the Ordinance. Prima facie, the 2008 assignment is a void one.

9. Considering the sale and purchase agreement leading to the 2008 assignment, there should be no doubt that the parties to the conveyance at that time contemplated that the completion of the conveyance would have to accord to the terms as prescribed by the Housing Ordinance.

10. It is expressly provided (section 35(1))  in the Conveyancing and Property Ordinance, Cap 219 and specifically implied to an assignment a covenant, as set out in paragraph 5 of part II of the First Schedule to the Ordinance, that the vendor of the conveyance should do, execute, or do all such lawful acts, assurance and things as the purchaser may reasonably require for further or more perfectly assuring the property to the vendor.

11. Section 25A of the High Court Ordinance provides that:

“Where the Court of First Instance has given or made a judgment or order directing a person to execute any conveyance, contract or other document, or to endorse any negotiable instrument, then if that person neglects or refuses to comply with the judgment or order or cannot, after reasonable inquiry, be found, the Court of First Instance may on such terms and conditions, if any, as may be just, order that the conveyance, contract or other document shall be executed, or that the negotiable instrument shall be endorsed, by such person as the Court may nominate for that purpose.”

12. Counsel for the Applicant cited to me cases, including Lau Yun Lin v Registrar of Companies, HCMP 1111/2017 (15 May 2018), Lam Kiu Shing v Yau Fuk [2016] 3 HKLRD 242 as well as Li Kwan Chuen v Vector Development Limited [2009] 3 HKLRD 511 as instances of application of the provisions.

13.  All matters considered, I see that this is an appropriate case where the Court should accede to the application…”

14.I gratefully adopt the learned Judge’s analysis, which is applicable to the present case.

15.I am satisfied that it is appropriate to grant the order sought by the Applicant.  In particular, I am satisfied that:-

(1)  the parties intended to comply with the Housing Ordinance;

(2)  the Respondents should do all such lawful acts for assuring that the title to and the interest in the Property are assigned to and vested in the Applicant; and

(3)  the Applicant’s request for executing a confirmatory assignment is reasonable and necessary. 

16.I am also satisfied that pursuant to the order made by Master Dick Ho on 5 December 2024, the Applicant’s solicitors have effectuated substituted service by advertising the present proceedings in a local Chinese newspaper.

Order and Disposition

17.In the premises, I make the following orders:-

(1)  There be a declaration that there are substantial discrepancies between the 1999 Assignment and the authorized terms of the assignment under the Home Ownership Scheme Secondary Market Scheme as required under paragraph 4(c)  of the Schedule to the Housing Ordinance (Cap.283).

(2)  Subject to the consent to the rectification by the Housing Authority, the Respondents do execute a confirmatory assignment in favour of the Applicant to rectify the aforesaid discrepancies.

(3)  In the event that the Respondents fail to execute the said confirmatory assignment within 14 days, pursuant to section 25A of the High Court Ordinance (Cap.4), the Applicant’s solicitor, namely Mr. Yip Hin Fung Delanlo of Messrs Oliver CM Chan & Co, be authorized to execute the said confirmatory assignment for and on behalf of the Respondents.  The draft confirmatory assignment should be lodged to this court for approval.

(4)  The costs of and for execution of the confirmatory assignment be borne by the Applicant.

(5)  There be no order as to costs in these proceedings.

18.Insofar as paragraph (3)  of the order is concerned, I am inclined to view that in light of the heavy workload of the court, it would be appropriate to authorize the Applicant’s solicitors to execute the confirmatory assignment.  To save time and costs, in the future, practitioners should lodge a copy of draft confirmatory assignment for the court’s approval before the substantive hearing takes place.

Other Matters

19.I thank Mr. Billy Poon for his helpful assistance.

Mr. Billy Poon, instructed by Oliver C.M. Chan & Co., for the Applicant

The 1^st and 2^nd Respondents were not represented and did not appear