Yim Tin Fook, Since Deceased (Yim Lok Man Winne, Appointed By Order Dated 10 May 2024 To Represent the Estate of Yim Tin Fook, Deceased) and Another v. Yu Chor Lai, Kong Wai Hung and Sou Ka Lun Trading As Wang Cheung Industrial Chemicals Co and Another

CACV 5/2020, [2025] HKCA 816

On Appeal from [2019] HKCFI 2511

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 5 OF 2020

(ON APPEAL FROM HCA NO 2613 OF 2006)

____________

BETWEEN

(By Original Action)

AND BETWEEN

(By Counterclaim)

____________

_________________

J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

1.By our judgment dated 18 July 2025,[1] we dismissed D2’s appeal, DC8’s respondent’s notice and Ps’ cross-appeal, upholding the determinations of 3 questions of law by the judge below and the consequential orders he made.

2.By amended notice of motion, D2 applies for leave to appeal from our judgment to the Court of Final Appeal. The proposed questions of great general or public importance are as follows:

“ (1) What is the proper approach of section 3(2) of the Land Registration Ordinance (Cap. 128) (“LRO”) to a registered instrument that in law conveys no interest in land, and therefore does not affect land and is unregistrable. In particular:-

(a) Whether a registered instrument which conveys no interest in land and therefore is not registrable for it does not affect land, may be relied upon by or otherwise benefits a subsequent bona fide purchaser under section 3(2) or LRO. In particular, whether section 3(2) of LRO applies to an instrument not affecting land notwithstanding registration;

(b) Whether having regard to section 4 of the LRO, a person claiming to be a purchaser under section 3(2) would have to be a person holding a registerable document of purchase;

(c) Whether the approach should be validity first, priority second. If so, whether the approach to the validity of instruments applies to both sections 3(1) and 3(2) of LRO (see §80 of CA Judgment); and

(d) Whether an instrument by virtue of mere registration can create an interest in favour of the subsequent purchaser under section 3(2) of LRO.

(2) Whether a donee by way of deed of gift of landed property and not giving valuable consideration falls within the meaning of “purchaser” for the purpose of section 3(2) of LRO (see §95 of CA Judgment). If the answer is no, whether someone purporting to purchase the land from such donee is a purchaser within the meaning of section 3(2) of LRO. Whether in law, for the purpose of the application of section 3(2) of LRO, it is justified to distinguish the case between (a) someone purporting to purchase from such donee and (b) someone purporting to purchase from a third party, such as a purported agent without authority or from a fraudster without any title or interest in the property?

(3) Whether “the same parcels of ground, tenements, or permises” under section 3(2) of LRO refers only to the original or identical (同一) parcels of grounds, which, upon the fragmentation of tenure through sub-division, render the newly subdivided parcels of grounds to fall out of the scope of section 3(2) of LRO (see §102 of CA Judgment).

(4) On the hypothesis, in view of the finding that the 1983 Lease (which operated as an assignment) is rendered void under section 3(2), whether the Plaintiffs could be said to have acquired a good title to the property “purchased” from someone who did not have any title so as to justify the claim of possession from the 2^nd Defendant who was in possession of the land.”

3.On 19 August 2025, G Lam JA wrote to the parties expressing the provisional view that at least Question 1[2] arguably raises a question of some general importance, subject to any submissions to the contrary, and directed that Ps should first lodge written submissions in opposition, if so advised. By their solicitors’ letter dated 28 August 2025, Ps stated that in light of the court’s indication, in order to save time and costs, they will not lodge any skeleton submissions (making clear that this should not be taken as a concession on the arguability and/or appropriateness of the questions formulated). DC8 has not yet taken any part in the application. Accordingly, D2’s application is not opposed.

4.In our view, the underlying contest between the competing claims of Ps and D2 does raise a question of general importance regarding the effect of section 3(2) of the LRO. We do not however favour the specific formulations proposed by D2 which make unwarranted assumptions that beg the question. For example, his Question 1 presupposes that the assignments to Ps conveyed no interest in land, did not affect land and were unregistrable. But if the 1983 Lease was null and void as against the Ps under section 3(2), then those assignments did convey an interest in land to them, did affect land and were registrable. Such circularity should be avoided. Further, it is not clear what purpose is served by Question 4 which is not a separate matter argued before this court or, as far as we can see, before the judge.

5.Accordingly, we give leave to appeal on the following reformulated questions:

(1)  Where A has assigned land to B by an instrument in writing which is registrable but unregistered, and A subsequently sells and assigns the same land to C who takes the assignment bona fide for valuable consideration and registers the assignment, is B’s instrument null and void as against C by virtue of section 3(2) the Land Registration Ordinance?

(2)  Is the answer different if, instead of A subsequently selling and assigning the land directly to C, A first gifts and assigns the land to X and X then sells and assigns the land to C? Is B’s instrument null and void as against C?

(3)  Is the answer different if the land sold and assigned to C is not the whole but only part of the land assigned to B? Is B’s instrument null and void as against C so far as the land assigned to C is concerned?

6.Costs are to be in the cause of the appeal.

Messrs Cheung & Co, for the 1st and 2nd Plaintiffs (by Original Action) and the 1st and 2nd Defendants (by Counterclaim)

Messrs Lui & Law, for the 2^nd Defendant (by Original Action) and the Plaintiff (by Counterclaim)