To Sze on, The Personal Representative of the Estate of To Cheong Lam, Deceased v. 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 Others

FAMV No 142 of 2025

[2025] HKCFA 23

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 142 OF 2025 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO 5 OF 2020)

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BETWEEN

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(By Original Action)

AND BETWEEN

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(By Counterclaim)

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DETERMINATION

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The Appeal Committee:

1.By a judgment of 16 October 2019, Deputy High Court Judge Alexander Stock SC determined three questions under two Order 14A summonses. The three questions were:

(1)     The “Milmo Question”.  Did the 1983 Lease (if validly executed) operate as an assignment from Madam Tang to D2 of the leasehold estate held by Madam Tang in the Parent Lot for the residue of the term under the Block Lease?

(2)     The “NTLEO Question”.  What was the effect of the NTLEO and the extension of leasehold term thereunder, on the ownership of the leasehold estate in the Parent Lot?  Who was entitled to the benefit of the extended lease granted by the NTLEO?

(3)     The “LRO Question”.  By virtue of the LRO, is the 1983 Lease, which was registrable but not registered, null and void as against the Registered Owners as bona fide purchasers for value under assignments which were duly registered?  What is the effect of the LRO on the competing claims to title made by D2 and the Registered Owners?

2.The Judge answered the Milmo Question and the NTLEO Question in favour of D2 but answered the LRO Question against him. On appeal, the Court of Appeal upheld the Judge’s conclusions in respect of all three questions.

3.This is the renewed application for leave to appeal by the applicant (D2 in the original action and the plaintiff by counterclaim). Leave was previously granted by the Court of Appeal to D2 to appeal in respect of three 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? (Question 1)

(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? (Question 2)

(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? (Question 3)

4.All three questions are subsidiary questions which were considered by the lower courts under the LRO Question.

5.D2 renewed the application for leave before us because he submitted that the questions should be formulated differently. He also submitted that there is a fourth question (which the Court of Appeal refused to grant leave) which merits this Court’s consideration in the appeal.

6.On a renewed application for leave, the Appeal Committee has full discretionary power to consider it afresh, including the power to reject the entire application. Further, if the Appeal Committee deems fit to grant leave on such application, we have the power to direct the parties to address the Court at the substantive appeal on points not raised in the application which requires resolution for the just and effective disposal of the appeal[1].

7.We are not satisfied that D2’s position is prejudiced by the formulation of the three questions by the Court of Appeal. The legal arguments embedded in the questions put forward on behalf of D2 can be canvassed in his printed case.

8.We also agree with the Court of Appeal that it is not appropriate to permit D2 to argue the fourth question in this Court. In his Re-re-re-Amended Defence and Counterclaim, D2 relies solely on his status as lawful lessee and the operation of the 1983 Lease as assignment under the Milmo principle to assert his right to possession of the land. There is no alternative contention to support his occupation of the land. In such circumstances, the fourth question does not add anything of substance to the disposal of the intended appeal.   

9.Having read and heard the submissions of the parties, we are satisfied that the questions formulated by the Court of Appeal are questions of great general or public importance and will grant leave to D2 to appeal on this basis.

10.The Plaintiffs indicated that if leave were to be granted to D2 to appeal to this Court, they would seek to contend that the lower courts were in error in deciding the Milmo Question and the NTLEO Question in favour of D2.

11.In the lower courts, the Plaintiffs contended that in the context of a New Territories lease in 1983 which carried with it a realistic prospect of renewal or extension, a “wait and see” exception under the Milmo principle should be applied. This contention was rejected by the lower courts.

12.Bearing in mind the renewal of leases under the New Territories (Renewable Crown Leases) Ordinance Cap 152 in 1973, which apparently had not been referred to in the lower courts, we are of the view that this argument merits further consideration by this Court. 

13.In our view, the effective and fair disposal of the intended appeal requires the following question to be considered in the appeal,

“In the context of a New Territories lease in 1983 which carried with it a realistic prospect of renewal or extension, whether a ‘wait and see’ exception under the Milmo principle should be applied.”

14.We are also satisfied that this question is of great general or public importance since it potentially affects all leaseholders in Hong Kong holding interests under Government Leases.

15.In an appeal to this Court, it is within our power to allow further questions to be raised by a respondent to defend the result in the lower court[2]. When such a question is raised in the submissions at the leave hearing, in the absence of surprise or unfairness to the other parties, the Appeal Committee can include such question in granting leave to secure the fair and effective disposal of the appeal.  

16.We therefore grant D2 leave to appeal on the following 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?

(4)     In the context of a New Territories lease in 1983 which carried with it a realistic prospect of renewal or extension, whether a “wait and see” exception under the Milmo principle should be applied.

17.The appeal will be listed for hearing on 10 March 2026.     

Mr Edward Chan SC and Mr Abel Lam, instructed by Lui & Law, for the 2^nd Defendant (by Original Action) and Plaintiff (by Counterclaim) (Applicant)

Ms Audrey Eu SC and Mr Anson Wong Yu Yat, instructed by Cheung & Co, for the 1^st and 2^nd Plaintiffs (by Original Action) and 1^st and 2^nd Defendants (by Counterclaim) (1^st and 2^nd Respondents)

The 3^rd, 5^th, 7^th and 9^th Defendants (by Counterclaim) (3^rd, 5^th, 7^th and 8^th Respondents), unrepresented, absent

Lawrence K Y Lo & Co, for the 4^th and 6^th Defendants (by Counterclaim) (4^th and 6^th Respondents), absent