Chan Lai Ching, The Executrix Named in the Will of Cheung Ying v. Kwan Tat Chee

HCMP 134/2025

[2025] HKCFI 5972

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 134 OF 2025

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BETWEEN

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D E C I S I O N

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1.I have before me an application by Inter-Partes Summons dated 10 October 2025 (“the Summons”) for inter alia an order of the court that the Respondent do execute a Deed of Rectification of the subject property (“the Property”) in favour of the Applicant for the purpose of rectifying errors in the assignment executed by Cheung Ying (“the Deceased”) and the Respondent on 11 December 2007 (“the Assignment”).  The Applicant is the executrix of the estate of the Deceased who passed away in 2024.

2.The Applicant had sought to have the Hong Kong Housing Authority (“HA”) consent to transfer the Property to the beneficiary named in the Will of the Deceased but was informed inter alia that no Letter of Nomination was applied for and the formal agreement for sale and purchase (“SPA”) and the Assignment entered into between the Deceased and the Respondent were not in the prescribed forms and did not contain terms authorised by HA.  Hence, they were void under s.17B of the Housing Ordinance, Cap. 283 (“HO”).  HA has required a Deed of Rectification to be executed by the Respondent and the Applicant.

3.The Applicant’s solicitors have contacted the solicitors who had acted for the Respondent in the conveyance in 2007 but was informed that they have not been able to locate or contact the Respondent.  The Applicant’s solicitors have inquired with the Immigration Department and was informed no death record of the Respondent was found up to 22 January 2025. 

4.According to the affirmations of service filed on behalf of the Applicant, the Originating Summons and the Summons have been served on the Respondent by leaving it at the last known address of the Respondent.  The Respondent was absent on the first return date of the Summons and is also absent at the adjourned hearing of the Summons today despite service of the relevant court documents on him.  Considering all the circumstances, I considered it expedient to proceed despite the non-appearance of the Respondent under O.32, r.5 of the Rules of the High Court, Cap. 4A (“RHC”).  Given the service of the relevant court documents and non‑appearance of the Respondent, I am also satisfied that it is appropriate to summarily dispose of the Originating Summons under O.28, r.4 of RHC.

5.Section 25A(1) of the High Court Ordinance, Cap. 4 (“HCO”) 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 -

(a) neglects or refuses to comply with the judgment or order; or

(b) 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.”

6.Having considered the SPA (see e.g. the recital[1] and clause 19[2]), it is clear that the Deceased and the Respondent intended at the time that the completion of the conveyance would have to be in accordance with the HO. 

7.It is expressly provided in s.35(1) of the Conveyancing and Property Ordinance, Cap. 219 and specifically implied into 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 purchaser.

8.In the circumstance of this case, I see no reason why the Respondent should not be ordered to execute the Deed of Rectification and given that despite reasonable inquiry by the Applicant, the Respondent cannot be found, I will accede to the application under s.25A of HCO. 

9.As to who should execute the Deed of Rectification if the Respondent fails to and/or cannot be found, initially, I was of the view that the Registrar should not be troubled to execute the same and the Applicant’s solicitor could do so.  However, on further reflection, I am of the view that potentially there may be a conflict of interest given the Applicant’s solicitors also acted for the Deceased in the conveyancing in 2007 which is not compliant with the HO and required the present application.  See Sin Tai Kong & Anor v Tang Kam Ming Keith [2019] HKDC 781 per HHJ Andrew Li at §§25-31 and Kwong Muk Hing, one of the executors named in the Will of Luk Heung deceased v Cheng Pui Nin William & Anor [2019] HKCFI 1726 per DHCJ Leung (as he then was) at §13.

10.Although the Applicant also sought an order for a Letter of Nomination be issued subject to the consent of HA, I see no reason why I should make such an order when HA is not a party to these proceedings and if consent can be obtained from HA, no order of the court is necessary.

11.I will therefore order as follows:

(1)  A declaration that there are substantial discrepancies between the Assignment (Memorial No. 08011400990056) in relation to the Property and the authorized terms of the assignment as required under paragraph 4(c) of the Schedule to the HO;

(2)  Subject to the consent to the rectification by HA, the Respondent do within 14 days from receipt of such consent execute a Deed of Rectification in favour of the Applicant, as executrix of the estate of the Deceased, to rectify the discrepancies;

(3)  In the event that the Respondent fails to execute the said Deed of Rectification and/or cannot after reasonable inquiry be found, an order pursuant to s.25A of HCO directing and appointing the Registrar of the High Court or such other person(s) as may be appointed by the Registrar to execute the said Deed of Rectification for and on behalf of the Respondent, and for such purpose the draft Deed of Rectification must be lodged for the Registrar’s approval;

(4)  The costs of and for execution of the said Deed of Rectification shall be borne by the Applicant; and

(5)  There be no order as to costs of the Originating Summons and the Summons.

Mr Kwok Hong Yee Jesse, of Messrs. Jesse H.Y. Kwok & Co. for the Applicant

The Respondent was not represented and did not appear