Chan Po Yee v. Tsang Chun Chi

DCMP 964/2026

[2026] HKDC 1864

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 964 OF 2026

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JUDGMENT

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Introduction

1.This is the hearing of a vendor and purchaser summons concerned with the validity of a title requisition raised by the Plaintiff as the purchaser in a conveyancing transaction with the Defendant that has eventually fallen through.

2.By the Originating Summons issued on 9 February 2026, the Plaintiff seeks various declarations against the Defendant including, inter alia, that the Defendant has failed to show, prove and give good title to Flat A on Penthouse, Loong Wah Building, No 36 Baker Street, Kowloon, Hong Kong (the “Property”), and has wrongfully repudiated the formal agreement for sale and purchase dated 27 May 2025 (the “2025 SPA”).

3.The Plaintiff also seeks other reliefs including that the Plaintiff has effectively rescinded the 2025 SPA, that the Defendant be ordered to return the deposits paid to the Plaintiff under the 2025 SPA, and that the Plaintiff be reimbursed with the stamp duty paid and be indemnified for the estate agent’s commission payable in respect of the transaction.

The facts leading up to the dispute

The previous transaction by which the Defendant acquired the Property

4.The Property was acquired by the Defendant under an Assignment dated 25 August 2011 and registered by Memorial No 11092302770193 (the “2011 Assignment”).

5.Prior to the acquisition of the Property by the Defendant, So Wing Min (“SWM”) and one So Albert had acquired the Property as joint tenants pursuant to an Assignment dated 5 July 1979 registered by Memorial No UB1738968. On 16 September 2008, So Albert passed away and SWM became the sole owner of the Property by survivorship, and eventually became the immediate predecessor-in-title of the Defendant.

6.There is no dispute that, as matters transpired, by the Order of Mr. Justice Poon dated 15 July 2011 in High Court Mental Health Case No.27 of 2011 (the “HCMH Order”) made pursuant to Part II of the Mental Health Ordinance, Cap.136 (“MHO”), one Chan Lee Ying (“CLY”) was appointed by the court as Committee of the Estate of SWM, such that under the 2011 Assignment, the vendor was described as “CHAN LEE YING (陳莉英) Committee of the Estate of SO WING MIN (蘇允銘)”.

7.Under paragraph 14(a) of the HCMH Order, the Committee was expressly authorised to sell the Property belonging to SWM at a price not less than HK$1,200,000. Paragraph 14(c) further empowered the Committee “to execute such deeds, contracts, and documents as may be necessary to effectuate such sale and to receive and give discharge for the proceeds thereof”.

8.On 17 August 2011, CLY and the Defendant entered into a formal agreement for sale and purchase of the Property (the “2011 SPA”), registered by Memorial No 11082402580012.

9.Part I of the First Schedule to the 2011 SPA described the vendor as “CHAN LEE YING (陳莉英) (Holder of Hong Kong Identity Card No…), the Committee of the Estate of SO WING MIN (蘇允銘) (Holder of Hong Kong Identity Card No...) of [address]”. The same Schedule expressly provided: “The Vendor shall assign under an Order of Court”.

10.Clause 6 of the 2011 SPA also provided that, on completion, the vendor “acting in the capacity described in Part I of the First Schedule hereto” and all other necessary parties, if any, would execute a proper assignment or other assurance of the Property to the Defendant.

11.Subsequently, pursuant to the 2011 SPA, the 2011 Assignment was executed on 25 August 2011, and registered in the Land Registry under Memorial No 11092302770193.

The present transaction

12.On 19 May 2025, the Defendant and the Plaintiff entered into a provisional agreement for sale and purchase of the Property at the price of HK$1,900,000. Pursuant to the provisional agreement, the Plaintiff paid HK$90,000 to the Defendant as initial deposit.

13.On 27 May 2025, the Defendant and the Plaintiff entered into the 2025 SPA, the completion date being fixed on 29 August 2025. Under the formal agreement, the Plaintiff paid a further deposit of HK$100,000. The total amount of deposit paid by the Plaintiff was therefore HK$190,000.

14.It is common ground that under Clause 6 of the 2025 SPA, the Defendant was required to prove good title to the Property.

15.By their letter dated 4 June 2025, the Plaintiff's solicitors raised, inter alia, the following requisition on the Defendant’s title to the Property concerning the validity of the 2011 Assignment on the basis that CLY had not executed it “in the name of” SWM:

“…

(e) We note from the above Agreement for Sale and Purchase and Assignment that Chan [i.e. CLY] in her own name and in the capacity as committee of the estate of SWM entered into the conveyancing documents in the sale of the property.

(f) It is just trite law that under the Court Order, the property is still vested to the estate of SWM who is alive though Chan is appointed by the Court as the committee of the estate of SWM. That means at all material times Chan had no interests in the propertv though she had been authorized by the Court to sell the property and execute the relevant documents of conveyance for the sale of the property. For the powers of the committee, please refer to Section 12 of the Mental Health Ordinance (Cap.136) which reads ‘The Court may, on the appointment of a committee of the estate of a mentally incapacitated person, direct by the order of appointment or by any subsequent order that the person to whom the charge of the estate is committee shall have such powers for the management thereof as to the Court shall deem necessary and proper, reference being had to the nature of the property, whether movable or immovable, of which the estate may consist...’. At_all material_times, the property has never been vested to Chan.

(g) In other words, Chan as the committee of the estate of SWM under the Court Order is like the role of a lawful attorney to deal with the property subject to the Court Order and the Mental Health Ordinance. Under the Court Order, Chan has been authorized to sell the property and execute the relevant conveyancing documents for the sale but she has no interests in the property. That means at all material times, Chan, like an attorney, was unable to pass any interests to the Purchaser under the Agreement for Sale and Purchase and Assignment. Chan has been authorized and empowered by the Court to sell and execute the documents therefor under the Court Order but it should be SWM, not Chan, as the Vendor to the Agreement for Sale and Purchase and Assignment. Paragraph 1 of the Assignment reads, inter alia, ‘...the Vendor (Chan)…and in pursuance of the Order, the vendor as Committee of the Estate of the said So Wing Min ASSIGNS to the Purchaser the Property..’. As written before, under the Court Order and the Mental Health Ordinance, the estate of SWM including the property shall not be vested to Chan as the committee of the estate. The Vendor should be SWM though the Assignment shall and should be executed by Chan as the committee of the estate of SWM.

(h) Paragraph 3 of the Court Order reads, inter alia, “The Committee be authorized in the name and on behalf of SWM to give necessary notices of withdrawal…’ This shall enhance our view that Chan has been authorized by the Court to act in the name and on behalf of SWM. As she has no interests in the property at all material times, she is unable to assign any interests in the property to the Purchaser under the Assignment.

(i) In the premises, the Agreement for Sale and Purchase and the Assignment are not legally binding on the estate of SWM. Your client is therefore unable to pass good title to our client.”

16.By their letter dated 20 June 2025, the Defendant's solicitors responded by taking the stance that there was no ambiguity about the role of CLY as stated in the 2011 Assignment as the document had made clear that CLY had acted only in her representative capacity as Committee of SWM’s estate. The Defendant’s solicitors adopted the view[1] that whether the 2011 Assignment described the vendor as “SWM acting by the Committee of his estate” or CLY being the “Committee of the estate of SWM” was merely “a drafting preference, not a legal requirement”, as the assignment already clearly indicated CLY’s capacity. As such, the Defendant through her solicitors maintained that the Property had been validly transferred to the Defendant.

17.By their letter dated 23 June 2025, the Plaintiff’s solicitors insisted on their requisition, further relying on section 17(1) of the MHO, and asserted that the 2011 Assignment should have been executed in the name of SWM and not the Committee for his estate, as the Committee had no interest in the Property to assign to the Defendant.

18.As the Plaintiff’s solicitors did not accept the Defendant’s answer to the requisition, the parties did not complete the transaction on the original completion date, but they subsequently agreed to extend the completion date to 22 September 2025 at 5:00 p.m.

19.Despite subsequent negotiations on possible ways conducive to completion, including the possibility of a confirmatory assignment, no agreement could be reached. Apparently, due to the fact that it was later reaslised that SWM had already passed away on 5 December 2011, and no grant of letters of administration has been made, a confirmatory assignment could no longer be made by CLY acting as Committee for his estate since her appointment would have ceased to take effect as from the death of SWM.

20.Eventually, by her solicitors’ letter dated 22 September 2025, the Plaintiff refused to complete and accepted the Defendant’s repudiation of the 2025 SPA. On the other hand, the Defendant maintained that she had shown good title, and that the Plaintiff’s refusal amounted to wrongful repudiation of the 2025 SPA.

Applicable principles on the duty to prove good title

21.There is little dispute that a vendor in a conveyancing transaction has the burden of proving the title to be conveyed beyond reasonable doubt. Save in some exceptional circumstances, parties to such transactions, as in the present case, would have agreed that the vendor has to show a good title to the subject property. The proof of title in this respect means that the vendor has to show beyond reasonable doubt that the purchaser will not be at risk of a successful assertion against him of an incumbrance: see MEPC Ltd v Christian- Edwards [1981] AC 205 at 220D.

22.In De Monsa Investments Ltd v Whole Win Management Fund Ltd (2013) 16 HKCFAR 419 at para.107, Litton NPJ explained what is meant by the vendor’s obligation to make good title:

“107. What then is meant by the vendor’s obligation to make good title? The principle as stated in the leading textbook in Hong Kong, Hong Kong Conveyancing Law and Practice Chapter VI para 2 is as follows:

“In a case where the vendor has agreed to give or make good title, his duty is to ensure that, by the completion date….the nature of his title is neither defective nor defeasible. He must deal, in a way acceptable ultimately to the court, with all defects in that title so that, paraphrasing the words of Lord Russell of Killomen in MEPC Ltd v. Christian Edwards [1981] AC 205, the facts and circumstance are to compelling that, beyond reasonable doubt, the purchaser will not be at risk of a successful assertion against him of any encumbrance…””

23.The vendor discharges his obligation if he shows to that standard that he is in a position to convey the estate or interest contracted to be sold “without any blot, or possibility of litigation to the purchaser” – see Chi Kit Co Ltd & Anor v Lucky Health International Enterprise Ltd (2000) 3 HKCFAR 268 at 282J-283A, referring to Re Stirrup’s Contract [1961] 1 WLR 449 at 454.

Discussion

24.Despite there is little dispute over the above general principles concerning the duty to give good title, the Plaintiff stresses that in this particular case, the focus is not on whether there is any risk of adverse claims or incumbrances over the Property, but the issue boils down to whether the 2011 Assignment had validly passed title of the Property to the Defendant.

25.The Plaintiff's case is that the 2011 Assignment was executed in breach of section 17(1) of the MHO which provides:

“17.  Committee to execute instruments

(1)  The committee of the estate of the mentally incapacitated person shall, in his name and on his behalf, execute all such conveyances and instruments of transfer, relative to any sale, mortgage or other disposition of his estate as the Court shall order.’ [underline added]

26.According to the Plaintiff, since the 2011 Assignment was executed by CLY as the Committee of the estate of SWM, it was not executed in the name of SWM. It was therefore executed in breach of section 17(1). Since CLY had no title or beneficial interest in the Property, she would not have passed title to the Defendant by such execution.

27.The Plaintiff does not dispute that under the HCMH Order, CLY as the Committee was authorised to sell the Property belonging to SWM, and that under paragraph 14(c) of the HCMH Order, CLY as the Committee was empowered to execute “such deeds, contracts, and documents as may be necessary to effectuate such sale”. The issue boils down to one of technical execution. As already mentioned above, the Plaintiff relies on the words “in his name and on his behalf” in section 17(1) of the MHO.

28.Clause 6 of the 2011 SPA stipulated that the vendor, “acting in the capacity described in Part I of the First Schedule”, would execute the assignment. The Defendant submits the stipulated capacity was therefore not that of the personal or beneficial owner but that of the Committee of SWM’s estate, acting under the HCMH Order. This was also confirmed in the 2011 Assignment, in particular the recitals.

29.The Defendant says the Plaintiff’s case rests upon an over-formalistic and incorrect construction of section 17(1). The Plaintiff’s construction treats the order of names in the party-description clause as conclusive, while disregarding the entirety of the transaction. The Defendant says that must be the wrong approach to the construction of a conveyancing instrument. It is submitted by Ms Mok for the Defendant that the real question is whether there is any real risk, as opposed to a theoretical drafting point, that the Defendant's title would be impeached.

30.The Defendant further submits that the distinction between “SWM acting by CLY as Committee of the Estate of SWM”, and “CLY, Committee of the Estate of SWM” is not a legally material distinction. In any event, there is no ambiguity arising from the relevant documents as to the capacity in which CLY had executed the 2011 Assignment in favour of the Defendant.

31.The Plaintiff referred to Bowstead & Reynolds on Agency (23^rd ed) at para.2-023 where the learned author said:

“The reference above to signature “in his name” can be taken to suggest that the agent should write the principle’s name first, adding, optionally, the agent’s own signature below, and there is further support for such a requirement in the case cited[2]:

“On this view if Richard Roe wished to sign as agent for John Doe he can sign John Doe by his agent Richard Roe, but he cannot sign Richard Roe as agent for John Doe.””

32.Relying on the above, the Plaintiff submits that an agent should write the principal’s name first, adding, optionally, the agent’s own signature below. However, as is pointed out by the Defendant, the learned author further stated in para.2-023 that:

“However, despite the above dicta, the inflexibility of such reasoning (the burden of which would be quite unknown to most signers who had not taken legal advice and to many who had) makes the approach doubtful: it has been said in the Australian decisions[3] that such requisites for ordinary signature by an agent should not be rigidly insisted on, at least unless the wording of the enabling provision appears to require it. The crucial question must surely be whether signature by an agent is permissible so long as the purport of such a signature is clear, it is difficult to see that the form should be of particular consequence.” [underline added]

33.In light of the above, I agree that under the general law of agency, it is plain as a pikestaff here that the signature by CLW as Committee of the estate of SWM was permissible so long as the purport of such a signature is clear.

34.The Plaintiff also made a comparison between section 17(1) of the MHO and section 6(1) of the Powers of Attorney Ordinance, Cap 31 (“PAO”), which permits a donee of a power of attorney to execute an instrument with his own signature and in his own name. With respect, the comparison is not apt as section 6 of the PAO deals with a different legislative regime regarding the granting of private rights to execute instruments on the donees of such power. The fact that section 6 of the PAO expressly provided for execution of instruments by the attorneys in their own names does not necessarily lead to a conclusion that under section 17(1) of the MHO, a court-appointed Committee should not execute documents in the like manner as in the present case.

35.One must go further into considering whether that would have been allowable within the proper construction of section 17(1) of the MHO as a matter statutory interpretation.

36.The modern approach to statutory interpretation is to adopt a purposive interpretation. in HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568, Li CJ stated:

“11. In interpreting a statute, the court’s task is to ascertain the intention of the legislature as expressed in the language of the statute. This is of course an objective exercise. The court is not engaged in an exercise of ascertaining the legislative intent on its own. As Lord Reid pointed out in Black-Clawson International Ltd v Papierwerke Waldhof – Aschaffenburg AG [1975] AC 591 at 613G:

‘We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used.’

12. The modern approach is to adopt a purposive interpretation. The statutory language is construed, having regard to its context and purpose. Words are given their natural and ordinary meaning unless the context or purpose points to a different meaning. Context and purpose are considered when interpreting the words used and not only when an ambiguity may be thought to arise. In HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at 606E, Sir Anthony Mason NPJ stated:

‘The modern approach to statutory interpretation insists that context and purpose be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity may be thought to arise.’

See also Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144 at 154 B-C. As the Court pointed out in Town Planning Board v Society for the Protection of the Harbour Limited (2004) 7 HKCFAR 1 at 14 A-C, the mischief rule is an early example of the purposive approach. And the purposive approach (including the mischief rule) has been reflected in Hong Kong in s.19 of the Interpretation and General Clauses Ordinance, Cap.1.

13. The context of a statutory provision should be taken in its widest sense and certainly includes the other provisions of the statute and the existing state of the law. See Town Planning Board v Society for the Protection of the Harbour Limited at 13 I-J and Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461.

14. The purpose of a statutory provision may be evident from the provision itself. Where the legislation in question implements the recommendations of a report, such as a Law Reform Commission report, the report may be referred to in order to identify the purpose of the legislation. The purpose of the statutory provision may be ascertained from the Explanatory Memorandum to the bill. Similarly, a statement made by the responsible official of the Government in relation to the bill in the Legislative Council may also be used to this end. See PCCW – HKT Telephone Ltd v Telecommunications Authority (2005) 8 HKCFAR 337 at 351 F-J and Director of Lands v Yin Shuen Enterprises Ltd (2003) 6 HKCFAR 1 at 15 A-H.”

37.In T v Commissioner of Police (2014) 17 HKCFAR 593 at para.4, Ma CJ said:

4…The starting point in any exercise of statutory interpretation is to look at the context and purpose of the relevant provisions. As has been stated and reiterated in numerous recent decisions of this Court, it is to context and purpose that one looks first in examining the words under scrutiny. One does not begin by looking at what might be termed “the natural and ordinary meaning”, much less I would add a literal meaning, and then put the onus on anyone seeking to advance different meaning to establish some ground which compels acceptance of that different meaning. It is context and purpose that will, in the vast majority of cases, be determinative of the meaning of the words sought to be construed, rather than attempting as a starting point to look at words in a vacuum.” [underline added]

38.With respect, the argument of the Plaintiff that the 2011 Assignment did not comply with section 17(1) of the MHO in that it was not signed in the name of SWM is, as Ma J has put it in T v Commissioner of Police, an attempt to put the words in a vacuum. At the hearing, I enquired with Mr Lau for the Plaintiff as to how exactly would the Plaintiff suggest that the 2011 Assignment should be executed. Initially Mr Lau suggested that CLY should have signed the name of SWM on the execution page to comply with section 17(1) of the MHO. Upon further discussion with him, he did not insist on that. As to how the name of the vendor should be put on the deed, it was then suggested by the Plaintiff that it may suffice if the vendor was described as “SWM acting by CLY, the Committee of his estate” or “CLY acting on behalf of the estate of SWM”.

39.Despite Mr Lau’s efforts, I am of the view that, applying the above general principles of statutory interpretation, the execution by the vendor of the 2011 Assignment was not in breach of section 17(1) of the MHO. There is no doubt that CLY was indeed executing the assignment in her capacity as Committee for the estate of SWM as authorised under the HCMH Order, and not in her own name. There can be no question that the assignment was executed on behalf of SWM or his estate. The name of SWM was clearly identified in the 2011 Assignment. There is no ambiguity at all as to the purport of the transaction being completed under the provisions of the MHO and the HCMH Order on behalf of SWM or his estate.

Conclusion

40.For the reasons set out above, I find that the Defendant had shown good title and had sufficiently answered the subject requisition raised by the Plaintiff. Therefore, the Plaintiff was not entitled to terminate the 2025 SPA.

41.The Originating Summons is therefore dismissed. I also make a costs order nisi that the costs of the Originating Summons be to the Defendant, to be taxed if not agreed.

42.Lastly, I would like to thank counsel for their assistance.

Mr Raymond Lau, instructed by Wong & Partners, for the Plaintiff

Miss Tina Mok, instructed by Fan Wong & Tso, for the Defendant