Sheung Chuen and Another v. Sik Mui Chee

HCA001841/1966

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO.1841 of 1966

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Coram: Huggins, J.

Date of Judgment: 11 September 1968

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JUDGMENT

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Huggins, J: This case was estimated to take 2 days, but in the event the trial lasted 13 days. I have already expressed my views on this. The trial commenced on 6th November 1967 but following upon the adjournment which then became inevitable hearings were spread over the ensuing 7 months. By that time I felt quite unable to deliver an extempore judgment and indeed required a reasonable period to re-read the evidence and consider the issues in the case. The necessary time has not been made available to me until the long vacation, with the result that nearly 10 months have elapsed since the matter first came before the court. I cannot but think that this is highly unsatisfactory and that it amounts to a partial denial of justice.

2. The parties are all Buddhist monks. The 1st plaintiff is the disciple of the 2nd plaintiff. The plaintiffs' first claim is based upon an alleged oral agreement in or about December 1962, which they say is evidenced by writing and under which the defendant is alleged to have promised to provide certain financial benefits to the plaintiffs in consideration of their making available to him some land on Lantao Island. They ask for specific performance of the agreement or damages in lieu. Their second claim is under an alleged agreement in writing dated 15th January 1966 whereby the defendant promised to pay to the plaintiffs "a monthly allowance of $60 over and above the monthly maintenance" and to demolish and then rebuild the old temple on a new site, there being an express term that the rebuilt temple should be "remodelled on" the old one. The consideration for these promises was not pleaded, although I gave leave to amend. The defendant alleges that the document dated 15th January 1966 is a forgery. He denies the oral agreement and says that there was a straight-forward contract for the sale by the 1st plaintiff to the defendant of part of the land at a price of $3,000.-. This land was, he says, duly assigned, but the plaintiffs were allowed to remain on the land under a licence until he eventually gave notice to quit. He counterclaims for possession and damages for trespass.

3. It is not, I think, in dispute that the 2nd plaintiff established himself in the area in 1932, apparently as a squatter or at the most with the tacit consent of the Government, to which the land belonged. He then cultivated some 17,500 square feet. In 1936 he occupied another small plot (Lot 319) on which he erected a building which has since been known as Yat Shing Temple. In about 1952, i.e. 16 years ago, the 1st plaintiff became his disciple and they have lived in Yat Shing ever since. When the 2nd plaintiff obtained a legal title to Yat Shing I do not know but in 1958 he conveyed the site of the temple to the 1st plaintiff. I so find although there is a strange difference between the name of the 2nd plaintiff as signed on the conveyance and the name as it was written in document Ex.H, the later document being, according to the 2nd plaintiff, from the pen of the defendant (though copied from a draft made by the 2nd plaintiff himself) and, according to the defendant, from the pen of somebody other than himself (probably the 2nd plaintiff). The conveyance on sale recited that a price of $1,000 was paid, but both parties assert that no money in fact passed. Their story is that a clerk in the District Office prevailed upon them to insert the figure of $1,000 although he was told that in fact it was a conveyance by way of gift. There is, I am told, no form provided by the New Territories Administration which is applicable to a donatio inter vivos and I am asked to believe that the clerk required some assessment of the value for the purpose of fixing stamp duty and registration fees. Nothing really turns upon my knowing whether consideration was given or not, because the conveyance is not impugned, and the only relevance of the matter is that in 1963 the first plaintiff conveyed the same land to the defendant and it is alleged by the plaintiffs that a price was similarly inserted in the conveyance on that occasion although none was in fact given, while the defendant maintains that a sum of $3,000 was actually paid. What the plaintiffs say is that they were still labouring under the same misunderstanding that there could be no conveyance unless a price appeared in the conveyance. Unquestionably both plaintiffs are simple people who might readily be persuaded to comply with any direction given to them by a Government official but, as I see it, the only possible reason why the clerk should suggest the naming of a price was that he was too lazy to amend the form: I cannot believe that he honestly thought there could be no conveyance by way of gift. It is perhaps remarkable, though not necessarily impossible, that a lady in the position of the 1st plaintiff should, some time after entering upon the religious life, be able to lay her hands on so large a sum of money and it is likewise strange that a master should demand such a sum of money from his disciple in the circumstances which obtained here. I think the 2nd plaintiff has for some time been in financial straits and it is common ground that in September 1957 the defendant, who had first become acquainted with the 2nd plaintiff in about 1950, started paying him $50 a month towards the maintenance of himself and his disciple. The defendant says he started the payment at the request of the 2nd plaintiff, who had said he was without means and who was threatening suicide: the 2nd plaintiff says that it was a payment which was volunteered by the defendant and which he could not accept until he had obtained the permission of his superiors. I think the former is more likely to be true. I do not overlook the possibility that both plaintiffs misunderstood what was said to them by the clerk. Nevertheless in the absence of really convincing evidence to the contrary I think the evidence of the document itself must carry the greatest weight and I find that the $1,000 was in fact paid.

4. In 1959 the plaintiff for the first time obtained a Crown permit to occupy the surrounding 17,500 square feet of land, but he appears to have obtained this also in the name of the 1st plaintiff.

5. In 1962, the 2nd plaintiff says, he went to the defendant's temple in Wong Tai Sin. It was his practice to go once every four months to collect the maintenance allowance and on this occasion he called for that purpose at about mid-night. The defendant began to tell him of a plan he had to build a temple in Lantao to which he could later retire. By way of paying back the defendant's past kindness the 2nd plaintiff suggested that he would allow the defendant to use his place. Both liked the idea and according to the 2nd plaintiff it was agreed that the defendant should, to use his own words, become his successor to the land in consideration of the following terms: 1. that the defendant should not change the name of the temple from Yat Shing; 2. that he would provide maintenance for both plaintiffs during their lives and would be responsible for their burial; 3. the 2nd plaintiff would in the meantime allow the defendant to develop the place (by which I understand him to mean Lot 319 and the surrounding 17,500 square feet); 4. the defendant would continue to pay the $50 a month until the development was complete, but that the payments should then cease. The alleged memorandum in writing of this agreement is a letter dated 18th/12th moon 1962 from the defendant to the 2nd plaintiff. (The translation of the document bears the date "18th December 1962" but it is agreed that there has been considerable confusion between the Gregorian and the lunar calendars).

6. The defendant gives a very different account of what has been described as "the mid-night meeting". He says that the 2nd plaintiff broached the subject of his (the defendant's) taking over the temple because the 1st plaintiff, in whose name the temple stood, would not be able to maintain it or support herself when the 2nd plaintiff died. The defendant says that he would not agree to anything at the time because he was not sure the 1st plaintiff would not object. The idea appealed to him, however, and he discussed it with a Mrs. Li, a wealthy member of his congregation, with a view to obtaining financial support for the erection of a large temple. He and Mrs. Li give very different accounts of their discussion, but there is no doubt that the letter of the 18th/12th moon to which I have already referred was written as a result of the discussion.

7. I do not accept either party's interpretation of this letter. It is quite obviously not a memorandum of an oral agreement between the defendant and the 2nd plaintiff. It is a review of some of the difficulties arising from the matter discussed at the mid-night meeting and a clear refusal of the offer by the 2nd plaintiff to use his good offices to persuade the 1st plaintiff to convey Lot 319 to the defendant without consideration and to persuade the Government to transfer the licence of the surrounding land to the defendant. These were essential terms in the agreement alleged by the plaintiffs and I am satisfied that not only is this not a sufficient memorandum of an agreement relating to land but that there was no concluded agreement at all. On the other hand I am satisfied that the letter gave a completely false (and deliberately false) report of the defendant's discussion with Mrs. Li: nothing had been said about Mrs. Li's using the proposed new temple as a summer resort; she never agreed to pay the costs of re-development and she never said the other things attributed to her. I believe Mrs. Li when she says that she told the defendant to refuse the 2nd plaintiff's offer and that he subsequently tried to interpret the letter as a refusal "in a round about and polite way". It was, of course, nothing of the sort. I believe he did tell Mrs. Li that Lot 319 had been offered to him as a gift, though at one time he denied that, and that he hoped to be able to acquire more land from the Government.

8. Stopping there for a moment, it is apparent that the findings already made dispose of the plaintiffs' first claim. The agreement alleged was not made.

9. There were several difficulties in the way of the plaintiffs' second claim. The document in question, when produced to the court, was not stamped as an agreement. I had grave doubts whether it could be interpreted as an agreement but since it was relied upon as such I thought it ought to be stamped. It has now been stamped as an agreement but it is not signed by the 2nd plaintiff and there is no evidence before me that the 2nd plaintiff ever signed a counterpart. But the issue upon which the case has been fought is whether the document was in fact signed by the defendant. He denies the signature and he seeks to show that on the day in question he was not in Lantao, where the 2nd plaintiff says he saw the defendant sign. Here it is necessary to mention that the 2nd plaintiff admits having forged one document a copy of which has been put in evidence. The only objection made to the production of this copy was that it had not been put to the 2nd plaintiff: it was a document which the defendant said the 2nd plaintiff had shown to him and the 2nd plaintiff admitted it was a copy of a letter he had written in the defendant's name. There is no suggestion that the defendant authorized the writing of the letter and the defendant says that when he learned of it he objected most strongly and thought it was written with intent to embarrass him. The 2nd plaintiff's explanation is that he was getting impatient at the delay in the issue of the Crown lease to the defendant, that lease being necessary to enable his alleged agreements with the defendant to be fulfilled. It was at best a thoroughly a stupid letter and in the absence of any real evidence of a more sinister motive I leave it at that. The fact remains that by writing it the 2nd plaintiff showed himself not to be above forging the defendant's signature if he thought it suited his purpose. The evidence of the 2nd plaintiff was that on a day in January 1966 the defendant visited Lantao. By that time re-development of the land surrounding Yat Sing Temple itself was under way. The 2nd plaintiff contradicted himself as to the precise date in January when the defendant came, for he said first that it was on the 15th and that one or two days later the defendant wrote out the document in question, but when the document was produced he said that the defendant's visit was a couple of days before the 15th, the 15th being the date on the document. Neither version is consistent with the defendant's story, for he says that the 15th January is his birthday and that he spent the day with his friends in Kowloon. The 2nd plaintiff asserts that on the occasion of the first of the two alleged visits he and the defendant discussed the possibility of moving the old Yat Shing Temple (which had not been demolished) to another part of the development site. By this time the 2nd plaintiff had discovered that the defendant did not intend to use the name Yat Shing for the new temple but was going to call it Yin Hing and this apparently was a change to which he took exception on ideological grounds. There had, he said, been a fierce argument over it in 1965. As I understand him the discussion in January 1966 was an attempt to compromise: if the defendant would rebuild the existing Yat Shing Temple stone by stone on another part of the site he would not object to the defendant's carrying on with his planned re-development of Lot 319 or to the use of the name Yin Hing for the whole of the entirely new development. In addition to the 2nd plaintiff's being thus able to continue to use the name Yat Shing for his own re-constructed building he was to be paid $60 a month as maintenance money for himself and the 1st plaintiff. It will be remembered that under the alleged oral agreement of December 1962 the maintenance of $50 a month was to cease as soon as re-development was complete, for then the defendant would undertake to supply the needs of the two plaintiffs directly. According to the 2nd plaintiff the proposed agreement was to be in writing and at the request of the defendant he promised to prepare a draft. When the defendant returned for his second visit, the 2nd plaintiff says, the draft was ready and the defendant made a copy from the draft. It was then agreed that the document should be signed before a solicitor in Hong Kong but again the 2nd plaintiff contradicted himself for he says that the defendant actually signed the new copy at Lantao on the day he made it. There are in evidence no less than three different copies of the text of this alleged agreement and, as I understand it, they came into existence in this way. The 2nd plaintiff originally made a rough draft. This is not before the court. The defendant made a copy at Lantao and this is Ex.H, the document relied upon. In accordance with the intention of both parties, the 2nd plaintiff says, he consulted a solicitor. On the solicitor's advice he made another copy, which is Ex.K. There is a dispute as to the events surrounding the making of that document although all are agreed as to the place where it was written and as to the time. The 2nd plaintiff says he went to the premises of the Chinese Young Buddhists' Association, of which the defendant is the Chairman of the Board, and there wrote out the document, although almost in the same breath he said he was not sure it was in his own handwriting. According to him the defendant was present when this copy and a carbon copy were made and, just as they were finishing, Mrs. Li arrived: she looked at the papers, suddenly snatched them both away from the 2nd plaintiff and started to scold him: thereupon he immediately left the premises. I have spoken of three "copies" of the text but that is not entirely accurate because Ex.K was not copied at all: the 2nd plaintiff says that although he had Ex.H in his pocket at the time he re-wrote it from memory. This has resulted in some slight, though, I think, unimportant, differences. It was at one point suggested that this document was signed by the 2nd plaintiff, although I do not think it was ever argued that it could be a counterpart: it ends with the words "identity card of Kuo Yuen '092707'". If it be material I find that these words were not written in token of an intention to be bound by the contents of the document: this was at most a document which the 2nd plaintiff hoped both parties would sign. The defendant alleges that this was the original draft agreement, that he arrived at the C.Y.B.A. to find the 2nd plaintiff just finishing it and that the 2nd plaintiff asked him to sign it: he refused and a quarrel ensued, after which the 2nd plaintiff left, taking with him one copy and leaving Ex.K behind on the desk. The defendant's case is that the 2nd plaintiff then forged Ex.H and that the first he (the defendant) knew of Ex.H was on the 7th June 1968 when the 2nd plaintiff sent him a photograph of it. This photograph is Ex.S. Mrs. Li says that she arrived at the C.Y.B.A. on the 2nd February 1966 to find a most undignified argument going on between the 2nd plaintiff and the defendant: she remonstrated with them and the 2nd plaintiff tried to get her to persuade the defendant to sign Ex.K: she refused and eventually accused the 2nd plaintiff of trying to force the defendant to sign the paper as his price for not holding up the demolition of Yat Shing and the completion of the re-development: the 2nd plaintiff then left in a violent temper, leaving the paper (Ex.K) on the desk. I am satisfied that Mrs. Li's version is correct and that leaves me with grave doubts about the authenticity of Ex.H. I do not believe it was in existence on the 7th February and, as I have already said, it is signed by only one of the parties to the alleged agreement.

10. It is, perhaps, not wrong that I should say I have no doubt that at one stage the 2nd plaintiff was led to understand that he and his disciple would be accommodated in the new temple. Indeed, the defendant himself said that he promised to let the plaintiffs each have one of the rooms in the big new temple he was going to build, and in his closing address counsel for the defendant appeared to concede that there was a binding agreement. The plaintiffs say first that these promises were the consideration for the conveyance itself: counsel said that they were "part of the agreement", but then he tended, I think, to argue that they were the consideration of a collateral contract. If they were the consideration for the conveyance itself it seems to me that the proper course was for the plaintiffs to seek rectification of the conveyance on the ground that it does not state the true consideration. The effect of the execution of a conveyance is generally to fulfil the contract to convey, and that being so no action will lie upon the contract to convey, and that being so no action will lie upon the contract. It is not suggested, however, that there has been any fraud which would entitle the plaintiffs to rescission or any mutual mistake in the drawing up of the conveyance which would entitle them to rectification: nor has either of these remedies been claimed. I may add that on the evidence before me I do not think their allegation is true. Much evidence has been given about the circumstances in which the deed of conveyance came to be executed. The plaintiffs declared that no money passed from the defendant, while the defendant and his witness say that $3,000 was paid as recited in the deed. While I do not by any means accept all that the defendant has told me it would need very strong evidence to convince me that this was yet another occasion on which a false recital was included because there was no printed form of conveyance other than a form of conveyance on sale. I shall not refer to the evidence in detail. The defendant says he paid the money in the District Office while the parties were waiting to execute the deed. No estoppel has been pleaded. I am not prepared to say that Lee Yung was lying when he spoke of a conversation during which the defendant told him that the 2nd plaintiff had given and not sold the land. It would have been an impertinence for him to ask in the first place, let alone to demand confirmation from both sides, but it is possible that curiosity of a local inhabitant might have overcome good manners. Nevertheless even if the evidence be true the answer to the question could bear little weight. It is notorious that the Chinese are as a rule loath to reveal the true nature of their affairs and if the rest of Mr. Lee's evidence is true a very good reason was given for the parties' not openly admitting that the land was being sold: his gratuitous comment that after the defendant's answer "they all smiled" might be interpreted as a polite indication that everyone present knew the answer was not true. Be that as it may, Mrs. Li confirms that the money was paid. On a balance of probabilities I believe that the money was paid. I think the truth probably is that the 2nd plaintiff assumed that the name of the temple would not be changed and he relied upon the word of the defendant that the future of both plaintiffs would be provided for. I am, however, no more satisfied that the second agreement alleged in the Statement of Claim was concluded than I am that the first was concluded. I suspect that the 2nd plaintiff was upset to learn of the change of name, that he became more dissatisfied when he saw the type of accommodation which was going up and that he then tried to force the hand of the defendant and to get him to sign Ex.K. The 2nd plaintiff says he first knew of the change of name in the 10th moon of 1965 and I believe him. It was at the same time that the 2nd plaintiff discovered what sort of accommodation was likely to be available to him. I do not believe the defendant when he says a change of name was mentioned as early as the 1st moon 1963, although I do not doubt that from the first it was understood that the new temple would be dedicated to Tam Hui Fat Sze. The plaintiffs have chosen to base their action upon two agreements which they have not been able to prove and the action must be dismissed.

11. I turn, therefore, to the counterclaim. The defendant relies upon the conveyance on sale dated 13th February 1963 by which the 1st plaintiff purported to sell Lot 319 to him. The plaintiffs deny any agreement to sell this land, and further, although they admit due execution of the conveyance, they allege that the price of $3,000 has not been paid. Their contention appears to be that the purported conveyance was of no effect and that, even if it be admitted (as they do admit) that the defendant has given notice to quit, he had no right to possession of the land and they were entitled to be in possession, the 1st plaintiff as owner and the 2nd plaintiff as her licensee. I think it is also suggested that by reason of the collateral agreement by the defendant to let the plaintiffs each have one of the rooms in the big new temple and of his failure to provide such accommodation (or the promised maintenance of $50 a month) the plaintiffs were entitled to remain in the old temple. This, as we have seen, was not pleaded and I do not think that it is a correct approach. It seems to me that the proper course was for the plaintiffs to claim specific performance of the admitted agreement: it was clearly a factor which induced the 1st plaintiff to convey the land, for of one thing I am absolutely sure, that the plaintiffs never contemplated that they were to leave the land altogether. Nor do I see how the plaintiffs can challenge the validity of the conveyance, although counsel submitted that if I were to find the defendant was in breach of contract there could be no question of my giving him possession. The sale was duly completed, even if the 1st plaintiff might have refused to complete on the ground of non-payment. By its very nature a collateral contract is separate and distinct from the main contract and each can be enforced separately. It may be that if the plaintiffs had pleaded a breach of the collateral contract then it might have been proper to refuse specific performance of the main contract, but no authority has been cited to me for refusing a legal remedy and they have not pleaded the particular collateral contract which I find to have been made, while the remedy the defendant is seeking is a legal and not an equitable remedy. As I say, the main contract has been completed by execution of a conveyance and the title has passed. Even if I be wrong in finding that the price of $3,000 mentioned in the deed has been paid there is no claim for the purchase price nor would the failure to pay render the conveyance ineffective. The plaintiffs do not dispute that there was an intention to convey the land and I cannot see that anything they have alleged invalidates the conveyance. In my judgment there is no defence to the counterclaim for possession.

12. The defendant claims damages but has given no evidence which would enable me to quantify his damage. He is entitled to nominal damages for trespass, which I assess at $40.

13. It remains to decide what is the precise form of the order I should make and I should like to hear counsel upon this. I made it very clear during the trial that I considered this was a case which ought to have been settled and I hope that the parties will now see the futility of the proceedings. Above all I am anxious that further proceedings should be avoided.

11th September 1968.

Representation:

Mr. Martin Lee (Woo & Kwan) for the Plaintiffs

Mr. Robert Wei (Philip Wong) for the Defendant.