Leung Sui Ching v. The Official Administrator

HCA000301/1950

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 301 OF 1950

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Coram: Huggins, J.

Date of Judgment: 13 November 1969

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JUDGMENT

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1. This is an action brought under the Land Transactions (Enemy Occupation) Ordinance in relation to property situate at and known as 168 Queen's Road West, Hong Kong. The action was instituted on 31st May 1950 and came on for trial on 12th November 1969. Entry of appearance was made on 24th August 1950 and nothing further was done until 1st August 1968 in pursuance of the action. Whatever may be the explanation of the delay one cannot but say that this is about as unsatisfactory a situation as one could have and the delay necessarily means that the court has been deprived of the assistance of witnesses who can speak with some semblance of recollection of the events to which they are asked to speak.

2. The actual events to which they have been asked to speak took place as early as 1943. The plaintiff alleges that in 1943 he agreed with a lady named AU-YEUNG Ma-shi to purchase these premises. It is said that there was a written agreement but that agreement is not now before the court. Before any assignment could be executed AU-YEUNG Ma-shi is said to have died, leaving a husband AU-YEUNG Tze-wan. I am told, and I accept, that during the Japanese occupation of Hong Kong there was no procedure for obtaining probate or letters of administration. In the circumstances the only course open to the purchaser of this property was to institute proceedings for specific performance against the person who would under our law be the executor or administrator, and I am told that that is precisely what was done and that there were proceedings in 1944 between the plaintiff and the husband AU-YEUNG Tze-wan. There was put before me a document purporting to be the judgment of the Japanese judge in those proceedings. However, it is now agreed that the document is not in such form that it is proper for me to look at it and, although it was not objected to when first put before me, it has now formally been objected to and I must uphold the objection. What does appear is that, at a date within two months of the proceedings which I accept did take place, a document was executed. Indeed two documents were executed and I understand that this was the normal practice in those days. The authorities, being Japanese, naturally required that the substance of any formal document should be in the Japanese language and Ex. B is what purports to be a formal assignment executed by the husband AU-YEUNG Tze-wan and the purchaser, the present plaintiff. The second document is a document which is wholly in Chinese. It is in almost identical terms when translated into English and the position seems to be that the Japanese provided two forms for completion when there was a purchase and sale of land, one which was in Chinese and then a formal translation of the Chinese form into Japanese. Both these would be completed and duly executed and that accounts for these two similar documents.

3. If Ex. B, the formal assignment, was executed by AU-YEUNG Tze-wan and the plaintiff, then it seems to me the plaintiff is entitled to succeed in the present case. I am not concerned with the agreement which is alleged to have been executed by AU-YEUNG Ma-shi because the agreement was, if this evidence is correct, superseded by the formal assignment. Not unnaturally no one is able to remember clearly what happened at the time of the execution of this document. The signature of the plaintiff has, however, been identified. The solicitor's clerk (now a solicitor) who prepared these documents has said that he prepared them but that he himself cannot clearly recollect the execution. Subsequently this document was registered in the Land Registry. It was also registered with the Japanese authorities and there have been produced to me various Japanese documents. These, however, I do not think carry the matter very much further because I have no evidence as to whether they were ever acknowledged or agreed by AU-YEUNG Tze-wan. I am told, and I accept, that after execution of this assignment the sitting tenant paid rent to the purchaser. He paid rent to the purchaser until 1947 - and not until the date indicated in the statement of claim. In 1947, acting upon advice, the purchaser stopped collecting rent in respect of the premises. About that time - possibly within about 12 months of the date when rent was no longer collected - instructions were given by the purchaser (the plaintiff) to solicitors to have the assignment regularized in accordance with the law which came into force after the liberation of Hong Kong. It was as a result of those instructions that some two years later the present action was instituted.

4. As I understand the position the only question which I have to answer is whether the document, Ex. B, is a duly executed Japanese assignment. All I can say upon this subject is that there is no evidence at all to the contrary and I accept the evidence that there was an agreement. I accept the evidence that the wife, AU-YEUNG Ma-shi, died and that there were proceedings in the Japanese court. I accept that thereafter the plaintiff did execute this document and I see no reason to believe that the person who executed this assignment was any other than the person who is alleged to have signed it, AU-YEUNG Tze-wan. If it were not, it would be strange that the tenants have paid rent. It would be strange that this document was registered and allowed to remain on the registers (both the Land Register and the Japanese Registers) and unless, as I understood it was suggested at one stage, there were some duress involved in the execution of this document it seems to me that I must make the order asked.

5. On the evidence before me - admittedly not very strong evidence after nearly 25 years - I think it is open to me to pass, and that I should pass, judgment in favour of the plaintiff. I should have said that the present defendant, the Official Administrator, was joined as a result of the death of the husband, AU-YEUNG Tze-wan. This substitution was made in 1968 by which time the proceedings were not only stale but were almost stinking. It is not surprising that the Official Administrator saw fit to defend the proceedings in order to satisfy himself that the execution of this document was sufficiently proved for him to act upon it.

6. As I say, there will be judgment for the plaintiff. I am asked to make a formal order that the costs of the Official Administrator be paid by the plaintiff on a solicitor and client basis in pursuance of an indemnity which has already been given. Counsel for the plaintiffs agrees that this should be done. The order is made accordingly.

13th November, 1969.