Tse Cheong Man and Another v. Attorney General and Others

HCA003212/1981

IN THE HIGH COURT OF JUSTICE

BETWEEN

Coram: Hon. Mantell J.

Date of Hearing: 14th May, 1984.

Date of Delivery of Judgment: 14th May, 1984.

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JUDGMENT

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1. The two plaintiffs are brothers. On 4th February 1922, their father bought some land at Kai Ham Village, Sai Kung, New Territories. At that time, the plaintiffs were eight and three years old respectively. The land bought was added to that which the plaintiffs' father held already and was farmed along with it by him and his two sons until he died without having made a will on 15th October 1944. Since that date the two brothers have continued to farm the lard. Now, their title to it has been called in question in the following circumstances. The original owners and vendors of the land were Shing Li Kiu and Shing Shui Hing. In 1953, one Shing Kwai succeeded Shing Li Kiu and one Shing Yan Cheung succeeded Shing Shui Hing. Both Shing Kwai and Shing Yan Cheung have died and the two defendants who appear today, Mr. Lau Tze Tim and Madam Shing Ho Lin are really here in a representative capacity, Mr. Lau as personal representative of Shing Kwai and Madam Shing as trustee for her son Shing Yan Cheung who was a minor but alive when this action began. In 1922 there was a conveyance, the deed of which survives. Although the memorial of that conveyance was registered and has remained on the records of the District Land office ever since, no step was taken at the District Land Office to delete the names of the original vendors. So Shing Li Kiu and Shing Shui Hing remained on the records as owners and in 1953, Shing Kwai and Shing Yan Cheung were registered as successors to those two vendors. They were also registered as owners of the land. Now, Tse Yau Wai was survived on his death by his widow, the mother of the two plaintiffs. She died in 1962 without malting a will and upon her death, the two plaintiffs applied for registration by way of succession to their mother. The District Land Office declined to register them in respect of the land in question because, of course, the 2nd and 4th defendants were already registered as owners. Hence, after a considerable interval, these proceedings were commenced.

2. To begin with, relief by way of rectification of the records at the District Land Office was sought against the Attorney general as a necessary party. For some reason, which is not entirely clear, the claim against the Crown was withdrawn. Rectification is no longer asked for though I am given to understand that the District Land Office will abide by any order or declaration which I see fit to make.

3. There really is only one question to be answered in this case. Am I satisfied that the land was sold to the plaintiffs' father in 1922? Because if I am, the plaintiffs are entitled to the declaration which they seek. Neither of the two defendants who has appeared unrepresented has, attempted to challenge or contradict any evidence which I have had put before me and which came in the first place from the younger of the two brothers. Tse Kang who is now 65 years of age, told me that the land had been farmed by, first of all, his father, he and his brother and then, since 1944, by he and his brother for as long as he can remember. His elder brother who is now 72 or 73 years of age said the same thing and his memory goes hack even farther into the past. It almost certainly does mean, if I accept the evidence as I do, that the land was being farmed by Tse Yau Wai from about 1922. But, conclusively, as I find, of the fact that the land was sold to St Yau Wai is the Deed of Conveyance. This Deed of Conveyance was given with other documents shortly before his death by Tse Yau Wai, as I find on. the evidence, to his wife and by that lady at some time in 1962 to the 1st plaintiff, and it is he who has produced it to me. I accept that it qualifies under the Evidence ordinance and that it is an authentic document. It indicates to my complete satisfaction that Tse Yau Wai was the purchaser of this land in 1922. It does not stand alone as documentary proof because it has been possible to produce rent receipts for the crown rent paid for the whole period of 1922 up to 1983 and also officers of the District Land Office have produced an index of memorials of assignments and conveyances which includes the memorial number which appears on the memorial of conveyance itself. So it appears that what caused all this uncertainty and this expensive litigation was a mistake by some unknown and in all probability long dead person in the District Land Office in 1922. On the evidence which I have heard, I am satisfied that the plaintiffs have made out their case at least to the extent that they are entitled to a declaration in the terms of paragraph 9(3) of their Statement of Claim and I make a declaration in those terms accordingly.

Representation:

Thomas Lai instructed by Rowdget W. Young & Co. for plaintiffs.

2nd Defendant - in person - Lau Tze Tim.

3rd Defendant - in person - Ho Lin.