Leung Yan Tim v. Ho Tak Man and Another

Headnote

Conveyancing - Vendor and Purchaser summons - Discrepancies in signatures between 1976 and 1987 assignments - Same Identity Card Number in both - copy of cards kept on file - whether 'proper conveyancing evidence'.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

ACTION NO.3752 OF 1990

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BETWEEN

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Coram: Kaplan J.

Date of Hearing: 6 December 1990

Date of Judgment: 6 December 1990

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JUDGMENT

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1. This is a Vendor and Purchaser summons dated 29th November 1990 brought under the provisions of Section 12 of the Conveyancing and Property Ordinance, Cap. 219.

2. I heard argument on 6th December 1990 and decided that I would give the relief sought. Counsel then produced an order which I approved. I will set out this order at the end of this Judgment. I said I would reduce my reasons into writing which I now do.

3. The Plaintiff is the registered owner of the property. By an agreement dated 2nd October 1990, the Plaintiff agreed to sell the property to the Defendants. After the agreement was signed, the solicitors for the Defendants raised a requisition in respect of apparent discrepancies in the signatures of Chan Koon Luen and Su King Sim in Assignments under Memorials 1278928 (dated 28^th May 1976) and 3413032 (dated 25th May 1987) both being part of the title deeds to the property.

4. By the 1976 Assignment the property was assigned to Chan Koon Luen and Su King Sim.

5. By the 1987 Assignment they assigned the property to Leung Yan Tim, the Plaintiff in this application.

6. The relevant part of the signature page of the 1976 Assignment states:

"SIGNED, SEALED AND DELIVERED by the Purchasers (holders of Hong Kong Identity Cards Nos. XXXXXXX and XXXXXXX) in the presence of;"

7. Opposite this, both Purchasers signed. One is easily readable as 'Chan' and the other is illegible. These signatures were appended in the presence of K.L. Heung, a solicitor.

8. The 1987 Assignment states on the signature page:

"SIGNED, SEALED AND DELIVERED by the Vendor (holders of Hong Kong Identity Cards XXXXXXX and XXXXXXX) in the presence of;"

9. Opposite this, both Vendors signed. Chan signed 'Chan Koon Luen'. The Chan appears to be identical to the 'Chan' on the 1976 Assignment. However this time 'Koon Luen' also appears. 'Su King Sim' appears legibly. These signatures were appended in the presence of E.J. Cruz, a solicitor's clerk. The clerk's signature is verified by a Hong Kong solicitor.

10. Once the alleged discrepancy was mentioned, the matter was taken up with John Ip & Co. who acted for the Vendors in the 1987 transaction. By letter dated 4th September 1990 they stated that Mr. Cruz had emigrated to Canada more than two years previously. They further stated that they were attempting to trace the file.

11. John Ip & Co. wrote again on 6th September 1990 having located the file. They stated that the Vendors were identified by production of their Hong Kong Identity Cards the numbers of which matched precisely with those appearing on the 1976 Assignment. Photocopies of these Identity Cards were on file and copies were supplied to the Defendants' solicitor.

12. In both the 1976 and 1987 Assignments the Chinese characters representing Chan Koon Luen and Su King Sim appeared in brackets after the anglicized version of their names. At one stage a suggestion was made that there were discrepancies in the Chinese characters as between the two documents. John Ip & Co. dealt with this in the letter dated 16th October 1990 and explained that one version was a simplified form of a more complex version. Neither Counsel before me raised any point on the Chinese characters and thus I shall treat them as representing the same names in both Assignments.

13. The whereabouts of the two signatories are unknown and there is thus no possibility of any statutory declaration.

14. What there is a legal position? It is necessary for the Plaintiff to produce to the Defendants reasonable proof that the signatories calling themselves 'Chan Koon Luen' and 'Su King Sim' in the 1976 Assignment are the same persons as the signatories calling themselves 'Chan Koon Luen' and 'Su king Sim' in the 1987 Assignment.

15. How does the Plaintiff do this? The answer is that the Plaintiff has to produce 'proper conveyancing evidence'. Circumstantial evidence is not sufficient. (see Lam Kin I v. Tsui Ming Yee - M.P. 361 in 1989 - 24th February 1989 unreported Godfrey J.)

16. In Lee Yeung Chun and Tsui Yuk Ling v. Ng Choi Chun (M.P. 3349 in 1989 - 8th January 1990 unreported) Godfrey J. had before him a similar problem. By an assignment in 1976 tae property in question was assigned to Joe Edward Fook and Monie Fook. Mr Fook was described as a holder of United States Passport 662026. He signed Joe Edward Fook. Monie Fook signed as such and was described as a holder of United States Passport F2177853.

17. In 1987 the Fooks assigned the property. On this occasion, Mr Fook was described as having been identified by United States Passport G868549. This was a different number to the earlier Passport number. This time he signed 'Joe E. Fook'. He also signed for Monie Fook as her attorney. He did this twice. Once as 'Joe E. Fook' and once as 'Joe Edward Fook'. A power of attorney authorized him to sign and on this document Monie Fook signed and was identified by production of United States Passport G868548. This was a slightly different number to that referred to in the 1976 assignment.

18. Godfrey J. remarked that all of these documents of title were produced from proper custody by the Vendor to the Purchasers. He then added this:

"All of these are to be assumed for conveyancing purposes to have been duly executed unless there is anything which raises a reasonable doubt as to whether that assumption can safely be made."

19. Having asked himself whether such a reasonable doubt had been raised, the learned Judge answered the question in the negative. He added this:

"I see no reason at all to doubt that each instrument was duly executed by the person or persons by whom it appears to have been executed. Nothing in the discrepancy between the Passport numbers (after a lapse of eleven years) nor in Joe's various signatures (none of which appeared to be in anything but the same hand) raises any reasonable doubt about the due execution of any of these instruments. No reasonable person would entertain any suspicion as to their authenticity."

20. Applying these principles to the facts of the case before me, it seems clear to me that there is more than ample evidence to show that each instrument was duly executed by the persons by whom it appears to have been executed. One has the following supportive facts. Firstly, the Chinese characters were agreed to be referable to the same names. Secondly, in both assignments the Hong Kong Identity Cards were produced and details recorded. In the 1987 Assignment the solicitors kept copies of the Identity Cards and they have been produced. The signature 'Chan' appears identical in both Assignments. The fact that Chan later signed a fuller version of his name does not in my view detract from the authenticity of the signature. It is common ground that people do change their signatures especially as between using their full name or just their surname. As to the signature of Su King Sim, it is true that it appears to be a different signature between the 1976 and 1987 Assignments. In 11 years it is possible that the lady changed her signature. She was only 25 in 1976. However, the Identity Card is the same and was produced and ties up with the earlier. document and the Chinese character is the same. It seems to me to stretch credulity too far to suppose that the two persons who signed in 1976 both had their Identity Cards stolen or forged and that these were used by those assigning in 1987. It is, of course, to be noted that the Identity Card does contain photographs and no doubt the photographs tied up with the people who signed the documents in 1987. Godfrey J. in the case above-cited was satisfied that the passport, even though their numbers were not identical, was very strong evidence. It seems to me that the Identity Card in. this case, where the numbers tied up precisely, is overwhelming evidence and it was this which led me to indicate at the conclusion of the hearing that I proposed to make the declarations which were being sought. I should add that in the 1976 Assignment, the address of Chan Koon Luen and Su King Sim is shown as flat C, 5th floor, Kin Man Building, 66-74 Castle Peak Road, Kowloon and the same address is given for these two persons in the 1987 Assignment.

21. For the reasons which I have set out above, I am satisfied that the requisition raised by the Defendants has been sufficiently answered by a letter dated 12th October 1990 from the Plaintiff's solicitor. Counsel agreed that on the basis I was satisfied, the following declarations were appropriate to be made and I shall make them.

22. IT IS DECLARED THAT:-

(1) The requisition raised by the Defendant in a letter dated 8th October 1990 from Messrs Norman Yung & Co., solicitors for the Defendants to Messrs C. W. Yuen & Co., solicitors for the Plaintiff has been sufficiently answered by a letter dated 12th October 1990 from Messrs C.W. Yuen and Co.;

(2) The discrepancies in the signatures of Chan Koon Luen and Su King Sim in an assignment dated 20th May 1976 registered as Memorial no. 1278928 in comparison to those in an Assignment dated 25th May 1987 registered as Memorial no. 3412032 is not a defect in the title to the property.

23. It was sensibly agreed between the parties that there should be no orders to costs.

Representation:

Mr Johnson Lam instructed by C.W. Yuen & Co. for Plaintiff

Mr Cliff Mok instructed by Norman Yung & Co. for Defendants