Terry Ying Ting Cheng v. Sieh Ni and Others

HCA009061/1991

ACTION NO 9061 OF 1991

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: ROGERS, J.

Date of judgment: 16 February 1995

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J U D G M E N T

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1. Yes. I don't think I need trouble you. I think in this action, the Plaintiff claims various declarations in respect of land in the New Territories. Briefly they may be summarised as claims that the Plaintiff should be the owner of a number of lots of land in the New Territories.

2. The Plaintiff avers in his statement of claim in paragraph 1 that he became the owner of the lots, which are set out therein by 7 conveyances which are particularised. And he says in paragraph 2 of the statement of claim that as a result of a land search, it came to his knowledge that the various plots of land had been assigned out, and they are set out in paragraph 2 of the statement of claim. They were first assigned to the 1st Defendant from whom -- apparently being Plaintiff first bought the land, and then from the 1st Defendant, there was an Agreement of Purchase and Sale to the 2nd Defendant and the assignments to the 3rd Defendant, that the land that was purportedly assigned to the 3rd Defendant was subject to the Deed of Surrender, he is partner of, back from 1989.

3. The 1st and 3rd Defendants have not appeared. The 2nd Defendant is represented by Mr CHAN today. Now it would seem that from the evidence - and I'll take it in this order because I think it is sensible in this case to do so - it would seem from the evidence of Mr LEUNG, who is the Senior Chemist and Head of the Questioned Documents Section of the Forensic Science Division of the Government Laboratory, who has examined what appeared to be the control signatures dating from 1981 of Plaintiff against the documents which are relevant in this case. They, first of all, start with the declarations of lost title deeds, followed by the conveyances to the 1st Defendant, that the signatures on those documents which purported to be that of the Plaintiff are not the Plaintiff's signatures.

4. I've looked at the photocopies of those signatures and compared with the points which have been made by Mr LEUNG in his evidence and examined the copies of the control, and it seems to me that the points that were made by Mr LEUNG are fair points. They are fairly obvious points once they're pointed out, and the more I looked at the alleged forgeries, the more they seemed to me to be quite clearly not the signature of the Plaintiff.

5. Now the history of this action, it's not necessary to go into any great depth but it did come on before -- it was first called on before Mr Justice LIU on 16 May last year. On that occasion, the 2nd Defendant, who again was the only defendant who was represented, asked for an adjournment because it was thought that the 1st Defendant might be found and pursuaded to come and give evidence.

6. That adjournment was allowed but it was allowed on condition that the evidence was taken from the Plaintiff. That was duly done and he was cross-examined and I have the transcript of that evidence. Mr CHAN QC on behalf of the 2nd Defendant has very properly and carefully taken me through that and it does make very odd reading. I can suppose the first point that -- it wasn't the first point made by Mr CHAN but the first point that anybody would pick up would be that the Plaintiff seemed to be even confused about the month of the year in which he was giving evidence.

7. Now I'm told that the Plaintiff is 75 years old. And of course the difficulty that I'm in is that I haven't been able to see the Plaintiff giving evidence, I don't know whether he was confused. But it's very likely that he's reached the stage in life where he can easily become confused, maybe that being in court makes him so, I don't know. If that wasn't so, obviously his evidence is a bit odd and I do approach his evidence with a great deal of caution.

8. Now in respect of the conveyance documents, I am told ...(inaudible)... the Plaintiff was consistent that the signatures on the purported conveyance were not the Plaintiff's signatures. But in respect of the declaration of lost deeds, it seems that the Plaintiff did say that there were his signatures, he didn't seem to say that they were his signatures. But I did notice in re-examination - and it is a part of the re-examination which again Mr CHAN rightly criticised as a bordering on cross-examination rather than re-examination - I did notice that the Plaintiff was saying this, that the signatures weren't his and they certainly weren't signed in Canada where they were purported to be signed. And he said, "Look, I never signed that in Canada on the date when it purported to be signed". Now it's quite possible, and the reason I am not excluding that evidence is this, it seems to be quite possible that what the Plaintiff was really saying is, "Look, I never went to Canada and I couldn't have signed it". And what he meant to say was that "this couldn't have been my signature" but because of translation, because of confusion, perhaps because by that stage he was getting tired and I know not, he was expressing himself extremely badly. And again I have to make due allowance of the fact that I haven't seen him in the witness box.

9. And so although in other circumstances, if there were evidence -- if there were not supporting evidence which supported the main drift of the Plaintiff's own evidence, I might have to be very much more cautious in accepting this witness's evidence without the benefit of seeing him in the witness box. In this case I see no difficulty in accepting that the conveyances were not relevant conveyances, which are referred to in the statement of claim, were not executed by the Plaintiff. And in that case, it seems to me that the Plaintiff is entitled to the relief which he seeks in this action.

Representation:

Mr Alan K K LEONG (Robert W H Wang & Co) for Plaintiff

Mr Edward CHAN QC & Rimsky YUEN (John Ku, Tan & Ho) for 2nd Defendant

1st & 3rd Defendant in persons (absent)