Lee Pak Lam and Another v. Shek Fung Kiu

HCMP 2157/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2157 OF 2006

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BETWEEN

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Before: Deputy High Court Judge L. Chan in Court

Date of Hearing: 25 May 2007

Date of Judgment: 31 May 2007

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J U D G M E N T

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1.This is a vendor and purchaser summons taken out by the purchasers.  It involved the title of a unit in Aberdeen Centre, Aberdeen, Hong Kong.  The purchase price was $1,660,000 and 10% of it had been paid as a deposit.  The formal sale and purchase agreement dated 22 September 2006 required the defendant vendor to prove and give a good title.  Completion was scheduled on 17 October 2006, but it did not take place, because the plaintiffs were not satisfied with the defendant’s answers to one of their requisitions.  This requisition concerned one assignment and one mortgage both dated 15 August 1991 (“the 1991 documents”) on the one hand and one formal sale and purchase agreement dated 16 January 1994 and an assignment dated 28 January 1994 (“the 1994 documents”) on the other.

2.The assignees and mortgagors named in the 1991 documents were Lo Kwok To (羅國濤) and Woo Choi Chu (胡賽珠).  The vendors and assignors named in the 1994 documents were Lo Kwok To (羅國培) and Woo Choi Chu (胡賽珠).  There was thus a clear discrepancy between the Chinese name of Lo in the 1991 documents and the Chinese name of Lo in the 1994 documents.  It is the task of the defendant vendor to prove beyond reasonable doubt that the Lo Kwok To who executed the 1991 documents was the same Lo Kwok To who executed the 1994 documents. 

3.The difference is in the 3^rd Chinese character of the name of Lo.  In the 1991 documents, the character 濤 was used (which means waves and has the radical of water in the form of three strokes on the left).  In the 1994 documents, the character 培 was used (which means to nurture or cultivate plants or to educate and train men and has the radical of earth on the left).  The plaintiffs’ solicitors raised a requisition on this discrepancy.

4.The defendant’s solicitors proffered a number of answers.  They said in various letters that the English spelling of the name was the same, each of the execution by Lo was attested by a solicitor or a solicitor’s clerk, Lo was identified by the same Hong Kong identity card number in each execution, all the signatures by Lo in the 1991 and 1994 documents look similar to one another and no action has been taken by Lo to recover the property since the execution of the 1994 documents.  They also produced a copy of the Hong Kong identity card of one Lo Kwok To with the Chinese name (羅國濤) and of the same number as recorded in the documents.  The copy has been certified as a true copy by a solicitor on 31 May 1997.  This copy shows that the card was issued on 17 August 1987 by the Commissioner of Registration.  All these are undisputed.

5.The Chinese signatures were signed in Chinese cursive script.  They were all similar to one another.  In this script, some of the strokes have been modified in a cursive manner and some abbreviated.  However, it is clear that there are the three strokes representing the radical of water on the left hand side of the 3^rd character of all the signatures.  The radical of earth does not appear in any of them.

6.I also point out that the name of 羅國培 as written in the 1994 documents was not written on the execution pages.  They were written on other pages.  In the Formal Sale and Purchase Agreement, it was written in the 1^st schedule on page 12 whilst the execution of this document was on page 17.  For the assignment, it was written on the front page and the execution was on page 6.

7.Mr Man, counsel for the plaintiffs, referred me to two cases.  In Au Fung Yee v Cheng Yick Keung, HCMP 3624/1996, one Mr Kam Chung purchased a property by an assignment dated 22 September 1965.  His name in Chinese was written as 金聰.  He made a power of attorney on 27 July 1976 to authorize his daughter to sell the property for him and she did so pursuant to it.  His Chinese name was written as 金冲 in the power.  There was no reference to any document of identity to link up the identity of the two persons who executed the assignment and the power.  The signatures in the two documents were also different.

8.Cheung J said at p.5 of the judgment that:

“The difference in the style of the signature may well be due to the passage of time, namely 14 years but there is no evidence that it is so.  … There is just no evidence that “金冲” and “金聰” was the same person but using a different second character for his name.”

The learned Judge thus found that the vendor had not proved a good title to the purchaser.

9.In Lau Siu Wing v Wong Hong & Ors, HCA 10779/1998, one “Li Fuk Chuen” and one Li Sz Fung succeeded to the suit property by a succession to property memorial No. 98258.  In a later succession to property memorial No. 160150, Li Sz Fung succeeded to ½ share of the suite property from one “Li Fuk Tsun”.  There was no similar signatures or linkage by the number of documents of identity in the two memorials.  Chung J regarded this a borderline case, but because of the high standard of proof required of a vendor, the learned Judge was not satisfied beyond reasonable doubt that the two persons were in fact the same person.

10.Mr Yau, counsel for the defendant, also referred me to a number of cases.  In Free Focus Ltd v Fels China Ltd [1989] 2 HKC 568, an assignment in 1976 and a later confirmatory assignment were made by one Howard Lin.  The signatures were closely similar, the addresses and the capacity as the administrator of the estate of a predecessor in title were the same.  The two documents were executed before different notaries public in the United States.  However, the Canadian passports of Howard Lin as referred to in the two documents were wholly different.  Deputy Judge Saied (as he then was) held that the different passport numbers were insignificant and at most indicated that the respective notaries were satisfied of the identity of the signatories from passports bearing different numbers.

11.In Tong Yuen King & Anr v Roberto Siu Lui, HCMP2949/1995, an assignment dated 10 September 1988 was executed by one Miss Chan as the purchaser.  This assignment was lost.  According to a copy of this lost assignment, the purchaser therein was described as “Chan Ieieen”.  The property was later sold by an attorney pursuant to a power of attorney given by “Chan Ieleen” in Singapore.  The assignment was executed before a Hong Kong solicitor and the power of attorney was executed before a Singaporean lawyer.  Both documents bore the same Hong Kong identity card number for Miss Chan.  The Commissioner of Registration of Hong Kong issued a letter confirming that Miss Chan Ieleen was the holder of a Hong Kong identity card of that number.  There was some evidence that the solicitor handling the purchase of the property for Miss Chan had attempted to re-register the assignment before it was lost and the purpose of the attempt was to correct the name from “Chan Ieieen” to “Chan Ieleen”.  On such evidence, Yam J concluded that there was no risk of a successful challenge to the identity of Miss Chan.

12.In Leung Yau Tim v Ho Tak Man & Anr, HCMP 3752/1990, the purchasers as named in a 1976 assignment had the same names as the vendors in the subsequent 1987 assignment.  The Hong Kong identity card numbers were also the same.  The 1^st document was executed before a solicitor and the 2^nd one was before a solicitor’s clerk.  The signatures of the earlier purchasers however did not appear all the same as the latter vendors as most characters were not legible.  Only one surname was legible in both documents and they appeared similar.  Kaplan J said that the vendor before him had to produce proper conveyancing evidence to prove that the purchasers were the vendors.  The solicitors for the vendor referred to the same number of the Hong Kong identity cards.  The learning Judge, after considering all the facts in the case, held that there was more than ample evidence to show that each instrument was duly executed by the persons by whom it appeared to have been executed.

13.In Wong Wai Yi & Ors v Yau Sui Chun Joresa, DCCJ 16194/2001, the name of the purchaser in an assignment was the same as that of the vendor in the subsequent assignment.  The Hong Kong identity card numbers for these two persons as stated in the documents were the same.  The signatures were each composed of three Chinese characters but the middle characters appeared discrepant.  Deputy District Judge S M Sham concluded that they were similar in form as well as in style and there was no material discrepancy which could give rise to doubt as to the identity of the signatories.

14.Mr Man also submitted that before I could hold in favour of the defendant, I should be satisfied beyond reasonable doubt that the different Chinese names written in the 1994 documents were the results of clerical errors.  I am afraid that is not the proper approach.  The proper approach is to be satisfied beyond reasonable doubt that the Lo Kwok To who executed the 1991 documents was the same Lo Kwok To who executed the 1994 documents.

15.I refer to the answers given by the vendor’s solicitors to the plaintiffs’ requisition.  Despite the difference between the character 培and the character 濤, there is ample evidence to show that it was the same Mr Lo who had executed the 1991 and 1994 documents.  The important nexuses are the same English name in all documents, all signatures are similar, the same number of the Hong Kong identity cards, all executions are attested and there was the certified copy of the Hong Kong identity card of Lo Kwok To with the Chinese name羅國濤 and of the same number.

16.Mr Man has also asked me to consider the case of Tsang Bing Kwan Andes v Korea Marvel Co. Ltd [1997] 3 HKC 565 where Le Pichon J (as she then was) held that a foreign legal opinion without reference to the primary facts or the applicable foreign statutes was not enough to prove a change of the name of the foreign vendor company.  However, this case is concerned with a question of fact only.  The opinion of the defendant’s solicitors that the Lo Kwok To who executed the 1991 documents was the same Lo Kwok To who executed the 1994 documents was based on the facts as can be gleaned from the available documents and formed as a matter of common sense.

17.In the light of the discussion above, I am satisfied beyond reasonable doubt that the Lo Kwok To who signed the 1991 documents was the same Lo Kwok To who signed the 1994 documents.  In the premises, I dismiss the plaintiff’s originating summons.

18.The defendant has a counterclaim by way of a counter-notice for orders to be made at the hearing.  I grant the following relief to the defendant on the basis of this counterclaim.

19.Since the defendant has provided proper answers to the only outstanding requisition, I therefore declare that the defendant has proved a good title to the suit property beyond reasonable doubt.  I also declare that the plaintiffs have breached the formal sale and purchase agreement dated 22 September 2006 by not completing the purchase on the scheduled completion date.  I further declare that the defendant was entitled to and did rescind this formal sale and purchase agreement and forfeit the deposit of $166,000.  I further order the plaintiffs to pay the defendant damages to be assessed.  I also make an order nisi that the plaintiffs do pay the defendant the costs of these proceedings.

Mr Bernard Man, instructed by Messrs Terry, Yeung & Lai, for the Plaintiffs

Mr Albert Yau, instructed by Messrs Lau, Chan & Ko, for the Defendant