Chan Ah Lin and Others v. General Wide Ltd

HCMP 713/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 713 OF 2009

----------------------

----------------------

----------------------

Before: High Court Judge To in Court

Dates of Hearing: 10 November 2009 and 10 December 2009

Date of Decision: 10 December 2009

----------------------

D E C I S I O N

----------------------

Background

1.This is a vendor and purchaser summons taken out by the Plaintiffs (“Vendors”) against the Defendant (“Purchaser”) seeking essentially a declaration that a good title to the subject properties sold (“the said Lots”) under a sale and purchase agreement made on 11 March 2008 (“the Agreement”) has been shown in accordance with the Agreement and specific performance of that Agreement.  The said Lots are the Remaining Portion of Lot No. 1292, Remaining Portion of Lot No. 1403 and Lot No. 1475 in Demarcation District (“D.D.”) No. 79.  The contractual completion date was originally fixed within 60 days from the date of the Agreement but was subsequently extended pending determination of the present application which concerned one outstanding requisition relating to Lot Nos. 1292 and 1475.

2.Lot No. 1403 was registered in the names of 陳水嬌, 陳國祿and 陳國壽in the Block Crown Lease of D.D. No. 79.  陳水嬌, 陳國祿and 陳國壽were all brothers and residents of Ping Yeung Tsuen.

3.Lot Nos. 1292, 1306 and 1475, which included the said Lots, were first owned by Sin Shiu Lung Tso(冼兆龍祖).  According to the Conveyance on Sale Memorial No. 5803, the three lots were sold on 28 January 1908 to Chan For Kiu, Chan Kwok Luk and Chan Kwok Shau whose addresses were all stated to be in Ping Yeung Tsuen.

4.On 13 January 1928, the interest of Chan Kwok Shau in the three lots together with another eight lots were succeeded by Chan Wing Hon by Succession to Property Memorial No. 69091.  The succession of the said Lots together with other lots as one package is a significant feature.

5.Then five days later, by a Division of Property Memorial No. 69162 signed by 陳水嬌, 陳國祿, Chan Wing Hon and Chan Wing Wun, all interests in the three lots were assigned to Chan Wing Hon and Chan Wing Wun on 18 January 1928.

6.The interests of Chan Wing Hon and Chan Wing Wun in the three lots were subsequently succeeded by the Plaintiffs who sold them under the Agreement to the Defendant.

The requisitions

7.The first requisition related to the discrepancy in the passport numbers of the 4^th Plaintiff as appearing in numerous title documents of the said Lots.  He was identified in Part I of the First Schedule of the Agreement as well as in the Power of Attorney dated 27 November 2007 as the holder of British Passport No. 10376041.  But he was identified as the holder of British Passport No. 103076041 in the notarization cover of the said Power of Attorney and in the his statutory declaration.  In another statutory declaration dated 20 April 2000 relating to Memorial No. 483751 which was registered in the land search records of the said Lots, he was described as holder of British Passport No. 004443698.  These are material discrepancies in the proof of the identity of the 4^th Plaintiff which the Defendant is entitled to request for clarification.  The Plaintiffs’ solicitors provided a proposed statutory declaration of the 4^th Plaintiff made on 23 May 2008.  But that proposed statutory declaration was rejected by the Defendant’s solicitors as not having been made in Hong Kong as required by the relevant provisions in Part III of the Oaths and Declarations Ordinance, Cap. 11. 

8.However, at the hearing, the parties in their good sense agreed to have an adjournment to allow the Plaintiffs to provide a proper statutory declaration of the 4^th Plaintiff.  One has in due course been produced to the satisfaction of the Defendant’s solicitors.  That requisition has therefore been answered.

9.The other outstanding requisition which the Defendant alleged as being unanswered was raised in items 6(c) and 7 of the Defendant’s solicitors’ letter dated 21 May 2008, which is in the following terms:

“Please produce documentary evidence to show that the said陳水嬌 and the said Chan For Kiu refer to one and the same person as alleged. (There was another requisition as to how Chan Wing Wun acquired his interest in the said properties, which was seemingly answered to the Defendant’s satisfaction.)” 

10.The Plaintiffs’ solicitors answered the requisition as follows in their letter dated 23 May 2008:

“We are given to understand that陳水嬌 (Chan Shiu Kiu), 陳國壽 (Chan Kwok Shau), and 陳國祿 (Chan Kwok Luk) (the “BROTHERS”) are brothershood.  As such, according to the Block Government Lease, the BROTHERs were the co-owners of the following Lot:- Lot Nos. 86, 641, 912, 986, 1006, 1042, 1097, 1403 and 1429 in Demarcation District 79.”

They fortified their answer by referring to the government rent records known as the old “A Book” which showed陳水嬌, 陳國壽, 陳國祿were co-owners of various lots of land in D.D. No. 79 and paid rent for the lots.  They argued that the name “Chan For Kiu” entered in Memorial No. 5803 was a mistake and should have been “陳水嬌”.  They referred to the practice of the then District Office to post notice of succession claims in the village notice-board calling for objections to succession applications and argued that if Chan For Kiu were the true owner of the three lots, he would have objected to the succession application.  They advanced legal argument that even if Chan For Kiu were the true owner, his interest would have been time-barred by limitation.  They also offered to prepare a statutory declaration of the relationship of 陳水嬌, 陳國壽, 陳國祿 and the 5^th Plaintiff and to further elaborate on the old “A Book” which was a government rent and payment record book. 

11.The answer was rejected by the Defendant’s solicitors on the grounds that the Plaintiffs were unable to produce evidence of the old “A Book” and evidence to establish that 陳水嬌 and Chan For Kiu both refer to one and the same person.  They also rejected the Plaintiffs’ proposed statutory declaration as self-serving.

The legal principles

12.Counsel have no dispute about the legal principles applicable to showing good title of land to be sold to a purchaser.  These are trite principles anyway.  A vendor is under a duty to show good title of the land to be sold.  That duty is usually discharged by providing documents of title which show beyond reasonable doubt that the vendor is in possession of the estate and is able to convey it to the purchaser without any blot or possibility of litigation: Re Stirrup’s Contract [1961] 1 WLR 449, 454.  The test is whether the facts and circumstances are so compelling to the mind of the court that the court concludes beyond reasonable doubt that the purchaser will not be at risk of a successful assertion against him of the incumbrance: MEPC Ltd v Christian-Edwards and Others [1981] AC 205, 220.

13.As for what is a good title, the Court of Final Appeal held in Mexon Holdings Ltd v Silver Bay International Ltd [2000] 1 HKLRD 935, 942:

“A good title does not mean a perfect title, free from every possible blemish.  Whenever a question like this arises, … it must be approached from the stand-point of a willing purchaser and a willing vendor, both possessed of reasonably robust commonsense, both intending to see the transaction through to completion in terms of their own bargain.”

14.As for discrepancies in signatures and/or identity, evidence is admissible to identify the party involved and potential title defects arising from such discrepancies can be remedied by proper conveyancing evidence: Lam King I v Tsui Ming Yee [1989-91] CPR 561, 563E-F; Win Mode Industries Ltd v Create Gain Ltd, HCMP 2255/1992 (9 October 1992).  What amounts to proper conveyancing evidence depends on the circumstances of each case.

Was “Chan For Kiu” and “陳水嬌” the same person

15.The real issue raised by this outstanding requisition is whether the Plaintiffs have shown that Chan For Kiu and 陳水嬌was one and the same person.  The circumstances that the two were the same person are overwhelming.

16.The Court must put itself in the time, place and circumstances when the Lot Nos. 1292, 1306 and 1475 were sold by Sin Shiu Lung Tso to Chan For Kiu, Chan Kwok Luk and Chan Kwok Shau.  The time was in 1908 in Ping Yeung Tsuen in New Territories.  The then population in that remote part of the New Territories must have been very small.  Two of the purchasers Chan Kwok Luk and Chan Kwok Shau were indisputably brothers.  The other joint purchaser recorded as Chan For Kiu.   

17.Chan Kwok Luk and Chan Kwok Shau together with Chan Shui Kiu were joint registered owners of numerous other lots of land in D.D. No. 79.  Apart from the three lots to which Memorial No. 5803 related, there was no record of Chan For Kiu and the two brothers being registered as co-owners of any other lots in D.D. No. 79.  These circumstances make it highly unlikely that the two brothers would have partnered with a non-family member in purchasing the three lots under Memorial No. 5803.

18.There was also no record of any application by descendents of Chan For Kiu to succession of the three lots to which Memorial No. 5803 related.  There was no interference to the quiet possession of the three lots or challenge to Memorial No. 5803 over the past eighty years.  All these suggest that Chan For Kiu was probably a non-existing identity.

19.In Chinese, the word “For(火)” is quite similar to “Shui(水)”, though their meanings are antagonistic.  It is highly likely that by mistake the name “Chan Shui Kiu” was written as “Chan For Kiu” in Memorial No. 5803.  This is an inferences which may reasonably be drawn from the incontrovertible facts.  I now turn to the disputed evidence which the Plaintiffs sought to rely.

20.Firstly, the Plaintiffs sought to rely on the statutory declaration of the 5^th Plaintiff.  The 5^th Plaintiff is the son of Chan Wing Hon and the grandson of Chan Shui Kiu.  He produced a family tree extracted from his “Clan Book (族譜)”.  His relationship with Chan Wing Hon and Chan Shui Kiu is not in dispute.  What is in dispute is whether 陳水嬌and Chan For Kiu were one and the same person.  He said that Chan Shui Kiu was also known as Chan Kwok Fuk as named in the Clan Book and had two brothers who were Chan Kwok Luk and Chan Kwok Shau.  These names, i.e. Fuk(福), Luk(祿)and Shau(壽)were indicative of their brotherhood.  He also said that Chan Shui Kiu had three sons, including his father Chan Wing Hon.  All these facts are credible and consistent with the Clan Book.

21.The 5^th Plaintiff further said that Chan Shui Kiu and his two brothers were very rich and were big landlords in the New Territories.  They jointly owned many lots of land, including Lot Nos. 86, 641, 912, 986, 1006, 1042, 1097, 1403 and 1429.  He produced copies of records from the Land Registry and a copy of the Block Crown Lease of D.D. No. 79.  Except in respect of Lot Nos. 1292 and 1475, these facts are incontrovertible.

22.The 5^th Plaintiff referred to the old “A Book” which was a government rent record book kept in the District Land Office which is available for inspection but not for making photocopies.  He said that according to the old “A Book”, the rent in respect of the three lots were settled by Chan Shui Kiu, Chan Kwok Luk and Chan Kwok Shau and that no one by the name of Chan For Kiu has ever made any payment of rent in respect of the three lots.  He could not produce a copy of the old “A Book” because the District Land Office did not permit photocopy to be taken of the old “A Book”.  Be that as it may, if the rest of his evidence is credible, this piece of evidence must also be credible.

23.Then the 5^th Plaintiff referred to Memorial No. 5803.  He said that he has been living in Ping Yeung Tsuen for over sixty years since his birth in 1948.  That was forty years after the purchase of the three lots from Sin Shiu Lung Tso.  He had never heard of and/or known of any person named Chan For Kiu.  Chan For Kiu would have been someone of his grandfather’s age.  There was a good chance during the early part of those sixty years that he would have heard or known of such a person if that person ever existed.  Ms Ho, counsel for the Defendant, argues that this evidence is self-serving.  Indeed it is.  However, there is no dispute that Chan Wing Hon and subsequently the 5^th Plaintiff succeeded the three lots under Memorial No. 69091 and enjoyed undisturbed quiet possession for as long as he could remember since his birth which was about sixty years.  He succeeded the three lots together with other lots as one package.  There was a system of notice and objection for applications for succession in the New Territories operated by the District Office of the then New Territories Administration.  There was no challenge to the Plaintiffs’ ownership of the three lots and their succession was registered by the New Territories Administration.  All these incontrovertible facts enhance the credibility of his evidence.  He has personal knowledge of the matters stated in his statutory declaration.  In the circumstances, I find that the 5^th Plaintiff’s statutory declaration credible.

24.The Plaintiffs also relied on another statutory declaration by Chan Wah Foon.  Chan Wah Foon was born on 31 December 1915.  He was born after the sale of the three lots to Chan For Kiu, Chan Kwok Luk and Chan Kwok Shau.  He was thirteen years old when Chan Wing Hon succeeded the three lots in 1928.  He knew the Chan’s family, including Chan Shui Kiu, Chan Kwok Luk, Chan Kwok Shau and the 5^th Plaintiff.  He knew Chan Shui Kiu was also known as Chan Kwok Fuk and that Chan Shui Kiu passed away in about 1930.  He knew that Chan Shui Kiu, Chan Kwok Luk and Chan Kwok Shau were very rich landlords in Ping Yeung Tsuen and owned many lots of land there.  None of these facts are controvertible.  I have no reason not to believe him.

25.Chan Wah Foon’s statutory declaration corroborated the 5^th Plaintiff’s.  He said that Ping Yeung Tsuen was a small place but he never heard or knew of any person by the name of Chan For Kiu.  He confirmed that there was no one in the Chan’s family known by that name.  Though he is younger than Chan Shui Kiu, he is of the age of the 5^th Plaintiff’s father.  He has personal knowledge of the matters he affirmed in his statutory declaration.  Those matters are not hearsay.  For similar reasons as those I considered in respect of the 5^th Plaintiff’s statutory declaration, I consider Chan Wah Foon’s statutory declaration credible.

26.I find that the 5^th Plaintiff’s and Chan Wah Foon’s statutory declarations are credible.  I also find that the name “陳水嬌” was mistakenly written as “Chan For Kiu” in Memorial No. 5803 and that the two names refer to one and the same person.  I consider the two statutory declarations are conveyancing documents.  Applying the legal principles I mentioned above and the test in MEPC Ltd v Christian-Edwards and Others, I can say with confidence that the Defendant as purchaser will not be at risk of a successful assertion against it of any defects in the title of the said Lots sold under the Agreement.  Adopting the approach of a willing purchaser and a willing vendor, both possessed of reasonably robust commonsense, both intending to see the transaction through to completion in terms of their own bargain, I find that the Vendors have shown a good title to the said Lots to be sold under the Agreement and the Purchaser should have accepted their requisitions as having been adequately answered. 

Conclusion

27.For the above reasons, I make the following order:

(1) a declaration that a good title to the lots to be sold under the Agreement has been shown/made out by the 1^st to 5^th Plaintiffs in accordance with the Agreement;

(2) a declaration that the requisitions and objections of the Defendant in respect of the title of the lots comprised in the Agreement have been sufficiently and satisfactorily answered by the 1^st to 5^th Plaintiffs;

(3) the sale and purchase of the lots as stated in the Agreement be completed within four weeks from the date hereof; and

(4) there be no order as to costs of this application.

Mr. Samson Hung, instructed by Messrs K. M. Tang & Co., for the Plaintiffs

Ms. Jane T. C. Ho, instructed by Messrs Vincent T. K. Cheung, Yap & Co., for the Defendant