Lai Wai and Others v. Lee Yuet Yung Pat and Others

HCMP 1524/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1524 OF 2011

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BETWEEN

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Before: Deputy High Court Judge L. Chan in Court

Date of Hearing: 16 November 2011

Date of Judgment: 16 November 2011

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J U D G M E N T

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1.This is a vendor and purchaser summons. The plaintiffs are the owners of Flat A on the Ground Floor and on the 1st Floor of Nos. 29A and 29B, Nga Tsin Wai Road, Kowloon. They entered into a provisional agreement dated 21 May 2011 with the defendants to sell them the Ground Floor. They also entered into another provisional agreement dated 21 May 2011 with the 1st defendant to sell her the 1st Floor.

THE BACKGROUND OF THE REQUISITION

2.In due course, a number of requisitions were raised by the defendants’ solicitors.  There is one requisition that the defendants think that the plaintiffs have not properly answered.  It relates to the identity of one Wong Yue Quit. 

3.Wong Yue Quit together with Lai Sai Tak, Au Ping Sum, Au Yuet Sum and Au Chun Sum purchased the Ground Floor and 1st Floor by two assignments, both dated 24 August 1961.  They were represented by one firm of solicitors in both purchases and the same solicitor witnessed their execution of the two assignments.  The two assignments were registered at the Land Registry by Memorials UB350438 and UB350439.  The two assignments and the Memorial UB350438 have been produced.  Wong Yue Quit and his fellow purchasers have also signed this Memorial. 

4.The two assignments are hereinafter referred to as the 1961 assignments and they together with Memorial UB350438 are hereinafter referred to as the 1961 documents.

5.On 7 April 1972 Wong and his four fellow owners executed another two assignments by which Wong sold his interest in the two properties to the other four owners.  They were represented by a different firm of solicitors in these two transactions and one solicitor witnessed their execution of both assignments.  The assignments were then registered by Memorials UB883402 and UB883403.  Memorials UB883402 and UB883403 have also been produced, and Wong and the other four owners have also signed them. 

6.These two assignments are hereinafter referred to as the 1972 assignments, and they together with the two Memorials are hereinafter referred to as the 1972 documents. 

7.In the 1961 assignments, the five purchasers were identified by their identity card numbers.  These numbers are made up of six digits without any English alphabet. 

8.In the 1972 assignments, Wong and the other four owners were also identified by their identity card numbers.  These numbers are also made up of six digits and are preceded by the alphabet A or B.  These six digit numbers are different from the six digit numbers in the 1961 assignments for each of the five persons.

THE REQUISITION AND ANSWERS THERETO

9.The discrepancy in identity card numbers formed the basis of a requisition made by the defendants’ solicitors on 5 July 2001. The requisition stated,

“8. We note that the identity numbers of all Wong Yue Quit, Lai Sai Tak, Au Ping Sum, Au Yuet Sum and Au Chun Sum in Assignment Memorial Nos. UB350438, UB350439 (being …, …, …, … and …) are different from those in Assignment Memorial Nos. UB883403 and UB883402 and all other subsequent Assignments (being B…, A…, B…, A… and B…). Please produce documentary evidence showing that they were the one and the same persons in the said Assignments.”

10.The plaintiffs’ solicitors replied on 6 July that all five persons made their signatures in the same style which indicates that the signatures in the 1961 documents and the 1972 documents were made by the same persons.  The plaintiffs’ solicitors also stated that all signatures were properly attested by solicitors in accordance with usual conveyancing practice who would have satisfied with the identities of the parties before the execution of the documents.

11.The defendants’ solicitors replied on 9 July and disagreed.  They said that the witnessing solicitor could only confirm the persons executing were holders of the identity cards recorded in the documents, but that does not mean that the five persons executing the 1961 documents were the same persons who executed the 1972 documents.  The defendants’ solicitors insisted on documentary evidence to prove that the five signatories of the 1961 documents were the same as the five signatories of the 1972 documents.

12.In their letter of 11 July the defendants’ solicitors further referred to Hong Kong Conveyancing Law and Practice[1] which stated that the Hong Kong identity card numbers very rarely change upon replacement or re-issue.

13.They further said in this letter that one of the signatures of the five signatories in the Assignments was different, but they did not say who of the signatories and which signature of his that was different.

14.The plaintiffs’ solicitors replied on 13 July and quoted a letter from the Immigration Department dated 29 June 2011, which was in reply to their inquiry on changes in the system of registration of persons.  The quote reads,

“Please note that the identity card registration system only came in force in Hong Kong since the end of 1949 and we would not have any information on those persons who had been in Hong Kong before that time. In 1950s, persons who had applied for registration would be issued with paper-type identity cards. In 1960s, a re-registration exercise for all Hong Kong residents was conducted in which paper-type Hong Kong identity cards were replaced by laminated ones. All paper type identity card records were declared invalid in 1965 and destroyed in 1966. Any person who had not applied for re-registration of identity cards in 1960s was deemed to be unregistered persons.”

15.The plaintiffs’ solicitors then said in their letter that given the change in the registration system and the assignments were executed in 1961 and 1972, it was not surprising that the identity card numbers would have changed. 

16.Regarding the issue of signature, the plaintiffs’ solicitors said that they understood the signature in question was that of Wong’s.  They noted that Wong’s signature in the assignment registered by Memorial UB350438 had the Chinese characters running from right to left with the surname on the right, whilst Wong’s signature in the assignment registered by Memorial UB350439 had the characters running from left to right.  They said that this was merely a difference in the style of writing.  They also referred to Wong’s signature in Memorial UB350438 itself, which also ran from left to right.

17.This answer was however not accepted by the defendants.  The parties later agreed to resolve the matter by a vendor and purchaser summons.

18.The plaintiffs have produced a further letter from the Immigration Department dated 14 July 2011 in this application.  The relevant part of the letter stated,

“The issue of Hong Kong identity cards was first introduced in 1949. In October 1950, the registration was extended to cover the whole population. The identity card then was made of stiff paper. As from June 1960, the population was re-registered and an improved plastic laminated identity card was introduced. Groups of the population were called up to replace their identity cards of different number by phases. Logically speaking, and not acceding into ROP (Registration of Persons) records, the identity card numbers (…, …, …, … and …) were of paper identity cards whereas (B…, B…, A…, A… and B…) were of plastic HK identity cards.”

ANALYSES AND DECISION

                   The identity card numbers

19.From the information provided by the Immigration Department, it is clear that the practice of using the same identity card number in replacement and re-issue was only adopted since the use of plastic laminated identity cards in the 1960s.  The change of paper identity cards to plastic laminated identity cards started in June 1960. 

20.If the five purchasers in the 1961 documents should have obtained their new plastic laminated identity cards before executing the 1961 documents on 24 August 1961, then it can be expected that their identity card numbers in the 1961 assignments would be the new ones which should be the same as their identity card numbers in the 1972 assignments. However, if they should have obtained their new identity cards after 24 August 1961, then their identity card numbers recorded in the 1961 assignments would still be the old numbers which would be different from the new numbers recorded in the 1972 assignments. 

21.Therefore, if the signatures in the 1961 documents and the 1972 documents are sufficiently similar to one another and there is no other cause to doubt whether any or all of the signatories of the 1961 documents are the same as those of the 1972 documents, then the mere fact of the difference in identity card numbers in this case is not a cause for concern, the reason being that there is a legitimate and proper explanation for the numbers to be different.

                   The Signatures of Wong

22.I now come to deal with the signature issue.  There is no dispute that the 1961 documents were signed by five persons before the same solicitor and the 1972 documents were also signed by five persons before another solicitor.  There is no suggestion that any or all of the five signatories to one of the two 1961 assignments were not the same as the five signatories to the other 1961 assignment.  The same applies to the two 1972 assignments.  The only dispute is whether the Wong who signed the 1961 documents was the same Wong who signed the 1972 documents. 

23.This dispute can be resolved simply by placing the seven sheets of paper containing the signatures side by side to see if the Wong signatures in the 1961 documents are similar to the Wong signatures in the 1972 documents to the extent that it can be concluded they are all the signatures of one and the same person.

24.Miss Ho, counsel for the defendants, submitted that it is not safe to carry out a comparison of the Wong signatures as the signatures in the 1961 documents do not appear to be similar to one another. Furthermore, all seven signatures purportedly of Wong do not appear to be similar to one another as well.  There is therefore no basis to undertake a comparison.

25.I take a different view.  For a well-educated person who signs in a cursory manner, his signatures usually bear a marked resemblance to one another in style and appearance.  For a less well-educated person who signs, not in a cursory fashion, but by writing the Chinese characters stroke by stroke, the resemblance of his signatures with one another may not be as marked as the cursory signatures of a well-educated person. 

26.Bearing this in mind, I note that all seven signatures purportedly of Wong were not written in a cursory style but were written stroke by stroke. 

27.Having carefully studied them in the 1961 documents and then in the 1972 documents and then comparing them in one lot, I find that they are sufficiently similar to one another and I conclude that they were made by one and the same person.

28.At this point I would also refer to paragraphs 13 and 14 of the judgment of Deputy Judge Saied in Free Focus Ltd v Fels China Ltd, HCMP3356/1989,

“13. … The significance of a personal signature was emphasised by McMullin, J., (as he then was) in MA Chun-man v. Yung, Yu, Yuen & Co., (1978) H.K.L.R. 26, at p. 32

‘For all that, a personal signature bearing as it does the special impress of its user's identity retains, under all variations of custom and usage, its essential significance as the pre-eminent authentic mark.’

It follows therefore that it is not merely a question of being satisfied that the attesting authority before whom the document is signed is himself satisfied as to the identity of the person before him being the same who had signed the earlier assignment; it remains the signature that is affixed to a document in his presence that is important.

14.  …  Once the significance of the personal signature and its superior status is understood vis-à-vis the personal satisfaction of the attesting authority as to the identity of the person before him, it becomes plain that the two different passport numbers cited in the notarial attestation are devoid of any significance or relevance to the central issue now before me.”

29.I therefore find that the plaintiffs have sufficiently and satisfactorily answered all the requisitions on the title of the two properties as raised by the defendants and the plaintiffs have shown and proved a good title to the properties.

COSTS

30.Finally, on costs, since the parties have agreed that there should be no order as to costs regardless of the outcome, so be it.

Mr Raymond Tsui, instructed by Messrs W S Szeto & Lee, for 1st to 4th Plaintiffs

Ms Jane Ho, instructed by Messrs Vincent T K Cheung, Yap & Co., for 1st to 3rd Defendants