KOK YUN KUEN v. AU YEUNG BIK TAI AND ANOTHER

[The memorial of an instrument must not be confused with the instrument itself; but, if some good reason is shown for the non-production of the instrument, the memorial may be treated as sufficient secondary evidence of the fact that the instrument was made and (where possible) sufficient secondary evidence of its contents]

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. This is a vendor and purchaser summons. The plaintiff ("the purchaser") says that the defendants ("the vendors") have failed to show a good title to the above-mentioned property according to the contract between them (which is a sale and purchase agreement dated 27th June 1991 for the sale of the property at the price of HK$1,699,306, even in these days a not insubstantial sum). The vendors, of course, say that they have shown a good title.

2. It will be convenient in examining these contentions to commence, as the title does, with the block Crown lease, comprising this property and other property, and granted on some day before 1908 (the exact date is unclear on the copy before me, but for present purposes, this does not matter). In particular, the Crown lease comprises Lot 391 in Demarcation District No.106. It follows (like night follows day, as it seems to me) that it must therefore have comprised the property the subject of the agreement dated 27th June 1991, which is the "remaining portion" of that lot. Insofar as the purchaser suggests that there can be any doubt about this, I reject the suggestion.

3. The Crown lessee was one Tang Shui-tai. The vendors say that by a transfer dated 4th November 1946 Tang Shui-tai (who had taken the alias Tang Pak-kau) transferred the property to Tang Kan-yin (then aged 16 years) with himself, Tang Pak-kau, as trustee. They cannot produce this transfer (if there ever was one) nor any copy of it of any sort, certified or otherwise. But they can point to a memorial of the transfer, registered on 4th November 1946 as memorial No.114789. The purchaser is not satisfied with this and says that he is entitled to production of the transfer itself or a certified copy of it. He relies on a decision of my own, Lai v. Chau, [1987] MP 2206, 2nd December 1987 (unreported), in which I pointed out that conveyancers should not confuse the memorial of an instrument with the instrument itself, and that a memorial, although evidence of the registration of the instrument, is not evidence of its contents. I refused in that case to accept an argument that, so long as a copy of the memorial of a conveyance was produced, it was unnecessary to produce the conveyance itself.

4. I do not resile from any of this. But the case does not say, nor does it purport to say, everything that can be said about memorials. In particular, it must be said that, although the memorial of an instrument must not be confused with the instrument itself, the memorial may constitute secondary evidence of the fact that the instrument was made and (insofar as the contents of the memorial make it possible) secondary evidence of its contents. To get this far, you must get over the "best evidence" rule; that is to say, you must show that there is some good reason for not producing the instrument itself, so as to justify your attempt to prove it by secondary evidence.

5. In Hong Kong, it has for a long time been the practice of solicitors acting for a vendor who cannot produce an instrument which proves a link in the chain of his title to offer the memorial of that instrument, not as the link itself, but as secondary evidence of it. And it has for an equally long time been the practice of solicitors acting for the purchaser to accept such evidence as sufficient and satisfactory. This practice of conveyancers here in Hong Kong ought to be recognised as perfectly legitimate and I so recognise it. A refusal to recognise it would destroy many, if not most, of the titles to land in the New Territories for no good reason. I am therefore prepared to hold without hesitation that, in the present case, the vendors, who have searched unsuccessfully for the original, have sufficiently proved, by the memorial No. 114789, the transfer of 4th November 1946 by the Crown lessee to Tang Kan-yin (then aged 16 years) with himself as trustee.

6. Next, the vendors say that on 11th November 1949 Tang Yik-shi was appointed as joint trustee with the Crown lessee. Again, the vendors cannot produce the appointment (if there was one). But they have produced a memorial No.125413 of the same date from which it appears that Tang Yik-shi "is hereby appointed" to that office (it is said, but not proved, that the signature of the witness to the appointment set out in the memorial in Chinese characters, was that of Tang Yik-shi himself). I hold that this is sufficient secondary evidence of the appointment of Tang Yik-shi as an additional trustee and sufficient (if necessary and appropriate, which I doubt) to vest the property in the two trustees: see section 41 of the Trustee Ordinance, Cap. 29, following the provisions of the English Trustee Act 1925, s.40.

7. The vendors next say that Tang Pak-kau died on 16th July 1950. On this basis there was registered on 26th July 1957 a memorial No.13725 of "cancellation of trustee" which shows or purports to show that Tang Pak-kau "is hereby removed from the trusteeship". I entertain considerable doubt about the legal effect of this but no doubt at all that this memorial, made over 30 years ago, should be treated as sufficient secondary evidence of the death of Tang Pak-kau. This, an act of God, removed him far more effectively than could any act of the Assistant Land Officer, New Territories (who received the memorial) from the burden of his earthly trusteeship.

8. We now come to more recent times. On 21st August 1980, Tang Yik-shi purported to assign the property to Tang Kan-yin. The vendors have this time been able to produce a proper copy of the relevant instrument (as well as of the memorial of it, No.236310 dated 2nd September 1980). Again I entertain considerable doubt as to the effect of this; but I have no doubt that immediately afterwards Tang Kan-yin had vested in him the entire legal and beneficial interest in the property.

9. No question arises as to the devolution of title from Tang Kan-yin to the vendors.

10. In the result, I am satisfied that the vendors have shown a good title to the property and I shall so declare.

11. The purchaser quite properly raised a number of requisitions on the title which are now raised as questions in the originating summons by which these proceedings were commenced. Having decided that in this case I should make a general declaration as to title, I think it unnecessary separately to answer these questions.

12. I will hear counsel, if asked to do so, on the question of costs; but it might be helpful if I indicate now that my provisional view is that I should make no order as to costs.