FREE FOCUS LTD v. FELS CHINA LTD

1989, M.P. No. 3356

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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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 latter under s.12 of the Canveyancing and Property Ordinance, Cap.219.

2. The property in question is the 12th floor of Greatmany Centre, Nos. 109-115, Queen's Road East and Nos. 29-31, Ship Street, Wanchai, which the vendor agreed to sell to.the purchaser for an agreed price subject to the terms and conditions set out in the agreement between the parties dated the 23rd November, 1989. The parties were represented by different solicitors - the vendor by Messrs Victor Chu & Co. (referred to by the abbreviated Victor Chu in the affidavits filed herein), the purchaser by Messrs Lee, Ng and Lam.

3. It is not disputed that subsequent to the said agreement, the purchaser's solicitors received certain title deeds. Paragraph 6 of the first affidavit of Mr Ng Kai-cheong, Victor, states :

"6.    By a letter dated 24th November 1989 from my firm to Victor Chu, I have duly raised on the Plaintiff's behalf requisitions, inter alia, on the apparent discrepancy in relation to the passport numbers of the assignor, one Mr Howard Lim, as stated in the Assignment dated 16th October 1976 registered as Memorial No. 1319028 in comparison with the Confirmatory Assignment dated 10th September 1985 registered as Memorial No. 3260029 (hereinafter referred to as "the said discrepancy"). I am now shown a copy of this letter which is marked and exhibited herein as "NKCV-2". It is, now and only, the said discrepancy which form the subject matter of the present dispute between the parties."

4. The discrepancy relied upon by the purchaser is more particularly described in paragraph 9 of Mr Ng's affidavit, which reads :

"9.    The said discrepancy is that both assignments were purportedly executed by the same person and the assignor Mr Howard Lim was purportedly and respectively identified by his Canadian Passport. In the 1st Asignment in 1976, it was stated to be No. WP112995 whilst in the Confirmatory Assignment in 1985 it was No. TV294722. They were completely different Both of these Assignments were executed abroad in San Francisco, U.S.A. but attested to or witnessed by different notaries public. We do not know whether the notary public attesting to the execution of the Confirmatory Assignment had before him the earlier Assignment nor have we reasons to believe that he had. This gives rise to the doubt whether the assignor(s) in the 2 Assignments was/were one and the same person.

5. In their letter dated 30th November, 1989 Messrs Victor Chu & Co answered this particular requisition as follows :

"1.    There is no legal requirement that the parties to conveyancing documents be identified by reference to their identity cards or passports although this is the recommended practice of the Law Society of Hong Kong. Both these assignments were signed by Howard Lim and witnessed in a manner which is normally acceptable. The signatures appear to be made by the same person. We cannot explain the discrepancy in the passport numbers but it does not appear to us unusual that a person's passport number can change and we take the view that due to the matters referred to above, we are not required to explain the change."

6. The purchaser's solicitors responded by their letter of 1st December suggesting that "in order to link up the two documents and prove that the 2 signatories are one and the same person, written evidence is requried to show that the passport number of Howard Lim has changed from WP112995 to TV294722". They said that a Statutory Declaration would suffice for this purpose.

7. Victor Chu & Co. replied on the 4th December. Paragraph 2 is the pertinent answer and states :

"2.    We do not agree that a Statutory Declaration is necessary, because on the face of the documents there is nothing to indicate that the same have not been properly executed by the same person as vendor. Furthermore, the identification of a party to a conveyancing document is not a legal requirement, but a practice.which has been adopted in Hong Kong following directions of the Law Society. In any event, Howard Lim has been identified in each document in a manner which is normally acceptable. The Confirmatory Assignment has been executed before a notary public whose duties include checking the identity of a person who appears before him to execute documents and the Assignment has been executed. The Law Society and the Practice Directions have been followed. There is nothing on the face of the documents to indicate that the same have been properly executed and the signatures appear to have been made by the same person (sic). There is no direction anywhere requiring documents of identification used by one person to bear the same number."

8. The purchaser's solicitors were unmoved and persisted in their demand. In their letter of the 6th December, they indicated that the purchaser was "prepared" to take out this summons.

9. Messrs. Victor Chu & Co contacted the solicitors who had drafted the Confirmatory Assignment, Messrs Y.T. Chan & Co., who in their letter of the 19th December expressed the view that the title deeds of the whole building are in order and the same have been approved by the solicitors then acting for the purchaser, and they said that they were not aware of the present whereabouts of Mr Howard Lim.

10. Mr Ng, for the purchaser, argued that it could not be assumed that the notary public who attested the 1985 Confirmatory Assignment had satisfied himself that the person before him was the same who had signed the earlier assignment of 1976. He asserted that because a person had purportedly been identified by a passport number, it became part and parcel of his' identification so that the passport was his identification. While he accepted that on the face of those two documents the signatures of Howard Lim did not give rise to suspicion, he maintained that, in the absence of any expert handwriting evidence or other conveyancing evidence, doubt about those signatures was created by the different passport numbers mentioned in the notarial attestation.

11. Ms. Clough, for the defendant, relies on s.23 of the ordinance, Cap. 219, which states :

"23. Any instrument appearing to be duly executed shall be presumed, until the contrary is proved, to have been duly executed."

She referred to Emmet on Title, 19th edn. para. 18.002, where it is stated :

"In ordinary everyday practice if a deed on the face of it appears to have been duly executed and attested and, there are no suspicious circumstances, the fact of such due execution is accepted without enquiries or further proof (Law Society's Digest, Opinion No. 125)."

In William's on Title, 4th edn., the same matter is dealt with at p.658 under the heading "Proof of Execution":

"Where a deed appears on the face of it to have been duly executed, it is not usual to require proof of its execution if it is produced from the proper custody. It is apprehended that in such a case the Court would presume its due execution and that, therfore, the purchaser could not require proof of the execution; and it seems that this is so although the deed is not twenty years old. If, however, there are grounds for suspicion, a purchaser is entitled to demand reasonable proof of execution."

12. Ms. Clough submitted that, there being no apparent discrepancy in the two signatures which were properly attested, both these documents appear to have been duly executed and as such the burden shifted to the purchaser to show that either one or both were not so executed.

13. It seems to me with great respect that the argument urged by Mr Ng is misconceived, based as it is on the function of a notary public. As is well known and understood, a notary public is a duly appointed officer whose public office it is, among other matters, to attest or certify deeds and other documents including conveyances of real and personal property. His office, which is one of great antiquity, is recognised in all civilised countries and by the law of nations his acts have credit everywhere - 34 Halsbury 201. For attesting purposes I do not think that he is obliged to call for or compare, as has been suggested, any other doucment to establish the bona fides of the signatory. He may, however, require for his own satisfaction some acceptable proof of identity of the person whose signature he has attested. This is not to say, in my opinion, that any such proof of identity that may be produced to the notary thereby supersedes the signature, or replaces it, which is so attested. That he has so satisfied himself and verified the identity of the signatory lends weight to his attestation of the signature as being of the same person . 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 ealrier assignment; it remains the signature that is affixed to a document in his presence that is important.

14. As already stated, there is no serious challenge to the signatures of Edward Lim which appear on those two assignments. It is right, I think, to say that even to the naked eye they disclose a close resemblance and similarity. Once the significance of the personal signautre and its superior status is understood vis-a-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. At their highest, those numbers indicate that the notary who attested the 1976 assignment was satisfied with the identity of the signatory from the passport that was produced to him at the time, as indeed was the latter notary from the passport, albeit bearing a different number, that was produced to him when attesting the 1985 Confirmatory Assignment. What is significant is that the holder of those passports was none other than Edward Lim. The change in the passport numbers is of no significance in my opinion.

15. Mr Ng sought to rely on the decision of Clough, J.A., in Kan Wing Yau & Another v. Hong Kong Housing Society, (1988)2 H.K.L.R. 187 and the decision of Godfrey, J., in Lam Kin I v. Tsui Ming-yee, M.P. No. 361 of 1989. Those cases are easily distinguishable on facts in that they were concerned with apparent discrepancies in the signatures as such, which is not so in the instant case. In the former the two signatures did not "look the same" which was held to be a "reasonable ground for suspicion and entitled'the purhcasers to demand reasonable proof of execution on the ground that the presumption of due execution does not arise under s.23 of the Conveyancing and Property Ordinance because there is not the appearance of due execution", p:199. Likewise in the latter case there was a "material difference or discrepancy between the two signatures" which disentitled the vendor from the benefit of the presumption.

16. In all the circumstances I find myself unable to agree with Mr Ng.

17. Further to what I have said thus far, the indicia of identity provided by the deeds themselves lend support to the vendor. Besides the fact that the address of Howard Lim and his description as a "Gentleman" being the same in both, the important factor is that in both is stated the specific capacity as the administrator of the estate of a predecessor in title, the capacity in which he signed both' those documents.

18. Agreeing with Ms. Clough, and for the reason I have endeavoured to give, I find that the vendor is entitled to rely on the presumption of due execution. The burden was thus on the purchaser to prove the contrary which in my opinion he has not been able to discharge. I find that there is no blot on the title on the grounds suggested, either theoretical or real. If there was a blot it would in my judgment be theoretical only and thus within the realm of the acceptable mentioned in In re Heaysman's and Tweedy's Contract (1893)69 LT 89.

19. I will now hear the parties on the order that I should make to reflect these findings.

    (After parties had submitted an agreed draft order). It is declared :

1.    That the requisition and objection numbered 1 of the plaintiff as stated in the letter dated 24th November, 1989 from the plaintiff's solicitors to the defendant's in respect of the title to the property comprised in the above-mentioned Sale and Purchase Agreement has been sufficiently answered by the defendant;

2.    That the discrepancy in the passport numbers identifying the assignor one Mr Howard Lim as stated in the Assignment dated 16th October 1976, registered as Memorial No. 1319028, in comparison with the Confirmatory Assignment dated 10th September 1985, registered as Memorial No. 3260029, is not a defect in the title to the said property.

20. And it is ordered that the plaintiff do pay the defendant the costs of and  incidental to this application, such costs to be taxed if not agreed.