YEUNG DALLAH, RUDIA v. COPILUCK LTD.

1992, No. MP3270

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 pursuant to section 12 of the Conveyancing and Property Ordinance  whereby the plaintiff seeks a declaration from the court that she has proved good title to the property being all that one equal undivided sixth part or share of and in all that piece or parcel of ground registerd at the Land Office as Subsection 3 of Section Q of Inland Lot No.29, known as No.13, Pak Sha Road, 3rd Floor, Hong Kong ("the suit property") in relation to the execution of the assignment dated 9th April 1988 registered at the Land Office as Memorial No.3673049 ("the subject assignment") notwithstanding the failure on her part to produce the original of a Power of Attorney executed on a date unknown but in or around late March 1988 ("the Power of Attorney") pursuant to which she executed the subject assignment on behalf of the assignor, Yeung Kwok Keung ("Yeung").

2. The subject assignment forms part of the plaintiff's title to the suit property. By the subject assignment, Yeung assigned the suit property to one Hassan Ha, Wai Ming Amina ("Hassan Ha") by way of gift. By another assignment dated 28th September 1988, Hassan Ha assigned the suit property to the plaintiff, also by way of gift. The plaintiff is the vendor and the defendant the purchaser under an agreement dated 4th August 1992 made between them for the sale and purchase of the suit property ("the agreement"). The application is made to the court pursuant to clause 10 of the agreement and the necessity for seeking the declaration arose out of the loss of the Power of Attorney.

3. In fact there are two issues which require the determination of the court, namely,

(a) whether the Yeung Kwok Keung, who was described as the assignee of the suit property in an assignment dated 9th February 1966, was the same person as the assignor in the subject assignment; and

(b) whether a good title can be shown in the absence of the Power of Attorney.

The identity of Yeung Kwok Keung

4. By the assignment dated 9th February 1966, a Yeung Kwok Keung who was described in that name care of Tsan Yuk Hospital Victoria in Hong Kong, Medical Practitioner, took the assignment of the suit property from the predecessor in title. However, he was nowhere in this assignment identified by reference to his identity card number.

5. Yeung died intestate on 22nd April 1988, leaving the plaintiff being his widow and two children surviving him. The documentary evidence before me starting from the marriage certificate dated 27th October 1967 evidencing the marriage between him and the plaintiff clearly shows that Yeung was at all material times a medical practitioner.On the Estate Duty Affidavits sworn by,the plaintiff and Hassan Ha, the subject assignment and the Legal Charge dated 9th March 1988 in respect of No.14, Tai Hang Road, 1st Floor, Cherry Court, Hong Kong, Yeung's address was invariably described as at l/F, 14 Tai Hang Road, Hong Kong. That property was owned by Yeung and was the matrimonial home. In the Memorial No.1844344 together with the assignment dated 11th February 1980 in respect of that property, Yeung's identity card number of A526404(1) is shown. The same identity card number is also shown on the said Legal Charge dated 9th March 1988, the said Estate Duty Affidavit sworn by the plaintiff, and the property tax return in respect of the suit property date 12th November 1988 filed by the plaintiff. The title deeds of the suit property were also in Yeung's possession.

6. I have compared the signature of the Yeung Kwok Keung on the assignment dated 6th February 1966 with Yeung's signatures on the said Memorial No.1844344 of February 1980 and the said Legal Charge dated 9th March 1988, and giving allowance to the long period of time in between the documents, they appear to have come from the same person. Mr Kuo Man Kwong David ("Mr Kuo"), a partner of Messrs T.S. Tong having the conduct of this matter for the plaintiff, deposes to the fact that on 31st October 1992, he attended the Inland Revenue Department and inspected the property tax file in respect of the suit property. The file contained a number of property tax returns signed by Yeung. He compared those signatures with the signature of the Yeung Kwok Keung on the assignment of 6th February 1966, and found them to appear to have come from the same person. The Inland Revenue Department did not allow copies to be made of the said tax returns, and therefore they are not before me. However, there is no ground for me to suspect or doubt Mr Kuo's evidence.

7. From all the evidence before me, I am fully satisfied that Yeung Kwok Keung, the assignee of the suit property in the assignment dated 9th February 1966, was the same person as the assignor Yeung Kwok Keung in the subject assignment, and I make a declaration to that effect.

Title

8. By the subject assignment dated 9th April 1988, Yeung assigned the suit property_.to Hassan Ha by way of gift. The subject assignment was executed on behalf of Yeung by the plaintiff described therein as his lawful attorney. But the Power of Attorney appointing the plaintiff as the lawful attorney of Yeung cannot now be found.

9. Section 13 of the Conveyancing and Property Ordinance provides as follows:

"(1) Unless the contrary intention is expressed, a purchaser of land shall be entitled to require from the vendor, as proof of title to that land, only production of the Crown lease relating to the land sold and -

(a)    . . .

(b)    . . .

(c)    production of any power of attorney under which any document produced is executed where that document was executed less than 15 years before the contract of sale of that land.

As the subject assignment is a title document and was executed less than 15 years before the agreement,the production of the Power of Attorney is required in order for the plaintiff to show good title to the suit property. However, not only is the Power of Attorney lost, but no copy of it can be found.

My attention is drawn to Emmet on Title,para. 5.088 which states:

"Missing documents - Where the vendor is unable to produce documents because they have been destroyed or lost, he is permitted instead to produce secondary evidence of the contents of the documents (Re Halifax Commercial Banking Co and Wood (1898) 79 LT 536; Halkett.v. Dudley [1907] 1 Ch 590). Here, however, the due execution of the missing documents has to be proved, not presumed (Brvant v. Busk (1927) 4 Russ 1). Again, the loss of the documents must be proved (Re Duthy and Jesson [1898] 1 Ch 419), although a statutory declaration as to this will usually suffice (Hart v. Hart (1841) 1 Hare 1). Due stamping of such missing documents will be presumed (ibid)."

In Re Halifax Commercial Banking Co and Wood (1898) 79 LT 536, CA, the learned judges had the following to say:

"There is no condition providing for the non-production of lost deeds. But the mere fact of their loss does not release the purchaser from the performance of his contract. He can be compelled to complete if he is furnished in proper time with satisfactory secondary evidence of the lost documents. This was decided in Brvant v. Busk (4 Russ.l) and Moulton v. Edmonds (1 De g. F. & J. 246)." (per Lindley, M.R. at p.539)

"The two authorities cited of Bryant v. Busk (ubi sup.) and Moulton v. Edmonds (ubi sup.) show that the court of equity will force a purchaser where the deeds were supposed to have.been lost to take the title upon secondary evidence as to the contents of the deeds, and their having been duly executed and duly stamped. But in my opinion the secondary evidence produced ought to be clear and cogent." (per Chitty, L.J. at p.539)

"Now, as to the law laid down in Brvant v. Busk (ubi sup.), there is really no doubt. The loss of title deeds does not prevent a vendor from supplying the loss by giving first, sufficient evidence of the loss; and, secondly, sufficient evidence of the contents, execution, and stamping of the deeds which have been lost.."

In Halkett v. Dudley [1907] 1 Ch 590, at 604, Parker J. said:

"I take the common law principle to be that when a party proves that he is not in a position to adduce the primary evidence, for example, that the document in question is lost or cannot be found, or that it is of record in a foreign country the laws of which do not admit of its production, he is at liberty to give secondary evidence of its contents."

Vo1.17 of Halsbury's Laws of England, para.140 also has this to say:

"Proof of lost or destroyed document. Where a document has been lost or destroyed, and cannot be found after due search, secondary evidence of its contents is admissible. The court must be satisfied that the document existed, that the loss or destruction has in fact taken place, and that a reasonable explanation of this has been given. Thus a diligent search must have been made in good faith in the place where the instrument would most properly be found, but not necessarily every possible place ...

The question of the sufficiency of the search is for the judge, ..."

10. Two partners of the firm Messrs T.S. Tong & Co., Mr KUO and Mr Benedict Woo, swore an affidavit each concerning the Power of Attorney. Mr Kuo deposes to the fact that Yeung had been a client of the firm for 20 years,and that he personally came to know both Yeung and the plaintiff in 1984. Mr Woo deposes to the fact that he had known Yeung since 1958 and had been close friends with him. Both Mr Kuo and Mr Woo depose that the Power of Attorney was prepared by the firm and executed by Yeung before them at Yeung's clinic and that the Power of Attorney was a s.7 Power of Attorney executed in accordance with s.7 of the Powers of Attorney Ordinance. Although a diligent search has been made in the firm to locate the file relating to the preparation of the Power of Attorney, the file seems to have been misplaced and cannot be found. Mr Kuo also deposes to the fact that the Power of Attorney was executed by Yeung sometime before the subject assignment was executed by the plaintiff.

11. The plaintiff has also affirmed an affirmation herein in Australia which was filed on 19th November 1992 whereby she deposes to the fact that the Power of Attorney was prepared by Messrs. T.S. Tong & Co. sometime in or about March 1988 and was executed by Yeung in her presence at his clinic. She further deposes that she had used her best endeavours and means to locate the Power of Attorney amongst the papers in her possession, custody and control but without success and she believes that it has been lost in the course of her emigration to Australia.

12. I am satisfied that the Power of Attorney did exist and it existed at the time when the subject assignment was executed by the plaintiff as attorney for Yeung. I am also satisfied that all reasonable efforts have been made by all relevant persons who had or might have possession of the Power of Attorney or any copy of it and that it and all copies of it, if such copies existed, cannot be found. In the circumstances, it is a proper case to allow secondary evidence to be produced as to the existence, due execution, and contents of the Power of Attorney.

13. The evidence given by Mr Kuo, Mr Woo and also the plaintiff has satisfied me that the Power of Attorney was duly executed, that it was one made under the Powers of Attorney Ordinance pursuant to s.7 thereof, and that the contents were as in the form of the Schedule to the Ordinance. I am therefore prepared to and do make a declaration in the following terms: "A declaration that the plaintiff, Madam Yeung Dallah, Rudia, has proved good title to the property being all that one equal undivided sixth part or share of and in all that piece or parcel of ground registered at the Land Office as Subsection 3 of Section Q of Inland Lot No.29, known as No.13, Pak Sha Road,3rd Floor, Hong Kong in relation to the execution of the assignment dated 9th April 1988 registered at the Land office as Memorial No.3673049 notwithstanding the failure on her part to produce the original or any copy of a Power of Attorney pursuant to which she executed the said assignment on behalf of the assignor, Yeung Kwok Keung, and that the said Power of Attorney was duly executed on a date unknown but in or around late March 1988 and its contents were in the form as shown in the Schedule to the Powers of Attorney Ordinance, Cap.31."

14. As the parties have agreed, I order that there be no order as to the costs of this summons.