TONG YUEN KING & ANOTHER v. ROBERTO SIU LUI

1995, No.MP2949

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H E A D N O T E

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Vendor and purchaser summons - missing document : an assignment among the title deed was missing. In this assignment the purchaser was described as Chan "Ieieen" whereas in the next assignment this person being the vendor was described as Chan "Ieleen".

Held :

(1) From the evidence before the court the court is satisfied that the description in the missing assignment "Ieieen" is just an error.

(2) The court is also satisfied as to the existence of the missing assignment and the contents thereof.

(3) However, the statutory requirement in s.13 of the CPO, Cap.219 is the production of either the original assignment or a certified true copy thereof.

Accordingly the vendor failed to prove title by the production of the document or a certified true copy thereof in question.

Chan Kam Sing v. Cheng So King Aubrey, HCMP No.3276 of 1989, 8 March 1990 per Deputy High Court Judge Findlay, Q.C., as he then was, and Wong Wai Man v. Tang Tat Chi, HCMP No.4172 of 1992, 15 February 1993 per Chan, J. were followed.

Yeung Dallah, Rudia v. Copiluck Limited, HCMP No.3270 of 1992, 24 November 1992 per Woo, J. not followed.

1995, No.MP2949

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 Plaintiffs, the vendors.

The Issue

2. The property involved is a car-parking space ("the property") intended to be sold by the Plaintiffs to the Defendant. The Plaintiffs were unable to produce one of the title documents namely, an assignment dated 10 September 1988 executed by one Miss Ieleen Chan ("Miss Chan") as purchaser. The assignment had been lost probably whilst it was in the custody of the solicitors acting for the vendor of Miss Chan.

3. Further, according to a copy of this lost assignment (Memorial No.3887340), the purchaser was described as Chan "Ieieen" whereas when purportedly the same person assigned the property to the Plaintiffs' predecessor-in-title, the name was spelt as Chan "Ieleen".

4. In short, there are two issues involved in this case namely :-

(1) Whether or not the Plaintiffs have an obligation under s.13 of the Conveyancing and Property Ordinance Cap.219 ("CPO") to prove title to the property by producing the original assignment in question or a certified true copy thereof as contended by the Plaintiffs or a copy (uncertified) of the assignment when available would be sufficient as secondary evidence of the assignment as contended by the Defendant.

(2) Whether there is any doubt as to the identity of this Miss Chan or specifically whether the Miss Chan described as the purchaser is the same person as the subsequent Miss Chan as the vendor.

5. I shall deal with the second issue first.

The identity of the two Miss Chan

6. In 1991 when one Mr Wong Ka Yung, a solicitor acting for Lo Kong Sang Dean and Ling Chi in their sale of the carpark to the Plaintiffs, he had submitted the now missing assignment to the Land Registry for re-registration to correct the mistaken typing of Chan "Ieieen" to Chan "Ieleen". In March 1991, the said assignment was returned to his office for rectification as requested by the Land Registry. However, after the sale of the said property had been completed, he noted that the original assignment was not among the title deeds and documents in his firm's custody. He verily believed that the said assignment had been mislaid and could not be found and he made a statutory declaration to that effect.

7. Previously in 1988, when Miss Chan was described as the purchaser, her full name was stated as Chan Ieieen in Memorial No.3887340, holder of Hong Kong ID No.XXXXXXX(X). In 1990, when Miss Chan sold the property to the Plaintiffs' predecessor-in-title (i.e. the aforesaid Lo Kong Sang Dean and Ling Chi), she executed a Power of Attorney in Singapore and she was identified by a Notary Public of Singapore as Chan Ieleen, holder of the same identity No.XXXXXXX(X). The assignment executed by his attorney also described Miss Chan as Chan Ieleen.

8. There is evidence that the then solicitor representing the purchaser and vendor in this assignment, i.e. Mr J. Fang of J. Fang & Co. had attempted to rectify the assignment.

9. The Commissioner of Registration in the Immigration Department by a letter dated 25 August 1995 confirmed that Miss Chan Ieleen is the holder of HKID No.XXXXXXX(X) according to their records.

10. From the evidence before me, I do not consider there is any risk of a successful challenge to the identity of this Miss Chan. In other words, I am satisfied that the Miss Chan described as purchaser is the same Miss Chan described as the vendor subsequently. However, the challenge to the proof of good title does not end here.

Section 13 of CPO Cap.219

11. The relevant part of s.13 of the CPO provided as follows :-

"13. Proof of title and recitals

(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) proof of title to that land -

(i) where the grant of the Crown lease was less than 15 years before the contract of sale of that land, extending for the period since that grant; or

(ii) in any other case, extending not less than 15 years before the contract of sale of that land commencing with an assignment, a mortgage by assignment or a legal charge, each dealing with the whole estate and interest in that land;

(b) production of any document referred to in the assignment, mortgage or charge mentioned in paragraph (a) creating or disposing of an interest, power or obligation, which is not shown to have ceased or expired and subject to which any part of that land is disposed of; and

(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.

(2) Where this section requires the production of any document, it shall be sufficient to produce a copy -

(a) attested, before 1 November 1984, by 2 solicitors' clerks; or

(b) certified by a public officer or a solicitor, to be a true copy."

It is quite clear from this section that unless the parties have otherwise expressly agreed, the vendor has a duty to produce an assignment by the production of either the original assignment or a certified true copy thereof. The Plaintiffs tried to overcome the provisions in s.13 by the aforesaid statutory declaration of Mr Wong as evidence that the missing assignment had been lost and as secondary evidence of the existence and contents of the missing assignment.

12. The Defendant submitted that when the contract requires the production of the original deed or a certified true copy thereof, the production of secondary evidence would not suffice for showing good title to the property. It is a statutory requirement unless the parties contracted otherwise which is not the case here. Two authorities were cited to support the aforesaid contention namely :

(1) Chan Kam Sing v. Cheng So King Aubrey HCMP No.3276 of 1989 (unreported), per Deputy High Court Judge Findlay, Q.C. (as he then was) dated 8 March 1990,

(2) Wong Wai Man v. Tang Tat Chi HCMP No.4172 of 1992 (unreported), per Chan, J. 15 February 1993.

13. In the case of Chan Kam Sing, the purchaser asked for a certified true copy of the Block Crown Lease relating to the property sold. The vendors said they could not supply this because the original Block Crown Lease relating to the property had been mislaid by the Sai Kung District Land Registry. They could only supply an uncertified photostat copy of a document purporting to be the lease, which, apparently, had been reproduced from another copy of the lease obtained by someone else from the Registry before the original went astray.

14. In considering s.13 of the CPO, Deputy Judge Findlay (as he then was) said as follows :

"The terms of these provisions [i.e. s.13] are perfectly clear. The only question is whether, in spite of the fact that the law says that the defendant is entitled to require from the plaintiffs production of the Crown lease, or a copy certified by a public officer or a solicitor, and the fact that the defendant has done just that, I am able to say that the plaintiffs need not comply with the defendant's requisition, I would have thought, immediately, that I cannot do that, but Miss Cheng has produced an authority that, she submits, says that the plaintiffs are bound to accept secondary evidence of the Crown lease. That authority is Re The Halifax Commercial Banking Co. and Wood (1898) 79 LT 536. I have now read that authority, and l do not accept Miss Cheng's interpretation of it. As I read it, the Halifax case is authority only for the proposition that, it may be that, where original documents are lost, the vendor may show good title by producing clear and cogent evidence of the contents, execution and stamping of the lost deeds. Where, however, the contract, or, a fortiori, the law itself, entitles the purchaser to require that the vendor produce the deeds, I do not think the case is authority for the view that the court may dispense with this requirement. At page 537 of the report of Halifax, Chitty L.J. asks counsel for the vendor in that case: 'Do you say that you can give secondary evidence of a deed where the contract of sale provides that you shall produce the deed itself? Counsel replies: 'No; but the contract here is not to produce the particular deed.' Counsel was right. In that case, the contract required only that the vendor to deliver an abstract of title to the property concerned.

Miss Cheng has adduced no other argument, and I can think of none, that would entitle me, if I were so disposed, to ignore the clear terms of the statute, and say to the defendant that he may not ask by requisitions for something that the law says he is entitled to require."

Deputy Judge Findlay in that case also decided that the Plaintiffs have not produced clear and cogent secondary evidence of the Block Crown Lease.

15. In the case of Wong Wai Man, the original of the Crown Lease of the whole lot in which the property therein was situated was not in the possession of the Plaintiff and it had never been. The vendor could only produce to the Defendant purchaser a certified copy of a certified copy of the Crown Lease of the lot. However, even this certified copy was almost entirely illegible and hence the Defendant requested for a fresh certified copy. The Plaintiff could only produce a certified true copy of the Crown Lease which was certified by an Assistance Registrar of the Land Office. The printed part of this document is not clear but could still be read while the written part of it was not very legible. Chan, J. in his judgment at pp.6 and 7 said :-

"Third, notwithstanding the position at Common Law, s.13(1) imposes upon the vendor a statutory obligation to produce of the Crown Lease unless varied by agreement. This obligation on the part of the vendor is related to and indeed part of his obligation to prove title. But the two obligations must not be confused. This point was made by Deputy Judge Findlay in Chan Kam Sing and another v. Lam Ping Ping HCMP No.3276 of 1989, unreported. In that case, the vendor could not supply a certified copy of the Crown Lease because the original had been mislaid by the Land Office. An uncertified copy of a document purporting to be the Crown Lease was not accepted. The learned judge, distinguishing the Halifax case, held that the Court could not dispense with the requirement under s.13(1). I would respectfully agree. While secondary evidence may be adduced to discharge the obligation to show good title if certain documents are lost, it cannot do away with the obligation to produce the documents if the statute so stipulates. The principle in the Halifax case therefore has no application when it comes to compliance with the statutory requirement. If the Crown Lease or a certified true copy thereof is not produced, no amount of secondary evidence can suffice for the purpose of complying with s.13(1)."

16. However, in this case Chan, J. decided that since the vendor therein can produce a certified true copy by a public officer, the Plaintiff had complied with s.13(1) of the Ordinance. This certified true copy was not legible. The next question, of course, was what were the contents of the Crown Lease. In his judgment secondary evidence came in if the contents were not clear and the vendor was entitled to adduce secondary evidence to show the contents of the Crown Lease. In the case before him, he was satisfied that the purchaser would not be at risk of a successful challenge as to the title of the vendor.

17. With respect, I entirely agree with the aforesaid two decisions of Deputy Judge Findlay and Chan, J.

18. However, I must point out here that apparently there is a decision in between the aforesaid two decisions on 24 November 1992 by Woo, J. in the case of Yeung Dallah, Rudia v. Copiluck Limited, HCMP No.3270 of 1992 (unreported). The vendor in that case cannot produce the original Power of Attorney which was executed less than 15 years before the contract of sale of the property in question, nor any attested or certified true copy thereof. Woo, J. decided at p.7 as follows :-

"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."

19. The aforesaid two decisions of Deputy Judge Findlay and Chan, J. were not cited in the judgment. Apparently Woo, J. relied heavily on the common law position in the case of lost document and in particular the case of Halifax as cited above. With all due respect to Woo, J., I find the reasoning of the aforesaid two decisions more compelling for me to follow instead of the decision in Yeung Dallah Rudia. In other words, unless the parties otherwise agreed to the contrary by expressed intention as provided in s.13, the statutory requirement in s.13 has to be satisfied by the production of the original document or an attested (if applicable) or certified true copy thereof. Secondary evidence of the existence of a document and the contents thereof, albeit proved beyond reasonable doubt, is not enough to satisfy the s.13 requirement.

Conclusion

20. In this case, although I am satisfied as to the identity of Miss Chan and the existence and contents of the missing assignment, I must dismiss the Plaintiffs' application on the ground that they have not satisfied the requirement in s.13 to produce either the original document/assignment in question or a certified true copy thereof by a public officer or a solicitor. The parties have agreed that there should be no order as to costs.