DCMP 544/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 544 OF 2008

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JUDGMENT

Background

1. On 12 December 1969, Mr. Tai Chee Iu and Madam Wong Fung Ling ("Wong") acquired Flat 15 on 10th floor of Wai Lee Building, 997 King's Road, Hong Kong ("Property"), under an assignment registered by Memorial No.715144 ("1969 Assignment").

2. On 20 July 2007, Wong and the 1st Plaintiff, Mr. Tai You alias Tai Chee Iu ("Tai") entered into an agreement ("Agreement") with the Defendant, Li Shuk Kut ("Li"), for sale of the Property to Li.  As vendor, Tai was described in the Agreement as "Tai Chee Iu (戴慈耀) alias Tai You (戴祐)".  He signed both the names of Tai You and Tai Chee Iu in Chinese.  Completion of the sale and purchase was scheduled to take place on 18 October 2007.

3. The following facts are not in dispute.

4. On 23 July 2007, the solicitors for Wong and Tai ( Messrs. Chung & Kwan) sent the title deeds and other relevant documents of the Property to the solicitors acting for Li ( Messrs. Peter Mo & Co).  These included a certified copy of a statutory declaration made by Tai dated 26 April 2007 ("1st Declaration").  In the 1st Declaration, Tai declared that he was originally named Tai You (戴祐), was also named Tai Chee Iu (戴慈耀), and that both names refer to the same person. 

5. On 2 August 2007, Li's solicitors raised  requisitions on the identity of Tai and sought evidence to show that Tai You was also known as Tai Chee Iu when he executed the 1969 Assignment. 

6. On 6 September 2007, the solicitors for Tai and Wong provided certified copies of the statutory declarations of Tai and Wong both dated 20 June 2007  (respectively "2nd Declaration" and "3rd Declaration").

7. In the 2nd Declaration, Tai stated that he is the holder of Hong Kong Identity Card No. xxxxxx , and was originally named Tai Chee Iu.  He stated that he came to Hong Kong in the 1940's, and was registered as "Tai You" when he first obtained his Hong Kong Identity Card.  He further stated that Tai Chee Iu was his clan's name, but he had not used his clan's name in daily life after arrival in Hong Kong.  He explained that when he purchased the Property with his wife in December 1969, he wanted to use his clan's name to hold the Property, and therefore instructed his solicitors to use the name "Tai Chee Iu" in the title deed.  He also signed his name "Tai Chee Iu" in the relevant deed.  He declared that the names "Tai You" and "Tai Chee Iu" belonged and referred to the same person, namely himself.

8. In the 3rd Declaration, Wong declared that she married Tai You, holder of Hong Kong Identity Card No. xxxxxx, in Hong Kong in 1968, and that at the time of marriage she knew that Tai You had another name, namely "Tai Chee Iu", as his clan's name. She declared that when she purchased the Property with Tai You in December 1969, she knew that Tai You had instructed his solicitors to use his name "Tai Chee Iu" in the title deed, and when the relevant deed was signed, she had seen Tai You sign in the name "Tai Chee Iu".

The Issue

9. The parties failed to reach agreement on whether the requisitions on the identity of Tai have been answered.  The issue for determination by the court is whether Tai and Wong had satisfactorily answered Li's requisitions on title with regard to Tai's name, and whether Tai and Wong have shown and given good title to the Property.

Legal Principles

10. Tai and Wong, as vendors, do not dispute that they have to show a good title to the Property and that Li is entitled to demand reasonable proof to satisfy himself beyond reasonable doubt that good title has been shown. They accept that as held in Lam Kin I v. Tsui Ming Yee [1989-91] CPR 561, what was necessary was "proper conveyancing evidence" which would satisfy Li, and any other purchaser from him, that the title to the Property was a good one.

11. Whilst it is true, as Counsel for Li has pointed out, that Lam Kin I concerned differences in signatures appearing in the documents, and the court pointed out in that case that circumstantial evidence is not sufficient, the late Godfrey,J (as he then was) clearly pointed out in his judgment that what he referred to as "proper conveyancing evidence" was a statutory declaration by a person, able to declare the truth of the facts stated, that the two signatories were one and the same person, and that "the best evidence" would be a statutory declaration from the signatory himself to that effect.

12. The other case relied upon by Tai and Wong, Lai May Hing v. Lai Sai Fuk [1999] 2 HKC 464, is directly on the point in issue.  The case concerned 2 different names contained in 2 different assignments.  In the first assignment, the flat in question was assigned to Thung Siua.  In the second assignment, the assignor was stated as a Dewi Mirahwati Thung, formerly known as Thung Siua.  Requisitions were raised as to the disparities in the name and the passport numbers of the vendor.  Cheung, J (as he then was) pointed out in his judgment that the real dispute is whether the names of Thung Siua and Dewi Mirahwati Thung refer to one and the same person, and that if the second assignment recites that Dewi Mirahwati Thung is formerly known as Thung Siua, then the requisition is to be answered by a deed poll or a statutory declaration by Thung Siua or some other person that Thung Siua and Dewi Mirahwati Thung are the same person, referring to the "proper conveyancing evidence" of a statutory declaration mentioned by Godfrey, J in Lam Kin I.

13. From the authorities, I am satisfied that the 1st Declaration and the 2nd Declaration of Tai and the 3rd Declaration of Wong constitute the "proper conveyancing evidence", if not the best evidence, required to answer the requisitions as to whether Tai You and Tai Chee Iu refer to one and the same person.

14. Counsel for Li argued that no weight should be attached to the declarations from Tai and Wong, as they are husband and wife and are interested parties in these proceedings.  Having considered the decisions in  G. B. Industries Ltd. v. Yu Chung Kwok, MP 1060 of 1994, 7 June 1994 and In The Estate of Leung Wai Fong, HCAG 5395/2004, 14 February 2006 I consider that I can have regard to Tai's 1st and 2nd Declarations and to Wong's 3rd Declaration and accept them as reasonable proof of the identity of Tai.

15. Counsel for Tai and Wong referred also to other circumstantial evidence in support of the statutory declarations provided by Tai.  Both Tai and Wong have given, in the Agreement, as their address the same address stated for Tai You in the 1969 Assignment.

16. I accept the submission made by Counsel for Tai and Wong that the evidence that is required to put identity and therefore title beyond reasonable doubt is generally less where a name was used in one document and the name together with an alias was used in another document in the chain (Chudai (HK) Development Company Ltd. v. Portia International Ltd. [1992] 1 HKLR 350 and Choi Hung Investment Co. Ltd. v. Chinco Investment  Ltd. [1995] 1 HKC 203).

17. Counsel for Li sought to argue that the name "Tai Chee Iu" only appeared in the 1969 Assignment without any aliases, and that in the other relevant documents of title, "Tai You" or "Dai You” was used.  In my judgment, the most important documents should be the 1969 Assignment from Leung Wai Hing to Wong and Tai Chee Iu as assignee, and the Agreement in July 2007, and the question to ask is: "is there a reasonable doubt cast in respect of whether Tai Chee Iu who took the assignment of the Property in December 1969 was the same as the person Tai Chee Iu alias Tai You who now purports to assign the Property in July 2007 to Li ?"  On the evidence, I consider that the answer is no.

818. I grant the declarations sought by Tai and Wong in terms of the Originating Summons dated 25 February 2008.  I also make an order nisi that the costs of these proceedings are to be borne by Li, with Certificate for Counsel, to be taxed if not agreed.