NGAI KIN LIT v. TO CHAI FOOK

1997, No.MP 2178

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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 Plaintiff Vendor of land known as 1/8 share of and in Section B of Lot No.679 in Demarcation District No.132, Tuen Mun ("the Land"). The Plaintiff entered into a Sale and Purchase Agreement ("the Agreement") with the Defendant Purchaser and on 24 May 1997, the Defendant raised a requisition on the Plaintiff's title to the Land. For the purposes of the present application, the only issue is whether the requisition was sufficiently answered.

2. The requisition raised is in the following terms :

"We note that by Division of Property Memorial No.73183 the properties belonged to Tse Kan Fuk, Tse Nam Mau and Tse Wang Fung were divided amongst (i) Tse Kan Fuk (ii) Tse Nam Mau (iii) Tse Wang Fung (iv) Tse Sham Tong, Tse Kan Fuk, Tse Wang Fung, Tse Kwong Tai, Tse Nam Mau. However, Tse Nam Mau one of the original owners did not sign the said Division of Property. We take the view that in the absence of the signing of the said Tse Nam Mau, the said Division of Property was and is invalid. Kindly rectify the same." (emphasis added)

3. The Land was held under a lease granted to one Tse Ng Kau. It appears from a Succession to Property Memorial No.73182 that on Tse Ng Kau's death, Tse Kan Fuk, Tse Nam Mau and Tse Wang Fung succeeded to numerous lots in the New Territories that had been vested in Tse Ng Kau including the Land. The date of the instrument relating to the Succession to Property is 18 June 1929 which was also the date the Memorial was registered.

4. There is another memorial of the same date (Memorial No.73183) of an instrument whose nature and object were described as "Division of Property" affecting the same lots as those set out in the Succession to Property Memorial but which had devolved on the three successors, namely Tse Kan Fuk, Tse Nam Mau and Tse Wang Fung. The tenor of the Division of Property Memorial is that these lots were divided in accordance with the lists attached to the Memorial. It is also apparent from the lists attached to the Memorial that the lots were divided not only amongst the three successors but also one Tse Sham Tong. The Land formed part of the lots allotted to and listed under Tse Nam Mau's name. This Memorial was signed by all the parties apart from Tse Nam Mau.

5. It is common ground that under the terms of the Agreement, the obligation of the Plaintiff was to produce a certified copy of the Crown Lease or Crown Grant together with proof of title to the Land extending not less than 15 years before the date of the Agreement. The Agreement itself is dated 22 May 1997. It is apparent from the land search records that the Land was first registered in 1978 under a conveyance on sale. That document is thus the root of title for the purposes of section 13 of the Conveyancing and Property Ordinance. The present requisition therefore relates to an instrument that is part of the pre-intermediate root of title. The point raised in the requisition is simply that the absence of the signature rendered the Memorial ineffective.

6. Before me, the case was put on slightly different footing. Counsel for the Purchaser made the point that as both the Succession to Property Memorial and the Divisional of Property Memorial were dated 18 June 1929 and both were registered on the same day, the absence of Tse Nam Mau's signature from the Memorials would lead to some doubt as to whether or not instruments of which the Memorials were intended to describe actually existed or whether Tse Nam Mau actually executed them.

7. Counsel for the Plaintiff submitted that it is too late to query the existence of the other instruments as that was not how the original requisition was framed. I agree. Carried to its logical conclusion, the Defendant's position must be that Tse Nam Mau was not one of the successors, not having signed the Succession to Property Memorial. But that was not how the requisition was framed nor is it the Defendant's case as set out in his counsel's written submissions.

8. I think the short answer to the question raised lies in the nature of a memorial. The memorial is a means of providing secondary evidence of the matters contained in the instrument to which it relates when, as here, the instrument itself is lost. As Ching J.A. put it inLo Hung Biu v. Lo Shea Chung & Li Hoi Sing (unreported), Civ.App.No.258 of 1996 :

"A Memorial conveys or assigns nothing. It is the Conveyance on Sale or the assignment which conveys."

In Kok Yun Kuen v. Au Yeung Bik Tai & Lo Hung Pui, M.P. No.2021 of 1991, Godfrey J. (as he then was) observed that :

"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."

See also his earlier decision in Lai Chung Yue v. Chau Shing [1987] 3 HKC 406.

9. Under the Land Registration Ordinance, Cap.128, First Schedule, paragraph 6, a memorial need only be signed by "some or one of the parties to the original instrument". So in order for a memorial to be valid, it does not require the signature of all the parties to the instrument. See Lo Hung Biu v. Lo Shea Chung (supra) at p.6. On this point, the Plaintiff is plainly right.

10. There is no doubt but that the Division of Property Memorial is valid and affords sufficient secondary evidence of the contents of the Deed which was the instrument that effected the division of property amongst the three successors as well as Tse Sham Tong. The absence of Tse Nam Mau's signature in the Division of Property Memorial did not render the Memorial invalid and did not have the effect of rendering inoperative the instrument that actually effectuated the division, the contents of which are evidenced by the Memorial.

11. For these reasons, there can be no doubt that the Land became vested in Tse Nam Mau by the instrument i.e. the Division of Property described in Memorial No.73183.

12. As a subsidiary point, counsel for the Plaintiff submitted that in fact after the date of the division of property, Tse Nam Mau had dealt with the several lots vested in him by that instrument as owner. There is evidence of a mortgage and subsequent redemption affecting, inter alia, the Land as well as a sale in 1930 of other land vested in him by the Division of Property. Having regard to these matters, there is absolutely no risk that anyone could now come along and assert that Tse Nam Mau was not the owner of the Land or that the Vendor's title is defective.

13. The Originating Summons before me seeks declarations and I will make a declaration to the effect that good title to the Land has been shown in accordance with the provisions of the Sale and Purchase Agreement. I will make an order for costs in favour of the Plaintiff.