EDMUND W.H. CHOW & CO., A FIRM AND ANOTHER v. THE LAND REGISTRAR

HCAL 450/2023

[2023] HKCFI 1269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 450 OF 2023

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D E C I S I O N

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A. Introduction

1.  This judicial review application raises a discrete legal question on whether the Land Registrar is entitled to withhold registration of an assignment based on her view that the vendor may not (or did not) have the capacity and authority to assign what the assignment on its face sets out to assign to the purchaser.

2.  The question arises in the context of the rather settled jurisprudence regarding the land registration regime in force in Hong Kong, and the following facts.

3.  By a sale and purchase agreement dated 12 January 2022 (“2022 SPA”) and an assignment dated 18 March 2022 (“2022 Assignment”), the vendor (“Hui Junior”) sold a property (“Flat”) to the 2^nd Applicant purchaser (“Purchaser”).  The 1^st Applicant law firm (“Solicitors”) represented the Purchaser in the conveyancing transaction.

4.  The Flat is a unit in a multi-storey building and is legally identified as some undivided shares in a particular lot of land.  The number of undivided shares is stated to be 1/300.  The purchase was financed by a mortgage loan offered by a bank executed through a set of usual mortgage documents (“Mortgage Documents”) dated the same date as the 2022 Assignment.

5.  The 2022 SPA and its memorial (“SPA Memorial”) were successfully registered in the Land Registry on 19 January 2022.

6.  However, when the Applicants lodged the 2022 Assignment and the Mortgage Documents for registration on 29 March 2022, these instruments were withheld from registration by the Land Registrar and have since remained unregistered.

7.  Broadly stated, the Registrar’s basis for withholding registration is that the particulars contained in the memorial of the 2022 Assignment (“2022 Memorial”) are inaccurate.  The inaccuracy is said to lie in that the 2022 Memorial shows that the land affected by the assignment is the whole of the 1/300 undivided share in the Flat but the Registrar is of the view that Hui Junior only had 50% of that 1/300 undivided share to sell to the Purchaser.

8.  From April 2022 to March 2023, the Solicitors engaged in numerous rounds of correspondence with the Land Registrar, attempting to convince the latter to register the instruments.  The Solicitors fought the battle at two fronts.  On the one hand, they argued that Hui Junior did have 100% share in the Flat to sell.  On the other hand, they argued that the Land Registrar was legally obliged to register the instruments regardless of whether Hui Junior had good title in the Flat to be assigned to the Purchaser under the 2022 Assignment.  The Solicitors’ efforts were in vain.

9.  On 22 March 2023, the Applicants applied for leave to challenge by way of judicial review the decision (“Decision”) of the Land Registrar said to be contained in two letters dated 29 November 2022 and 17 February 2023 respectively (“29/11/22 Letter” and “17/02/23 Letter”).  These two letters were amongst the various correspondence issued by the Land Registrar to the Solicitors.

10.  I directed a rolled-up hearing which was heard on 10 May 2023.  The Applicants were represented by Mr Nicholas Cooney SC, leading Mr Peter KM Chong of Counsel.  The Land Registrar was represented by Ms Catrina Lam of Counsel.  Hui Junior did not appear, but indicated after being served with the application that he would not oppose it.

11.  This is my reserved Decision.

B.  Land Registration Statutory Regime in Hong Kong

12.  The registration of instruments affecting land is governed by the Land Registration Ordinance, Cap 128 (“LRO”).  Its long title is as follows:

To provide for the registration of deeds, conveyances, judgments and other instruments affecting real or immovable property, the keeping of Land Registry records, and for other matters relating to land registration.

13.  It also has a Preamble, to which particular reference has been made on behalf of the Registrar in argument, and which is as follows:

Whereas it is expedient to prevent secret and fraudulent conveyances, and to provide means whereby the title to real and immovable property may be easily traced and ascertained:

14.  It is then convenient to mention section 2(1) in the part of the LRO headed ‘Registration of Instruments Affecting Land’, and which provides as follows:

2.  Establishment of Land Registry for registration of instruments affecting land

(1)  The Land Registry shall be a public office for the registration of deeds, conveyances, and other instruments in writing, and judgments; and all deeds, conveyances, and other instruments in writing, and all judgments, by which deeds, conveyances and other instruments in writing, and judgments, any parcels of ground, tenements, or premises in Hong Kong may be affected, may be entered and registered in the said office in the prescribed manner.

15.  There can be no dispute that the purpose of the LRO is to provide a framework for registration of instruments so as to prevent secret and fraudulent conveyances by way of an open instruments registration system, so that title may be easily traced and ascertained.  But, it can also not be disputed that this is not a system of land or title registration; it is a system for the registration of instruments affecting land.  Title issues, if they arise, are matters to be raised by the parties interested in the relevant land and, if necessary, determined by the Court.

16.  However, the starting point to answering the question posed at the beginning of this Decision is to be found in section 23(1) of the LRO.  It provides as follows:

23.  Obligation of Land Registrar to register

(1)  Subject to subsection (2), the Land Registrar shall register, in the manner prescribed by or under this Ordinance, any deed, conveyance or other instrument in writing, or judgement if, but only if, he is satisfied that-

(a)  the deed, conveyance or other instrument in writing, or judgement, may be, or is under any other Ordinance required to be, register under this Ordinance;

(b)  the provisions of this Ordinance and of any regulations made thereunder, and of any other Ordinance relating to the registration of an instrument under this Ordinance are complied with; and

(c)  the prescribed fees have been paid.

17.  Hence, the Land Registrar shall register an instrument if she is satisfied that the three requirement laid down in section 23(1)(a), (b) and (c) are met:

(1)  Section 23(1)(a) requires the instrument to be – as it is usually described – “registrable”.  Whether an instrument is registrable is provided under section 2.  For the present purpose, it is sufficient to note that an instrument is registrable if it may affect land.

(2)  Section 23(1)(b) requires compliance with all statutory requirements relating to registration.

(3)  Section 23(1)(c) is self-explanatory as regards payment of fees.

18.  The key to the present dispute is section 23(1)(b), and the relevant statutory requirements which are to be found in the Land Registration Regulations, Cap 128A (“LRR”) – the compliance with which the Land Registrar was not satisfied.

19.  Broadly speaking, the relevant provisions in LRR run as follows:

(1)  Regulation 5(1) requires that an instrument must be accompanied by a memorial of that instrument when delivered for registration.

(2)  Regulation 6(1) sets out the particulars of that instrument which the memorial has to contain, except for a memorial of lis pendens the particulars of which are provided in regulation 6(2).

(3)  Regulation 7 requires a memorial to be verified by a competent person.

(4)  Regulation 13 provides that the Registrar shall scrutinize every instrument delivered for registration to ensure that the particulars required by regulation 6 are accurately contained in the memorial.

(5)  Regulation 14 provides that the Registrar shall proceed to register the instrument as soon as practicable in accordance with the procedures set out therein, unless (s)he is to withhold registration under regulation 15.

(6)  Regulation 15 provides that the Registrar may withhold registration if (s)he is not satisfied that section 23 of the LRO has been met or that the person who delivered the instrument for registration has requested for withholding.

20.  The material detail of the provisions in regulations 5(1), 6(1), 13, 14, and 15(1) are set out for convenience, as follows:

5.  Delivery and form of memorial

(1)  Registration of the instrument under the Ordinance shall be effected by delivering into the Land Registry that instrument together with the memorial thereof in the form specified and provided by the land Registry and by compliance with the Ordinance and these regulations.

6.  Particulars to be contained in memorial

(1)  Subject to paragraph (2), a memorial shall contain the following particulars-

(a)  the date of the instrument;

(b)  the nature and objects thereof;

(c)  the names (including the names in the Chinese language if known) of the parties or other relevant persons and their respective shares in, and capacities in relation to, the land and premises affected or intended to be affected;

(d)  a description of the land and premises affected or intended to be affected, including the lots number and address (including the address in the Chinese language if known);

(e)  the consideration (if any);

(ea)  the undivided shares in the land (if any);

(eb)  the Property Reference Number (if any) for the land and premises to which the instrument relates;

(f)  the memorial number of—

(i)    any the mortgage or charge being reassigned or discharged;

(ii)   any agreement being cancelled or the right under which    have been assigned;

(iii)  any lease, sublease or tenancy agreement being cancelled, surrendered or assigned:

(vi)  any agreement pursuant to which the assignment the subject of the memorial has been effected; and

(v)   any other instrument being discharged, cancelled or otherwise satisfied by the instrument the subject of the memorial;

(fa)  immediately before the number of the memorial as specified in subparagraph (f), the district code identifier for the land and premises to which the instrument relates, if, and only if, the memorial concerned were delivered into the Land Registry before the commencement of this paragraph; and

(g)  the solicitors code.

13.  Scrutiny of instrument and memorial

The Land Registrar shall scrutinise every instrument delivered for registration and the memorial thereof, and shall ensure that the particulars required by regulation 6 accurately contained in the memorial.

14.  Procedural where memorial complies with regulations

(1)  Subject to regulation 15, the Land Registrar shall in respect of every memorial, as soon as practicable enter the following particulars on a portion of the record of a register computer kept by him for the purpose of this regulation for the land and premises affected by the instrument to which the memorial relates, that is to say –

(a)  the memorial number;

(b)  the date of the instrument to which the memorial relates;

(c)  the date of registration;

(d)  the consideration (if any);

(e)  the name or names of the party or parties in whose favour the instrument is made:

(f)  in the case of an instrument particulars of which are entered as an encumbrance, the nature of the instrument; and

(g)  any other matters that may seem to the Land Registrar to be relevant.

(2)  When the requirements of paragraph (1) have been complied with the Land Registrar shall sign the certificate of registration on the instrument or have his printed signature on the certificate of registration affixed to the instrument, whereupon registration shall be deemed to be completed, and the instrument together with the memorial thereof shall then be recorded by him on 16 mm black and white microfilm or by the imaging method.

15.  Procedure where instrument is withheld from registration

(1)  Where, in respect of any memorial, plan or instrument delivered for registration, either-

(a)  the Land Registrar is not satisfied as to any of the matters specified in section 23 of the Ordinance; or

(b)  the person who so delivered the instrument requests the Land Registrar to do so,

the Land Registrar shall withhold the instrument from registration.

21.  As already mentioned, regulation 7 is also of note.  It requires every memorial to be verified by a competent person, which will usually be a solicitor:

7.  Verification of memorial

Every memorial shall be verified-

(a)  by the oath of some competent person taken before a Commissioner for oaths:

(b)  by the certificate of a solicitor;

(c)  where the memorial has been prepared in the Land Registry for a department of the Government, by the certificate of the Land Registrar;

(d)  where the memorial has been prepared by a Government department and relates to instrument which arises from or is related to the performance of the functions of that department, by the certificate of a public officer authorised by the head of the department for this purpose; or

(e)  by the certificate of a person authorised for this purpose by the Chief Justice,

in such form, respectively, as the Land Registrar may specify or approve.

22.  The Registrar has specified a form for the memorial in accordance with regulation 5.  The form is headed “MEMORIAL of an instrument to be registered in the Land Registry under the Land Registration Ordinance”.  The particulars to be filled in on the form are those listed under regulation 6 (where each required particular can be matched to a box or field on the form).  At the end of the form, there is a certification statement as required under regulation 7 where the solicitor has to sign to certify that the foregoing memorial contains a

just and true account of the several particulars therein set forth as required with the Land Registration Regulations.

23.  Before leaving the statutory regime, reference can also be made to section 23A, which materially provides as follows:

23A.    Liability of Land Registrar and others

If the Land Registrar or any other person employed in the Land Registry wilfully or negligently fails to comply with section 23, he shall be liable for any loss or damage thereby caused, but he shall not be liable in damages –

(a)  for registering, in good faith, any deed, conveyance or other instrument in writing, or judgment, notwithstanding any error, omission or defect therein;

24.  Hence, the Land Registrar will be liable for any loss or damage caused by a wilful or negligent failure to comply with section 23. But there will be no liability in damages for registering an instrument in good faith, even if that instrument has any error, omission or defect in it.

C.  The Land Registrar’s basis to withhold registration

25.  The Land Registrar’s basis for withholding registration is undisputed.  As already set out at the beginning, she at least doubted Hui Junior’s authority and capacity to assign the whole of the Flat, the subject property of the 2022 Assignment.

26.  Strictly, it may not be necessary to delve further into why the Registrar would have the doubt she did.  But, as will be seen below, the parties seemed to diverge on the characterisation or nature of the doubt, even though what the doubt was is beyond question.  Thus, it may be helpful to set out in more detail the correspondence between the Registrar and the Solicitors, where the Registrar expressed her doubt in fuller terms.

27.  To understand the Registrar’s doubt, it is necessary to go back to the transactions prior to the 2022 Assignment.

28.  In 1975, the father of Hui Junior (“Hui Senior”) obtained 100% ownership of the Flat.

29.  By an assignment executed in 1996 (“1996 Assignment”), Hui Senior, as vendor, assigned the Flat or part of it to Hui Junior, as purchaser.  From the phrasing of the previous sentence, it can be guessed that the 1996 Assignment was the source of the current dispute.  The operating part of the assignment reads (sic) (emphasis added by underlining):

…the Vendor has agreed with the purchaser for the sale half property of the land described in the Schedule hereto (“the Property”) to the Purchaser for HK$600,000.00.

In consideration of HONG KONG DOLLARS SIX HUNDRED THOUSAND ONLY (HK$600,000.00) paid by the Purchaser to the Vendor (receipt whereof is hereby acknowledged by the Vendor) the Vendor as Beneficial Owner ASSIGNS to the Purchaser the Property TO HOLD the same unto the Vendor and the Purchaser as Joint Tenants for the residue of the term of years created by the Crown Lease…

30.  I am not called upon by either party to adjudicate on the legal effect of the 1996 Assignment.  But it might be fair to note that a conveyancing lawyer may not find the 1996 Assignment easy to read.  The Land Registrar herself described, in her subsequent correspondence with the Applicants, the second clause underlined above as “contradictory”.

31.  Without passing further comment, it can be noted that only Hui Junior is defined as the “Purchaser” and yet the assignment sought to result in the father and son holding the “Property” together as “Joint Tenants”.  “Property” is defined in the schedule as “ALL THAT one moiety half part or share of and in ALL THAT one equal undivided 300^th part of share of and in [the relevant lot of land]”.  In ordinary language, what was assigned in the 1996 Assignment appeared to be half of the 1/300 undivided shares in the Flat rather than the whole of the 1/300 undivided shares.

32.  In any event, the 1996 Assignment and its memorial (“1996 Memorial”) were registered in the same year the assignment was executed.  In the 1996 Memorial dated 28 November 1996, Hui senior is stated as the vendor; Hui Junior is stated as the purchaser; and the undivided share in the land is stated to be “1/2 of 1/300^th”.  These particulars are but how “Vendor”, “Purchaser” and “Property” are defined in the 1996 Assignment.

33.  Notably, on the 1996 Memorial, there is also a remark that “the vendor and the purchaser hold the property as joint tenants”.  This remark tracks the second clause I have underlined above from the 1996 Assignment.

34.  Without engaging in a discussion on the meaning of “accurately” under regulation 13 at this juncture, it can be observed that the Land Registrar must have been satisfied that the particulars in the 1996 Memorial are accurate or else the instrument and its memorial would not have been registered.

35.  Hui Senior passed away in December 2020.  When the solicitor submitted the death certificate and its memorial (“DC Memorial”) for registration in March 2021, they were returned for clarification.  In that memorial, the undivided shares were stated to be 1/300.  In April 2021, the solicitor received a note from the Land Registry Scrutineer.  The note said:

According to our land records ([the assignment number of the 1996 Assignment]), [Hui Senior] (the Deceased) and [Hui Junior] hold the Property (1/2 of and in 1/300, defined in the First Schedule of the Assignment) as Joint Tenants.  Please clarify the undivided shares stated in the subject memorial.

36.  The solicitor then amended the DC Memorial for re-submission.  The undivided shares were amended from “1/300” to “½ of 1/300”.  Hui Senior’s “respective shares in, and capacity in relation to, the premises” – a field which was previously left blank – was also amended to state “one of joint tenants”.  The DC Memorial as amended was then registered.

37.  Then followed the transaction underlying the 2022 Assignment.  As said, the 2022 SPA and the SPA Memorial were registered successfully, but the 2022 Assignment and the 2022 Memorial were withheld from registration.  The relevant particulars filled in the SPA Memorial and the 2022 Memorial are identical, including that the undivided shares in the land are identified as “1/300”.

38.  By a note dated 7 April 2022 issued by a Land Registry Scrutineer, the Applicants were informed that the 2022 Assignment and its memorial were withheld from registration:

Please complete, amend or add as indicated below:-

(1)  According to our land records, [Hui Senior] and [Hui Junior] acquired the property vide [the 1975 Memorial number] and [the 1996 Memorial number].

(2)  It is noted that a certified copy of death certificate of [Hui Senior] [DC Memorial number] has been registered against 1/2 share of the Property only.

(3)  Please clarify the share of the Property affected in the subject assignment.

(4)  Please clarify whether the subject assignment satisfies [the SPA][SPA Memorial number] in the “transaction satisfied” box of the Memorial.

(5)  The subject assignment is withheld from registration and returned for your clarification.

39.  What then followed was a series of correspondence between the Solicitors and the Land Registrar on whether Hui Junior owned the entirety of the 1/300 undivided shares or only half of it.

40.  By letter dated 20 June 2022, the Solicitors argued that Hui Junior had obtained a half interest in the Flat by virtue of the 1996 Assignment and the 1996 Assignment also operated to the effect that the father and the son “merged their interest to ‘Joint Tenants’”.  The Solicitors then argued that, as a result, Hui Junior became solely entitled to the Flat when Hui Senior passed away.

41.  By a letter dated the 24 August 2022, the Land Registrar in effect said that the father and son could not have held the Flat in joint tenancy because they obtained their respective interest at different times and through different instruments – the 1975 Assignment versus the 1996 Assignment – thus flouting the principle of four unities. Rather, they held their respective interests as tenants in common and the father’s half share in the Flat should be vested in the executor or administrator of his estate upon his passing away.  Hui Junior, the son, was therefore only entitled to assign his own half share in the Flat to the Purchaser under the 2022 Assignment.

42.  By two letters dated 30 August 2022 and 8 November 2022 respectively, the Solicitors raised three points:

(1)  First, the 1996 Assignment referenced “to hold the Property unto the Vendor and the Purchaser as Joint Tenants…” and such wording clearly showed the intention of the father and son to derive their interests in joint tenancy from the 1996 Assignment.

(2)  Second, the Land Registrar had already accepted the legal effect of the 1996 Assignment the registration of which in the land search record is accompanied by the remark of “[Hui Senior] and [Hui Junior] hold the property as joint tenants. [Hui Senior] died see [DC Memorial].”

(3)  Third, under section 23 of the Land Registration Ordinance the Land Registrar is obliged to register documents submitted for registration against the Flat.

43.  The Land Registrar’s substantive reply to the three points were to be found in the 29/11/2022 Letter, one of the two letters the target of this judicial review:

(1)  The Land Registrar reiterated that the father obtained his half interest from the 1975 Assignment and the son from the 1996 Assignment. Thus, they did not hold their interests as joint tenants, but as tenants in common since the 1996 Assignment.

(2)  In respect of the second point, the Land Registrar said that

… registration of an instrument with the Land Registry under the Land Registration Ordinance (Cap 128) would not, in any event, operate to perfect or confer any title or land interests in land.  Nor would the acceptance for registration of an instrument by the Land Registry constitute an indication, endorsement or approval as to the validity or the legal effect of any such instrument.

(3)  For the third point, it was replied that

According to regulation 13 of the Land Registration Regulations (Cap 128A) (“LRR”), the Land Registrar shall scrutinise every instrument delivered for registration and a memorial thereof, and shall ensure that the particulars required by the regulation 6 are accurately contained in the Memorial.  According to regulation 6(1)(d) and (ea) of the LRR, the particulars to be contained in a memorial shall include, among others, (i) a description of the land and premises affected or intended to be affected; and (ii) the undivided shares in the land (if any).  Thus, the land and interest affected by the subject Assignment i.e. [Hui Junior’s] estate, right, title and interest of and in the said 1/300^th equal undivided share should be accurately reflected in the memorial.  The subject instruments are withheld from registration for your clarification and further action.

44.  In passing, I would note that the response to the second point is obviously correct.  But, as will be seen below, the very fact that it must be recognised that (1) registration of an instrument cannot perfect or confer title and (2) acceptance for registration of an instrument by the Land Registry does not constitute any indication, endorsement or approval as to the validity of the legal effect of any such instrument, tends strongly to suggest that the Registrar is simply not concerned with those questions when scrutinising for registration.  I would also note that the response to the third point in effect merely begs the question as to what are the proper “particulars” to be contained in a memorial.

45.  By letters dated 7 December 2022 and 6 February 2023 respectively, the Solicitors reiterated their position on Hui Junior’s title with reference to a number of case authorities.  In respect of the Land Registrar’s obligation to register, it was underscored that Hong Kong adopts a document registration system and not a title registration system.  It was also said that what the Land Registrar did was tantamount to determining the legal effect of the 1996 Assignment and investigating whether Hui Junior had the necessary title to effect the 2022 Assignment, neither of which were the Land Registrar’s proper roles.  Further, in meeting her obligation under regulations 6 and 13 of the LRR to ensure accuracy of the particulars filled in the memorial, the Land Registrar is not obliged or empowered to look beyond the specific instrument lodged for registration.

46.  Then followed the other letter the target of this judicial review application, i.e. the 17/2/2023 Letter.  The Land Registrar sought to distinguish the case authorities relied upon by the Solicitors and maintained the position that the 1996 Assignment did not operate to make the father and son joint tenants of the Flat.  Reference was made to the operative part of the 1996 Assignment which I have quoted above – “the Vendor as Beneficial Owner ASSIGN to the Purchaser the Property to hold the same unto the Vendor and the Purchaser as Joint Tenants” – and the Registrar said that the first part and the second part of the sentence are contradictory and the parties’ true intention was unclear.  The concluding remark on this point is that Hui Junior does not appear to have the capacity or authority to assign the whole of the Flat to the Purchaser under the 2022 Assignment.

47.  In respect of her obligation to register an instrument under the LRO, the Land Registrar referred to section 23(1)(b) that if she is not satisfied that the provisions of the LRO or any regulations have been complied with, she is not obliged to register such instrument.  It is said that:

While the LR is not in a position to express its view or confirm on the land holding status between parties of a property, should the LR find that there may be doubts in an instrument lodged for registration as to an owner’s capacity or authority to assign the property mentioned therein, the LR may, in order to fulfil the purpose of the LRO, raise requisitions on such doubt, consider the arguments/evidence of the lodging parties before deciding whether or not to accept such instrument for registration.

As mentioned above, the LR has doubt as to the capacity and authority of [Hui Senior] to assign whole of the [Flat] to [the Purchaser] under [the 2022 Assignment].  As such, the Land Registrar is not obliged to register the subject instruments under the LRO unless and until requisitions on such doubts have been satisfactorily dealt with.

48.  It is abundantly clear from the correspondence that the “particular” which the Registrar considered as inaccurate or of doubtful accuracy is stating “1/300” as the number of undivided shares (“Disputed Particular”).  This is also confirmed in Ms Lam’s written submissions.  It is more than tolerably clear that the Registrar’s view was that the accurate description should be “1/2 of 1/300” rather than “1/300”, on the basis that Hui Junior did not have the whole of Flat but only half of it to assign to the Purchaser.  The Registrar thought it inaccurate to suggest that the land affected by the 2022 Assignment was the whole of the 1/300 undivided shares.

49.  The problem arising from that way of thinking is that the parties to the 2022 Assignment obviously thought they were transacting the whole of the 1/300 undivided shares, and that is what the 2022 Assignment says.

D.  Has the Land Registrar acted illegally/ultra vires?

50.  Mr Cooney SC, on behalf of the Applicants, advances a single ground of review – that the Registrar’s Decision to withhold registration is illegal as being ultra vires.

51.  Despite the length of the discussion and analysis which follows, I think that the answer to that single ground of review – and hence to the question posed the beginning of this Decision – is actually straightforward.

52.  Mr Cooney’s analysis starts with section 23 of the LRO, under which the Land Registrar must register the instrument if she is satisfied as to the matters set out in section 23(1)(a), (b) and (c). On the flip side, the Land Registrar could only withhold registration if she is not satisfied that all the three requirements set out section 23(1) have been met.  In other words, she cannot withhold registration on any basis outside the provisions of section 23.  Mr Cooney says that all the three requirements were met and, thus, the Land Registrar was obliged under section 23 to register the 2022 Assignment.  He says the statute has provided no power for the Land Registrar to withhold registration on the basis of doubt as to the vendor’s capacity to sell, which is but another way to say that the vendor did or might not have good title to the Flat.  Hence, what the Land Registrar did was illegal.

53.  Ms Lam, on behalf of the Land Registrar, does not dispute that the legal basis for the Land Registrar to withhold registration has to be found in section 23.  There is no dispute that the registrability requirement under section 23(1)(a) and the payment requirement under section 23(1)(c) have been satisfied.  But she says the Land Registrar was entitled to rely on section 23(1)(b) to withhold registration.

54.  As noted, section 23(1)(b) requires compliance with the LRO, the LRR and any other Ordinance relating to the registration of an instrument under the LRO.  Mr Cooney says, to succeed, the Land Registrar has to point to a specific provision, either in the LRO, the LRR or any other Ordinance relating to registration of an instrument, the compliance with which the Land Registrar is not satisfied.  Ms Lam does not dispute that the Land Registrar has to point to a specific statutory provision the compliance with which she is not satisfied.  But Ms Lam argues, as has already been pointed out by the Registrar in her correspondence, that regulations 6 and 13 of the LRR had not been complied with in this case.  The Land Registrar was not satisfied that the Disputed Particular was accurate, because it was inaccurate to state the undivided shares affected as “1/300” (as opposed to “1/2 of 1/300”).

55.  Pausing here, it can be noted that “1/2” could not be a reference to the number of undivided shares in the Flat, but a reference to Hui Junior’s share in whatever number of undivided shares the Flat had in the relevant lot of land.  The number of undivided shares allocated to the Flat would remain as 1/300 regardless of whether Hui Junior owned the whole or only half of it.

56.  Thus, the basis for including “1/2” could not be traced to regulation 6(ea) – “the undivided shares in the land (if any)” – but instead to regulation 6(c) – “the names… of the parties or other relevant persons and their respective shares in, and capacities in relation to, the land and premises affected or intended to be affected”.  This is also recognised by Ms Lam in her written submissions.  Indeed, in the form of memorial specified by the Land Registrar, there are fields that closely track the particulars in regulation 6(c), including a field for the parties’ “respective shares in, and capacities in relation to, the premises”.  But somehow that does not appear to be where the Registrar thinks the reference to “1/2” should be stated.

57.  Having identified regulation 6(c), it is still not entirely clear to me which particular among those listed was relied upon by the Registrar.  It appears that Ms Lam relies on “parties’… respective shares in the land and premises affected or intended to be affected”.  But I bear in mind that the Land Registrar’s reference to Hui Junior’s lack of authority and capacity may also speak to “parties’ capacities in relation to the land and premises affected or intended to be affected”.

58.  In any event, Mr Cooney argues the Disputed Particular as it now stands in the 2022 Memorial is actually accurate.  It is accurate to state that Hui Junior’s share in the land affected or intended to be affected was 100% rather than 50%, or that his capacity was as the sole owner of the 1/300 undivided shares.

59.  The disagreement between Mr Cooney and Ms Lam is thus a very narrow one: whether the Disputed Particular is “accurate”.  This turns on the meaning of “accurately” in regulation 13 as a matter of statutory construction.  I reproduce regulation 13 again for convenience:

The Land Registrar shall scrutinise every instrument delivered for registration and the memorial thereof, and shall ensure that the particulars required by regulation 6 are accurately contained in the memorial.

60.  From his written and oral submissions, Mr Cooney has three inter-related main points on what accuracy entails.

(1)  First, accuracy of a particular contained in the memorial is to be measured against what is stated in the instrument delivered for registration.

(2)  Second, by what is stated in the instrument, he means what is stated on the face of the instrument.  There is no need to determine whether, on a correct legal analysis, the instrument can actually affect title in land in the way or in the ways as might be suggested by the text on its face. There is no need to see whether the vendor has good title to assign, or to work out the actual legal effect of the instrument.

(3)  Third, there is also no need to look beyond the instrument delivered for registration, including other instruments or prior transactions.

61.  He says this construction (1) is supported by the plain text of the regulation 13 and (2) is dictated by the nature of the land registration regime in Hong Kong.

62.  The text of regulation 13 is indeed plain. Regulation 13 requires the Registrar to “ensure that the particulars required by regulation 6 are accurately contained in memorial”; and she is to achieve that by “scrutinis[ing] the instrument delivered for registration and the memorial thereof”.

63.  Mr Cooney says the accuracy of the particulars contained in the memorial has to be measured against the instrument (or, to use his words, “vis-à-vis the instrument”).  The particular contained in the memorial is accurate if it reflects what is stated in the instrument delivered for registration.

64.  Mr Cooney says it cannot be disputed that the particulars contained in the 2022 Memorial are an accurate reflection of what is stated in the 2022 Assignment.  The 2022 Assignment states that Hui Junior, as vendor, conveyed the whole of the 1/300 undivided shares to the Purchaser, and the 2022 Memorial states exactly that.

65.  He says regulation 13 has provided no power for the Land Registrar to scrutinize any other instruments (such as the 1996 Assignment) or to look into their legal effect.  It is simply unnecessary to do that in deciding if the particulars stated in the memorial are accurate.

66.  Whilst not put in such words, what Mr Cooney submits is that in determining the accuracy of the regulation 6 particulars, the Land Registrar only has to ensure that the particulars reflect the instrument on its face, without determining the real legal effect of that instrument.  In the case of an assignment, there is no need to determine if the vendor has good title to assign the subject property of the assignment.  It was not the function of the Registrar to investigate whether the vendor has good title to convey the whole of 1/300 undivided shares as he set out to do in the 2022 Assignment.  But, Mr Cooney says, that was exactly what the Registrar did, although phrased in the language of “authority and capacity to assign”.

67.  Mr Cooney says his proffered construction is also dictated by the nature of Hong Kong’s land registration regime.

68.  I have already referred to the long title and preamble of the LRO, and what they identify as the obvious purpose of the LRO, namely to prevent secret and fraudulent conveyances by way of providing an open instruments registration system so that the title may be easily traced.  I have also already referred to the fact that the registration regime in Hong Kong is not a system for registration of title, but for registration of instruments effecting land.

69.  Mr Cooney relies on the Court of Appeal’s decision in Tang Kam Cheung v The Land Registrar [2020] HKCA 891, at §21.  As can be seen from the case title, the reference to the Defendant in the quotation is a reference to the Land Registrar.  The decision is in Chinese, but the offered English translation of §21 is as follows:

21.  This law [referencing sections 23 and 23A of the LRO] is easy to understand.  The Defendant’s function is only to be responsible for recording and registering any instruments lodged by any person in the manner prescribed by the statute. The Defendant does not have the power and duty to determine whether the instrument effectively affects the title of the piece of land in law.  These functions belong to the judicial domain.  Under the Hong Kong system, only the courts can make a judicial decision on the title when the case is heard.

70.  Applying that to the present case, Mr Cooney says the Registrar has no power nor duty to determine whether the 2022 Assignment can effectively affect title in the 1/300 undivided shares.  The 2022 Memorial would be accurate as long as it faithfully records what is said in the 2022 Assignment, and whatever the Registrar was trying to do, that could not have been a regulation 13 exercise.  Accuracy does not hinge on whether the instrument can, as a matter of law, affect title as the instrument on its face sets out to do, and it does not matter not that, on correct legal analysis, the 2022 Assignment may fail to put into effect the assignment of the whole of 1/300 undivided shares.

71.  The nature of Hong Kong’s land registration system is indeed well-settled.  Registration does not create and has no effect on the creation of interests in land.  It merely acts as a record of transactions.  It can be said that the memorial is just the means of providing secondary evidence of the matters contained in instrument to which it relates (see further, below).  It conveys or assigns nothing.

72.  Indeed, as I have already referenced in passing, the Land Registrar herself has provided a very succinct summary in the 29/11/22 Letter, which is worth repeating:

Registration of an instrument with the Land Registry under the Land Registration Ordinance (Cap 128) would not, in any event, operates to perfect or confer any title or land interests in land.  Nor would the acceptance for registration of an instrument by the Land Registry constitute an indication, endorsement or approval as to the validity or the legal effect of any such instrument.

73.  However, Ms Lam says the Land Registrar relies on the implied power provided by regulation 13.  As a start, I think this must be seen as a concession that the express statutory text goes against the Land Registrar’s construction.

74.  Ms Lam submitted that it is implied in regulations 6 and 13 that, in order to ensure the particulars required by regulations are accurately contained in the memorial, the Land Registrar can at least consider other registered instruments and their memorials concerning the same property, as well as representations and issues raised by the lodging party.  But that argument seems to focus on the means by which the Land Registrar can ascertain the accuracy of the particulars, rather than the real issue as to what “accurately” under regulation 13 means.

75.  Ms Lam, on the one hand, rightly accepts that the Hong Kong registration system is one of instruments and not of title, and that the Land Registrar cannot determine title.  But, on the other hand, Ms Lam says the Land Registrar was entitled to withhold registration based on her doubt on the vendor’s authority and capacity to assign the 1/300 undivided shares.  But it is an insurmountable task to sever “good title” from the vendor’s “authority and capacity to assign”, for they are but two names for the same thing (at least for the purposes of this case).

76.  The correspondence set out above clearly shows that the Land Registrar’s doubt was whether Hui Junior had good title.  As stated in the 17/2/2023 Letter, the basis for withholding registration is that the Land Registrar has doubt as to Hui Junior’s “authority and capacity” to assign the whole of the 1/300 undivided shares to the Purchaser.  The lack of authority and capacity was said to have arisen from the “contradictory” drafting of the 1996 Assignment which failed to satisfy the Land Registrar that the instrument had made Hui Junior and his father joint tenants in the whole of the 1/300 undivided shares.  In context, the reference to “authority and capacity” is a synonym for “ability to pass good title” in the circumstances.  The Land Registrar was at least investigating – even if not determining – Hui Junior’s title.  That was the basis of her doubt.

77.  But, once it has been accepted that it is neither the role nor the function of the Land Registrar to investigate or determine title, or the legal effect of a conveyancing instrument, I see no escape from the conclusion that the Land Registrar was not entitled to withhold registration based on that doubt.

78.  In the course of the oral hearing, I also drew Ms Lam’s attention to the text of regulation 6(c): “their respective shares in, and capacities in relation to, the land and premises affected or intended to be affected”.  Similarly, regulation 6(d) refers to: “a description of the land and premises affected or intended to be affected”.  The legislature was well aware that the registered instrument may not be able to affect land in the way the instrument on its face intends to do, and express text has been deployed to reflect this legislative intent.  There can be no doubt what the parties to the 2022 Assignment intended, irrespective of whether or not it is able to assign 100% ownership in the Flat from Hui Junior to the Purchaser.  Ms Lam has no good answer to that.

79.  Indeed, if the doubt now cast by the Land Registrar is sufficient to make the Disputed Particular inaccurate within the meaning of regulation 13 and to justify withholding of registration, this seems to suggest that the Land Registrar must have been wrong in registering various earlier instruments, including the 2022 SPA by the SPA Memorial, which has the same information as the withheld 2022 Assignment.  (Indeed, even the 1996 Assignment, which contains a “contradictory” operative clause – to use the Registrar’s own word – was registered.)

80.  The question also arises how the Land Registrar’s doubt on Hui Junior’s “authority and capacity to assign” could be removed except by a court order.  Having established that the nature of the doubt concerns title, no one but the Court can determine title.  This is what leaves the parties to the 2022 Assignment in limbo, as Mr Cooney says.

81.  In her written submissions, Ms Lam seeks to highlight that there has been no attempt to urge Hui Junior to remedy his title defect.  Ms Lam suggests the Purchaser could raise requisitions and invite Hui Junior to take necessary measures to clarify title, or alternatively, the executor or administrator of Hui Senior’s estate could be added as vendor.  She says such steps could clear the Land Registrar’s dissatisfaction and to allow the registration to proceed.

82.  But, I do not think these submissions can assist Ms Lam:

(1)  First of all, this line of argument betrays the fact that the alleged inaccuracy in the Disputed Particular is really a title concern.

(2)  Second, it assumes that there is a title defect which has already been strenuously denied, as shown in the correspondence, and has not been raised as a concern by the parties to the transaction.

(3)  Third, even proceeding on the assumption that there is a title defect, it is difficult to see what steps could be taken by Hui Junior to clarify his title in a way which could meet the Registrar’s satisfaction, falling short of obtaining a court order.

(4)  Fourth, asking the estate of Hui Senior to be joined as the vendor is to scrap the 2022 Assignment as it now stands and to create an entirely new transaction with new instruments.  That is not the same as removing doubt about the 2022 Assignment.

(5)  Lastly, a party may willingly purchase a piece of property even though he is aware that there might be defects in the title, and perhaps to ask for a discount on the price to take into account the potential defects.  It is a judgment call to be made by the purchaser with the advice of his conveyancing solicitor.  It would be surprising that the conveyancing instrument should be refused registration in such circumstances.

83.  The Land Registrar’s concern does leave the parties to the 2022 Assignment in limbo, as it will remain unregistered unless and until the parties are forced to litigate and obtain a court ruling on title.  Only then might the Land Registrar form a doubt-free view.  This is against the purpose of the LRO to prevent fraudulent and secretive transactions by establishing an open instrument registration system, and the general spirit underscored by section 23 and regulation 14 in obliging the Land Registrar to register instruments lodged as soon as practicable.

84.  This echoes Mr Cooney’s submission (which I accept) that if the Registrar should only allow registration upon her being satisfied with the legal effect or that good title has been shown, the duty placed upon her would be enormous and, indeed, impossible to perform.

85.  In further support of her offered construction of implying certain powers into regulation 13, Ms Lam highlights the significance of the registration regime, despite the fact that it is not a registration of title system.  She relies on the following:

(1)  The learned authors of Hong Kong Conveyancing Law (9^th ed) state at §12-23 that:

Despite these limitations on the registration system, registration is often treated as being equivalent to a registration of title system at least the one regard, namely, that of the security given by registration.  In many cases, the courts use the phrase ‘the registered owner’ as if registration has proved the owner’s title in some way.

(2)  In Kok Yun Kuen v Au Yeung Bik Tai & Anor [1991] 2 HKC 522, Godfrey J said (with Ms Lam’s emphasis):

In Hong Kong, it has for long time been the practice of solicitors acting for the 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 the 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.

(3)  The purpose of the LRO is to prevent secret and fraudulent conveyances and provide a means whereby the title to real and immovable property may be easily traced and ascertained, as noted by the Privy Council in Tsang Cheung v Li Po Kwai [1932] AC 715.

86.  I do think these authorities could assist Ms Lam. None of them suggests that “accuracy” of particulars in the memorial is tied to the actual legal effect of the instrument, or that the Registrar, in determining if the particulars are accurate, should concern herself with title in land.

87.  Indeed, it appears to me that what Godfrey J said in the Kok Yun Kuen case is against the Land Registrar.  The memorial functions as the secondary evidence of the instrument it describes. The memorial can only serve this function if it acts as a faithful summary of what is said in the instrument.

88.  The 1996 Memorial serves this function well: people reading that memorial would be able to tell that under the 1996 Assignment, Hui Senior assigned half of the Flat to Hui Junior for both of them to hold that in joint tenancy.  Even if, as argued by the Land Registrar, the 1996 Assignment should cast doubt on Hui Junior’s good title, the 1996 Memorial should be able to raise the same doubt.  In contrast, if, hypothetically, the Solicitors agreed to what was suggested by the Land Registry Scrutineer and amended the number of undivided shares in the 2022 Memorial to ½ of 1/300 and successfully registered it, people reading the 2022 Memorial or the land search record would be misled as to what was stated in the 2022 Assignment.

89.  Memorials can only serve their proper function in the land registration regime by faithfully recording what is said in the instruments.

90.  Another focus of Ms Lam’s offered construction raises the question whether the Land Registrar can look beyond the instrument delivered for registration to determine accuracy under regulation 13.  I have already pointed out that that construction focuses on the practical steps the Land Registrar can take in ascertaining accuracy, not the more important question on the meaning of accuracy under regulation 13.  But I will try to deal with the other aspects as well.

91.  Ms Lam says that if Land Registrar does not have the implied power to look beyond the instrument delivered for registration in determining accuracy, absurdity will result.  Ms Lam looks beyond the typical transactional or conveyancing documents and instruments delivered for registration.  She also refers to forged instruments.  She raises the following examples:

(1)  For a death certificate, it is impossible for the Land Registrar to ascertain whether the certificate is registrable without checking other documents to see if the deceased held the property in question as one of the joint tenants immediately before his death.

(2)  For a sealed and certified copy of probate or letters of administration (without will or a schedule of assets annexed) issued by the probate registry, it is impossible for the Land Registrar to scrutinize the particulars contained in the memorial without checking other documents to see if the properties concerned were indeed owned by the deceased and, if so, to ascertain the number of undivided shares in the land held by the deceased.

(3)  Occasionally, the Land Registrar is informed by law enforcement agents that fraudsters may falsify in certain conveyancing documents the signatures of the true property owners who have actually passed away.  It cannot be right that the Land Registrar shall be duty bound to register the instrument and thereby facilitate the fraudulent transaction in the circumstances.

92.  I shall take Ms Lam’s examples in reverse order.  For the suspected fraudulent instrument, Mr Cooney says the Registrar is not obliged to register it.  But the basis for withholding registration is not because the particulars contained in the memorial are inaccurate.  Rather, the basis is that the instrument itself might be fraudulent. He says whatever power the Land Registrar might rely upon, it does not come from regulation 13.  I agree.  To suspect that the signature in conveyancing document is forged is simply a different matter from saying that the regulation 6 particulars have not been accurately stated in the memorial.  Signature is not even a particular listed under regulation 6.

93.  Hence, I do not think I need to comment on the suggestion made by Mr Cooney in his written submissions that the Land Registrar could make the public aware of potential fraud by putting a remark on the record of the suspected fraudulent instrument in the land search record.

94.  As to the examples of death certificate, probate or letter of administration (without will or a schedule of assets annexed), I agree with Mr Cooney’s submission that these examples all concern the registrability requirement under section 23(1)(a), rather than accuracy of particulars under section 23(1)(b) and regulation 13.  Those instruments by nature do not provide for information about the property concerned in the document itself.  In order to ascertain whether they “may affect land” under section 2 of the LRO and are thus registrable, the Registrar would have to look beyond the instruments themselves.  This is a section 23(1)(a) exercise.

95.  I recognize that after the Registrar is satisfied that such instrument is registrable under section 23(1)(a), she will still have to see if section 23(1)(b) – including regulations 6 and 13 – are satisfied.

96.  Amongst the particulars listed under regulation 6(1), only those provided in regulation 6(1)(a), (b), (c), (d) and (g) appear to be mandatory, while others are optional as may be appropriate.  Regulation 6(1)(g) is concerned with the solicitors’ code assigned by the Land Registrar to a solicitor or firm or solicitors for the purpose of the LRR, and can be put aside.  Regulation 6(1)(a), (b) and part of (c) – the date, nature, object of the instrument and the name of the parties – would be ascertainable from the instrument itself.  What remains is (d) – a description of the land and premises affected or intended to be affected, including the lot number and address – and part of (c) – the parties’ respective shares in and capacities in relation to the land or premises.  Those particulars seem to me to be the sort of information the Land Registrar would have already identified and satisfied herself with in the process of determining if an instrument is registrable at all.  If the Land Registrar is not even able to identify the land said to be affected and how that land may relate to a party, the relevant instrument will fail at section 23(1)(a), and it will be unnecessary to consider whether there has been compliance with section 23(1)(b).

97.  Ms Lam also refers to section 23A which provides that the Registrar shall be liable in damages if she negligently or wilfully fails to comply with section 23.  Ms Lam argues that, now that the Land Registrar has become aware of the doubt, she could not ignore it and proceed to registration.  But there is the express protection afforded by to the Land Registrar by the same section, which exempts the Land Registrar from liability if she registers the instrument in good faith notwithstanding any error, omission or defect in the instrument.  If the memorial, as secondary evidence of the instrument, contains the necessary particulars as shown on the face of the instrument, it does not matter that there may be a problem with the instrument itself (such as that it might not be possible of effecting the apparently intended transaction).  The reference to section 23A cannot support the Land Registrar’s withholding registration.

98.  Solely for completeness, I note (but make no particular comment on) Mr Cooney’s suggestion that the Land Registrar may proceed with registering the 2022 Assignment and its memorial with a remark to be shown in land search record to alert the public to the Land Registrar’s doubt on Hui Junior’s title.  Mr Cooney says there could be a remark to the 2022 Assignment, for example stating that “In [the 1996 Memorial], the property declared to be affected by the assignment registered on 28/11/1996 is (1/2) share”.  Then, it would be up to any party interested in the Flat to make a decision as to whether he wants to get involved in the Flat or to take any other action he might wish.

E.  Standing

99.  Ms Lam submits that the Solicitors lack standing to bring this application.  This submission was not opposed by Mr Cooney with great vigour at the oral hearing.  In any event, I agree with Ms Lam.

100.  The only matter relied upon by the Solicitors is that the answer to the application affects the practice of conveyancing solicitors.  But I agree with Ms Lam said that the Solicitors do not have any personal interest in the matter.  Nor do I see a sufficient public interest for the Solicitors make the application in any representative capacity.  In any event, the fact that the 2^nd Applicant in this application has a more direct interest in the matter further militates against the Solicitor’s standing.

101.  Though I have accepted Ms Lam’s submissions on this point, it has no impact on the resolution of the question raised by these proceedings, since the 2^nd Applicant, being the Purchaser, undoubtedly has proper standing in the matter.

F.  Result

102.  The application – insofar as it is pursued by the 1^st Applicant – is dismissed for want of proper standing.

103.  The application – insofar as it is pursued by the 2^nd Applicant – succeeds.

104.  I grant leave to apply for judicial review, and I find the ground of judicial review put forward has been made out.  In those circumstances, and in the exercise of the triggered discretion, I grant to the 2^nd Application the following substantive relief sought in the Form 86:

(1)  a declaration that the decisions of the Land Registrar contained in the 29/11/22 Letter and 17/2/23 Letter refusing to register the 2022 Assignment lodged with the Memorial No. 22032901490087 and the Mortgage Documents lodged with the Memorial No. 22032901490093 in respect of the Flat on the basis of the alleged legal issues relating to the 1996 Assignment dated 10 June 1996 registered under Memorial No. 6830103 on 28 November 1996 in respect of the Flat were invalid as they were made in breach of the Land Registrar’s statutory duty under section 23 of the Land Registration Ordinance, cap 128;

(2)  an order of certiorari to bring up and quash the decision contained in the 29/11/22 Letter and the 17/2/23 Letter; and

(3)  an order of mandamus requiring the Land Registrar to register the 2022 Assignment lodged with the Memorial No. 22032901490087 and the Mortgage Documents lodged with the Memorial No. 22032901490093.

105.  As to costs, I can at present see no reason why the costs should not follow the event.  Therefore, I order the Land Registrar to pay the 2^nd Applicant’s costs of these proceedings, to be taxed if not agreed, with certificate for two Counsel.  As to the costs position between the Land Registrar and the 1^st Applicant, I make no order as to costs (where the presence of the 1^st Applicant has apparently not caused any substantial difference in the incidence of costs).  For the avoidance of doubt, in so far as the 1^st Applicant has incurred costs separately from the 2^nd Applicant, they do not form part of the costs payable by the Land Registrar.

106.  Nevertheless, in the circumstances that I have not heard costs argument pending this reserved Decision, I make the above orders on a nisi basis.  The nisi orders will become absolute after 14 days, if no party seeks variation of them.  Any variation application will be dealt with on paper.