WIDE HOLLY INDUSTRIAL LTD. AND ANOTHER v. SUPER CROWN DEVELOPMENT LTD.

1994 M.P. No. 2740

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is a vendor and purchaser summons. It concerns Rooms 2208 and 2209 on the 22nd floor of International Building, 141 Des Voeux Road, Central, which the Plaintiffs ("the vendors") agreed to sell to the Defendant ("the purchaser") by two sale and purchase agreements dated 6th April 1994. Completion is due to take place next Wednesday on 30th November.

2. By clause 5 of the two agreements, the vendors undertook to prove their title to the rooms at their own cost and expense. In order to do that, their solicitors provided the purchaser's solicitors with copies of a number of instruments. The purchaser claims that the vendors have not proved their title because reasonable doubts exist as to the due execution of one or more of three instruments on which the vendors' title depends. Those instruments are:

(i) A general power of attorney purportedly executed on 29th December 1983 by Awong Hidjaja appointing Tani Hidjaja as his lawful attorney ("the 1983 instrument"). Awong Hidjaja was described in the instrument as being the holder of a current Indonesian passport, no. G043934, and the holder of a former Indonesian passport, no. C096866. The instrument was purportedly signed by Awong Hidjaja in the presence of a solicitor.

(ii) Two assignments purportedly executed on 18th April 1989 by Awong Hidjaja assigning the legal title to the two rooms to the purchaser's predecessors-in-title ("the 1989 instruments"). Awong Hidjaja was stated in those instruments to have identified himself by the production of an Indonesian passport, no. A803915. These two instruments were purportedly signed by Awong Hidjaja in the presence of a solicitor as well, who has confirmed that he produced that passport to her.

The person who signed the 1989 instruments had to have been the person who signed the 1983 instrument for the vendors' title to be established.

3. The doubts of the purchaser about the authenticity of one or other of these three instruments arise because it is said that there is a difference between Awong Hidjaja's purported signature in the 1989 instruments and his purported signature in the 1983 instrument. That doubt could have been laid to rest if the person signing all three instruments had produced the same passport to the solicitors witnessing his signatures. but he did not because Awong Hidjaja was described in the 1989 instruments as being the holder of an Indonesian passport with a different number from the Indonesian passport referred to in the 1983 instrument.

4. I am, of course, not a handwriting expert, and I bear in mind also that I have been looking at copies of the instruments, not the originals. Having looked at the signatures on the three instruments carefully, I can detect slight differences in them, but those differences are only minor. To my untutored eye, those differences can easily be attributed either to the speed with which the signatures were written, or to the fact that a person's signature changes over the years, or to both. Indeed, when I look at what purport to be Awong Hidjaja's signatures

(a) on the passport issued on 6th October 1987,

(b) in various places on the two agreements dated 17th March 1989 for the sale and purchase of the rooms, and

(c) on various documents relating to a company incorporated in Hong Kong of which he is a director and which were executed in January 1991, April 1991 and January 1992,

his purported signatures on all those documents seem to me to have characteristics which are similar to both the signature on the 1983 instrument and the signatures on the 1989 instruments. I, therefore, do not regard such minute differences as there are in the signature on the 1983 instrument and the signatures on the 1989 instruments as indicating that the instruments were signed by different people, and therefore as raising any reasonable doubts about the due execution of those instruments.

5. Moreover, the fact that different passport numbers were given for Awong Hidjaja in the 1983 and 1989 instruments do not cause me to suspect that the signatures might not have been those of Mr. Hidjaja. A person's Indonesian passport number changes from time to time - presumably when the previous passport expires and a new one is obtained. That is apparent from

(a) the reference in the 1983 instrument to the number of Awong Hidjaja's former passport,

(b) the fact that the passport referred to in the 1989 instruments was issued on 6th October 1987 and was stated to be valid until 6th October 1989, which suggests that Indonesian passports have a validity for only two years, and

(c) the fact that the annual return of the company in Hong Kong of which Mr. Hidjaja is a director recorded on 3rd August 1994 that his Indonesian passport number was then B087805.

In any event, the person who signed the 1983 and 1989 instruments produced on each occasion an Indonesian passport in the name of Awong Hidjaja.

6. I do not regard it as necessary, therefore, for the vendors to provide what has been described as "proper conveyancing proof" of the due execution of the instruments - whether that proof takes the form of a statutory declaration from Awong Hidjaja to the effect that he signed all three instruments, or the form of a statutory declaration from the solicitor who witnessed his signature on the 1983 instrument to confirm that the man who signed that instrument was the same man whose photograph appeared in the passport which was shown to the solicitor who witnessed the 1989 instruments.

7. Finally, I should add that I have decided this summons without recourse to the presumption as to due execution in section 23 of the Property and Conveyancing Ordinance (Cap. 219). That is because I have, in another case, expressed the view that section 23 merely enacts the common law presumption of omnia praesumuntur rite esse acta, namely, an act is presumed to have been done in accordance with the necessary formalities. The fact that an instrument has been executed in accordance with the necessary formalities does not, in my view, mean that it was executed by the person who purported to execute it. However, if the effect of section 23 is to presume that an instrument was executed by the person who purported to execute it, the purchaser has not satisfied me that either the 1983 instrument or the 1989 instruments were not signed by Awong Hidjaja.

8. For these reasons, I propose to make the declaration sought by the vendors, namely, that they have shown a good title to their respective premises known as Rooms 2208 and 2209, 22/F, International Building, 141 Des Voeux Road, Central, in accordance with the sale and purchase agreements respectively made between them and the purchaser on 6th April 1994. I make that declaration in the knowledge that it satisfies both the vendors and the purchaser. It satisfies the vendors, of course, because they can now proceed to completion without worrying about the doubts which have been expressed on their title. But it satisfies the purchaser as well, because Mr. Mok on behalf of the purchaser has told me that the purchaser wishes to proceed with the purchase, but that the bank, which is to finance its purchase of the rooms, wished to have the protection of a finding of the court against any attack in the future on the purchaser's title. By this judgment, I hope that I have put the concerns of whoever has been concerned about the purchaser's title to rest.