LEE YEUNG CHUN AND ANOTHER v. NG CHOI CHUN

[A statutory declaration is not acceptable, for conveyancing purposes, as evidence of the facts to which it relates if it is made before the solicitor instructed by the declarant to act for him in the transaction in connection with which the declaration was made].

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. This is a vendor and purchaser summons.

2. By an agreement for sale and purchase dated 26th October 1989, made between the defendant (the vendor) and the plaintiffs (the purchasers) the purchasers agreed to buy the property 3/F, 89 Lion Rock Road, Kowloon from the vendor at the price of HK$775,000, completion to take place on 29th December 1989. Under this agreement the vendor came under an obligation to show a good title to the property.

3. The purchasers have taken objections to the title shown by the vendor, based on what they assert are reasonable doubts as to the due execution of certain of the documents of title.

4. The material facts are as follows.

5. By an assignment made on 16th January 1976, the property (with other property) was assigned to Joe Edward Fook and Monie Fook. Joe (if I may call him that) was described in the testimonium as the holder of American Passport No. 662026. He signed the instrument "Joe Edward Fook". Monie (if I may call her that) was described in the testimonium as the holder of American Passport No. F2177853.  She signed the instrument "Monie Fook".

6. By an assignment (which again included other property) made on 20th June 1987, Joe and Monie appear to have assigned the property to predecessors in title of the vendor. However, in this assignment Joe was described in the testimonium as having been identified by production of his American Passport No. G868549. This is not the same number as that of the passport which he was described as holding in the assignment of 16th January 1976. Further, on this occasion he signed the instrument for himself "Joe E. Fook", not "Joe Edward Fook". He also signed for Monie as her" attorney; he did so twice, once as "Joe E. Fook" and once as "Joe Edward Fook". His authority to sign the instrument on Monie's behalf as her attorney derived from a power of attorney apparently executed on 1st April 1987, by Monie, who was, however, described in the testimonium as having been identified by production of her American Passport No. G868548. This is not the same number as that of the passport which she was described as holding in the assignment of 16th January 1976.

7. I pause there. All these documents of title, or certified copies of them, were produced from proper custody by the vendor to the purchasers: See Williams, Vendor and Purchaser, 4th Edition Volume 1, at p. 158. All of them are to be assumed for conveyancing purposes to have been duly executed, unless there is anything which raises a reasonable doubt as to whether that assumption can safely be made. Is there anything in any of the matters to which I have referred which raises any such reasonable doubt? In my judgment, There is not. I see no reason at all to doubt that each instrument was duly executed by the person or persons by whom it appears to have been executed. Nothing in the discrepancy between the passport numbers (after a lapse of eleven years) nor in Joe's various signatures (none of which appear to be in anything but the same hand) raises any reasonable doubt about the due execution of any of these instruments. No reasonable person would entertain any suspicion as to their authenticity.

8. If I am right so far, that is an end of the matter and it must be declared that the purchasers' objections are not well-founded. But if I am wrong and the doubts entertained by the purchasers are, on the evidence I have so far outlined, reasonable doubts, then the question arises whether there is any further evidence which serves to resolve such doubts in the vendor's favour. The vendor says that there is. The purchasers say that there is not.

9. The further evidence on which the vendor relies is a statutory declaration apparently made by Joe on 1st April 1987, the same date as that on which Monie executed the power of attorney in Joe's favour to which I have already referred. In this statutory declaration, Joe (who signed it "Joe Edward Fook") declares (I paraphrase slightly) that the person referred to in the assignment of 16th January 1976 as the holder of an American Passport No. 662026 was himself, although now he is the holder of American Passport G868549.It is not disputed that, but for one point, that would be good conveyancing evidence sufficient to resolve the purchasers' doubts. The point is that the statutory declaration was made before a solicitor, one Tam Tai Wai, who was the solicitor acting, for Joe (and Monie) in and about the transaction which led to the assignment of 20th June 1987. This, the purchasers says, renders the statutory declaration useless as evidence of the matters to which it relates.

10. This is an interesting and I suspect important point, at any rate for Hong Kong conveyancers (it seems the practice of a declarant's making his declaration before his own solicitor may in the past have been a common one).

11. Although the point does not arise for decision in the light of the conclusions to which I have already come, it was fully (and ably) argued before me. I think that I ought briefly to deal with it.

12. In my judgment, the point is a good one and the purchasers are right. I arrive at this conclusion by the following route.

13. When statutory declaration is made for conveyancing purposes, the object is that it should serve as evidence to assist a vendor of the property in verifying his title. If an issue arises between vendor and purchaser in relation to which the content of such a declaration is material, the court will receive the declaration as admissible evidence to be considered in deciding the point in issue. It serves, therefore, the same object in conveyancing as evidence by affidavit or affirmation does in litigation. It is well settled that an affidavit or affirmation made before a party's own solicitor is inadmissible in evidence in litigation between that party and other parties. Such evidence is regarded as open to suspicion of partiality, and as a matter of policy will not be received although in any particular case it might in fact be quite beyond reproach. The point is similar to that made by the reported observation in connection with affidavits made by solicitors or their clerks on "information and belief", that every well-managed firm of solicitors has two clerks, an informing clerk and a believing clerk; it being the duty of the informing clerk to be informed of whatever might be to the advantage of the firm's clients, and of the believing clerk to believe it: see Vindaes v De Pass [1892] AC 90, per Gainsford Bruce QC, in argument at p.92.

14. In my view, these policy considerations apply as much to evidence in the form of a statutory declaration as they do to evidence in the form of an affidavit or affirmation. The matter is spelt out (in one specific field) in local legislation: I refer to the Powers of Attorney Ordinance, Cap. 31, section 5(8), (9). These express provisions do not displace the operation of the policy in other cases; rather, in my opinion, they buttress it.

15. A number of subsidiary matters were raised in support of their respective arguments on this point by the vendor and the purchasers, but I do not consider it necessary to examine them. For the reasons I have endeavoured to state I am satisfied that, on this point, the purchasers are right. But the purchasers' success on this point does not affect my earlier conclusion that the purchasers' objections to the title cannot be sustained; and I will make an appropriate declaration in favour of the vendor accordingly. I will hear Counsel on any question which may arise as to the form of the order and as to costs.