XCHRX YEUNG KONG v. WONG PAK CHAW

HCMP 1305/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.1305 OF 1998

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J U D G M E N T

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1. The Plaintiff took out an Originating Summons in which the following orders are sought :

1) A declaration that the requisitions and objections in respect of the title of the Property as set out in paragraphs 3 to 9 inclusive of the letter dated 31st October 1997 from the Defendant's solicitors Messrs Ko & Chow to the Plaintiff's solicitors Messes Charles Yeung, Clement Lam & Co. which requisitions and objections were followed up in a letter dated 19th January 1998 from the Defendant's solicitors to the Plaintiff's solicitors, and the requisition contained in the Defendant's solicitors' letter of 3rd November 1997, have been sufficiently answered by the Plaintiff.

2) A declaration that a good title to the Property has been shown by the Plaintiff in accordance with the Agreement.

3) An order that the Defendant may be ordered to pay the costs of and incidental to this application;

4) such further or other order in the premises as the Court shall deem fit.

Background

2. By an Agreement for Sale and Purchase dated 29th October 1997, the Plaintiff as Vendor agreed to sell, and the Defendant as Purchaser agreed to purchase the Property situated in Yuen Long and registered in the Yuen Long New Territories Land Registry as the Remaining Portion of Subsection 1 of Section K of Lot No.3719 and Subsection 1 of Section L of Lot No.3719, all in Demarcation District No.104 at the consideration of HK$12,693,338. The sale and purchase was due to complete within three months from 29th October 1997.

3. By a letter dated 31st October 1997 from Ko & Chow ("K&C") on behalf of the Defendant, a total of 14 requisitions were raised. In subsequent correspondence, K&C acknowledged that some of the 14 requisitions had been sufficiently answered. In a letter dated 19th January 1998, the Defendant claimed that Requisition Nos.3 to 9 of the 14 requisitions had not been sufficiently answered. Requisition No.3 to 9 are the subject matters of the present proceedings. By another letter dated 3rd November 1997, K&C raised an additional requisition. It was not expressly alleged in the letter dated 19th January 1998 that the additional requisition had not been sufficiently answered. This additional requisition is also the subject matter of the present proceedings.

4. After the date due for completion, on behalf of the Plaintiff, Messrs Charles Yeung, Clement Lam & Co. ("CYCL") by a letter dated 26th February 1998 answered again the requisitions alleged to have been outstanding. By a letter from K&C dated 4th March 1998, K&C maintained its view that the Plaintiff had failed to answer all the requisitions satisfactorily, but indicated that the Defendant was prepared to argue his case on the basis of the Plaintiff's answers contained in the said letter dated 26th February 1998. On 26th March 1998, the present Originating Summons was taken out.

Nature of the requisitions alleged to be outstanding

5. In respect of the requisitions alleged to be outstanding, it is submitted by the Plaintiff that :

1) They related to-

a. The contents of various Memorials. The actual title documents were not relied upon (nor are they available).

b. Alleged pre-intermediate root title problems.

c. Apparent discrepancies between the names of various parties that appeared on the various Memorials.

2) The matters, events or transactions which gave rise to those alleged pre-intermediate root title problems took place, according to those relevant Memorials between 1911 and 1937.

3) No evidence has been adduced to the effect that those alleged pre-intermediate root title problems have adversely affected either the title of the registered owners from time to time, or their enjoyment of the Property in accordance with such title, during all the years from 1937 to date.

The requisitions

Requisition No.3

6. This was how this requisition was worded in K&C's letter of 31st October 1997 :

"It is noted in Sale Memorial 18023 the purchaser was Wing Hing Co. whereas in Lease Memorial 37051 the lessor was Wan Hing Company. Further in Sale Memorial 37573 the vendor was Wang Hing Co. Please account for the difference in the parties thereto and prove that they referred to one and the same company."

In the letter of 19th January 1998, this was stated :

"Please note that the name of the then registered owner appearing in Sale Memorial No.18023, 37051 and 37573 were respectively Wing Hing Co., Wan Hing Company and Wang Hing Co. We are of the opinion that the words Wing, Wan and Wang sound differently, we are unable to accept your contention that they are mere different transliteration of the same Chinese word."

In CYCL's reply dated 26th February 1998, it was stated that the three words were merely different transliteration of the same Chinese word.

The Memorials in question

(1) Memorial 18023 :
Sale of D.D.104, Lots 3719, 3720, 3721, 3722 and 3723
Purchaser : Wing Hing Co.
trustee Yeung Chuk Cho of Yuen Long Market
The person who signed as witness was Chiu Chun Fai. One of the parties who signed the memorial was Yeung Chuk Cho.

(2) Memorial No.37051 :
Lease dated 7th September 1917
Lessor : Wan Hing Company
trustee Yeung Chuk Cho of Yuen Long
Description of land or premises affected : D.D.104, Lots 3719, 3722 and 3723.
Particulars of incumbrances : for the term of ten years from January 1914 Lots 3719 and 3723 coloured blue on tracing not included in the lease.

(3) Memorial No.37573
Sale dated 7th January 1918
Vendor : Wang Hing Co.
trustee Yeung Chuk Cho of Yuen Long
Particulars of incumbrances : Lot Nos.3719, 3722, 3723 leased for 10 years from 1st January 1914, registered by Memorial No.37051.
One of two witnesses who signed the Memorial was Chiu Chun Fai.
One of two persons who signed the Memorial was Yeung Chuk Cho.

I am satisfied :

1) In all three Memorials, the company concerned had the same trustee Yeung Chuk Cho.

2) The description of the land in Memorials 18023 and 37573 are the same in so far as Lots 3719, 3720, 3721, 3722 and 3723 are concerned.

3) The same person, Chiu Chun Fai, signed as witness in Memorials 18023 and 37573.

4) The same person, Yeung Chuk Cho, signed as a party to the memorial in Memorials 18023 and 37573.

5) The signatures of these two persons appear to be the same.

I am therefore satisfied that despite the three different ways of spelling the name of the company concerned, they are one and the same company. 18023 was when Wing Hing Company purchased the land, and Memorial 37573 is when the same company sold the land to another party. The lease, the subject matter of 37051, was surrendered on 1st November 1921 and it was stated in the Memorial 50437 that the lessor was Wang Hing Company (T) Yeung Chuk Cho of Yuen Long. The land surrendered was exactly the same as that which was leased on 7th September 1917, i.e. D.D.104, Lots 3719, 3722 and 3723. In Kan Wing Yau and Another v. Hong Kong Housing Society [1988] 2 HKLR 187, it was held by the Court of Appeal that "the obligation on the vendor to prove good title meant that the title proved must be one which can at all times, and in all circumstances, be forced upon an unwilling purchaser in an action for specific performance. The court would not force a doubtful title on a purchaser. A doubtful title was one which would expose the purchaser to risk or hazard. The court must be satisfied beyond reasonable doubt that the purchaser will not be at risk of a successful assertion against him of the incumbrance. It was only if the blot on the title were purely theoretical and not a practical blot that it could be ignored." I am satisfied that this requisition was not justified.

Requisition No,4

7. In K&C's letter dated 31st October 1997, this requisition was worded as follows :

"Surrender of Lease Memorial 50437

It is noted that the said lease was surrendered to the original lessor where the true lessor in question should be Chiu Ying Luen and Chiu Fu Luen who became the registered owner of the Property by way of Sale Memorial 37573. Please clarify."

In K&C's letter of 19th January 1998 this requisition was worded as follows :

"Please note that our requisition concerns the doubt over the true identity of the owner of the Property. The said surrender of lease evidenced that the lessee therein surrendered the lease respecting the Property therein mentioned to Wang Hing Company with Yeung Chuk Cho as trustee. We have pointed out in our letter of 31st October 1997 that the Property had already been conveyed to Chiu Ying Luen and Chiu Fu Luen by way of Sale Memorial No.37573. The lease evidenced thereby should therefore be surrendered to the said Chiu Ying Luen and Chiu Fu Luen instead. Given the fact as evidenced by the said surrender of lease, we have reason to doubt over the true ownership of the Property involved. We therefore take the view that we have made out a clear case in respect of doubt mentioned above which you have failed to reply fully and satisfactorily or at all."

8. In CYCL's reply dated 26th February 1998, it was stated that :

"There was nothing either by way of registration or otherwise which indicated that the Vendor (i.e. Wang Hing Company) had entered into any novation agreement relating to the lease with the Purchasers (i.e. Chiu Ying Luen and Chiu Fu Luen). The above may explain why the surrender was effected between the Vendor and the lessees, although by virtue of the privity of estate between the Purchasers and the lessees, the lessees could have surrendered the lease directly to the Purchasers."

Conclusion

9. This requisition relates to why the lease which was the subject of Memorial 37051 dated 7th September 1917 was on 1st November 1921 surrendered to the lessor Wang Hing Company when by that time the lessor had already sold the land to Chiu Ying Lun and Chiu Fu Lun. When the lessor sold the land on 7th January 1918 via Memorial 37573, the sale was subject to the lease. The new purchasers, Chiu Ying Lun and Chiu Fu Lun, on 28th October 1921, via Memorial 50416 in turn sold the land to another purchaser, but this agreement for sale was not subject to the lease. It was contended on behalf of the Defendant that once Wang Hing sold the Property on 7th January 1918, it ceased to be the landlord, and privity of estate after that sale would be between the tenant and the real owner. The Defendant asks the question :

"What was the status of Wang Hing in relation to the land at the time of the surrender of the lease? Does it suggest the company is still the owner of the land?"

The Defendant contends that the fear is not whether the three tenants can now make a claim. The Defendant's concern is why more than 31/2 years after the company sold the land, the land was surrendered to the company? Did the company, after the sale, acquire some interest in the land?

10. On behalf of the Plaintiff, it is submitted that the three lessees are not entitled to assert any claim for any interest in the Property :

1) By virtue of the privity of estate between the purchasers and the lessees, the lessees could have surrendered the lease directly to the purchasers, but

2) (a) the lessees surrendered the lease to their landlord in 1921 (77 years ago);

(b) they are no longer in possession of the Property;

(c) the lease was for a fixed term of 10 years from January 1914 and would have been terminated by effluxion of time in any case.

I am satisfied that on the documents, there is nothing which casts any doubt on the Plaintiff's title. There are no documents to suggest that on the date of the surrender of the lease, namely 1st November 1921, Wang Hing Company was still the owner of the land or that it had acquired some interest in the land. I am satisfied that Wang Hing Company sold the Property subject to the lease to Chiu Ying Lun and Chiu Fu Lun on 7th January 1918. The new purchasers, on 28th October 1921 sold the Property, not subject to the lease, to Tong Yip Co., trustee Mok Oi Tong and Li Chak Hing. I find that this objection by the Defendant was unjustified and in any case was sufficiently answered by the Plaintiff.

Requisition No.5

11. In K&C's letter of 31st October 1997, this requisition was worded as follows :

"Reassignment Memorial 61936

It is noted that the subject property was purported to be reassigned to Tong Ip Co. by Leung Kap Kan. Please clarify which mortgage or charge was involved in the Reassignment."

The Memorials

12. The re-assignment via Memorial 61936 is dated 9th January 1925. The re-assignor is stated to be "Leung Kap Kan of No.____ Connaught Road Central", and the re-assignee is stated to be "Tong Ip Co. Trustees Mak Oi Tong, Li Chak Hing, Chan Kwong Tsai, Tang King Shang, Mak Kwai Tak, all of No.41 Po Tak Street. The land affected are Lot Nos. 3719, 3720, 3721, 3722, 3723, 3973 and 3974 in D.D. 104. The consideration is $15,000. On 16th January 1924, a mortgage was registered via Memorial 58719. The mortgagor is stated to be Tong Ip Co., trustees Mak Oi Tong, Li Chak Hing, Chan Kwong Tsai, Tang King Shang and Mak Kwai Tak, all of No.41 Po Tak Street. The mortgagee is stated to be Leung Kai Pan of No.31 Connaught Road, Central. The premises affected is the same as the re-assignment. The consideration is the same, namely $15,000.

13. It is submitted on behalf of the Defendant that the mortgage as evidenced by Memorial 58719 could not have been properly discharged by the Re-assignment Memorial 61936 for the following reasons :

a. The mortgagee in Memorial 58719 was Leung Kai Pan of No.31 Connaught Road Central.

b. The re-assignor in Memorial 61936 was a Leung Kap Kan of an unknown number at Connaught Road Central.

c. The names sound so different that prima facie the difference could not have arisen from any transliteration problem.

d. Both of the two Memorials appeared to have been witnessed by solicitors who presumably would have made efforts to ascertain the identity of the parties beforehand. Nevertheless, the names in the two Memorials appeared to be so different.

e. Furthermore, since the mortgagee did not sign Memorial 58719, no assistance can be sought by comparing the signatures in the two Memorials.

f. In the circumstances, one cannot conclude as the Plaintiff seeks to, that the difference in the names of 'Leung Kai Pan' and "Leung Kap Kan' arose as a result from a transliteration problem.

14. I am satisfied, having regard to the similarity in 1) the consideration; 2) the names of the re-assignee and the mortgagor; 3) the names of all of the trustees in both documents; and 4) the description of the land or premises affected in both documents, that 'Leung Kap Kan' is the same 'Leung Kai Pan' in the mortgage signed on 16th January 1924. I am satisfied that the re-assignment dated 9th January 1925 is a good and valid re-assignment of the mortgage dated 16th January 1924.

15. If the re-assignment was not a proper discharge of the mortgage, then in any case the right to claim under the mortgage is statute-barred by virtue of s.19(1) of the Limitation Ordinance, Cap.347 where the period of limitation is 12 years from the date when the right to receive the money accrued.

16. There was some discussion on what the phrase "the right to receive the money" meant. Mr Lee, for the Defendant, submits that if a mortgage had no time for repayment, as this mortgage did, then that is only repayable upon demand. He relies on Fisher and Lightwood on the Law of Mortgage, page 45, which says :

"If no fixed date for repayment is specified by the mortgage deed, the debt is repayable on demand."

He also relies on Chitty on Contracts, 27th Edn., paragraph 36-210, which says :

"Where the loan is repayable on demand, the making of a valid demand is a pre-condition of the debt becoming due."

He submits that there is no evidence of any demands having been made, so the right to sue may still be alive because the limitation period may not have begun to run.

17. Mr Yeung, for the Plaintiff, accepts that but submits that time starts to run from the accrual of the right to receive the money. He relies on Chitty on Contracts, 27th Edn., paragraph 28-024 which says :

"At common law where no time for repayment was specified in a contract of loan or where the loan was expressed simply to be repayable 'on demand', the lender's cause of action in general accrued when the loan was made and time began to run from that moment. As a result, once the loan was outstanding for more than six years, the lender's right to recover the money lent became barred notwithstanding that no demand for repayment had been made."

He also relies on Hornsey Local Board v. Monarch Investment Building Society [1889] XXIV QBD 1 to submit that a right to receive money is not the same as a right to enforce payment. He submits that the right to receive the money accrued as soon as the mortgage was signed and under the Limitation Ordinance, that right expired 12 years from the date of the mortgage.

18. In my judgment, time began to run from the date that the loan was made and therefore, the lender's right to recover under this mortgage is statute-barred and is no longer enforceable.

Requisition No.6

19. In K&C's letter of 31st October 1997, this requisition was worded as follows :

"Redemption Memorial 64008

It is noted that the mortgagor referred therein being Tung Ip Tong while in other title deeds and documents relating to the subject property referred to Tong Ip Co. Please clarify whether the same names referred to one and the same company or Tong."

In K&C's letter of 19th January 1998, this requisition is worded as follows :

"Please be advised that our requisition concerns who was the true mortgagor. That in effect begs the question as to who was the true registered owner of the subject property. We have doubt over whether Tung Ip Tong or Tong Ip Co was the true owner of the property concerned. We are of the opinion that the said discrepancy in the true identity of the mortgagor has fundamental bearing on title of the property in that true ownership being in serious doubt. Without the benefit of perusal your reply thereto, we find that your client has failed to prove good title to the property."

In CYCL's letter of 26th February 1998, the reply was :

"To start with we are of the view that the two words 'Tong' and 'Tung' as in 'Tong Ip' or 'Tung Ip' are different transliteration of the same Chinese word. There is no doubt that Tung Ip Tong or Tong Ip Company relate to one and the same identity. Although there are seemingly different versions of the Chinese name, the names of the trustees or managers of the company (whether its name was transliterated as 'Tong Ip Company' or 'Tung Ip Tong') as set out in all the Memorials were the same, namely Mok Oi Tong, Li Chak Hing, Chan Kwong Tsai, Tang King Shang and Mok Kwai Tak."

The answer then sets out some memorials and it carries on :

"...The above shows clearly that the name of the then owner was at one stage changed from 'Tong' or 'Tung' Ip Co. to 'Tong' or 'Tung' Ip Tong and that the two names denote the one and same entity."

From the papers, there appears to be a total of 16 memorials where the name of Tong Yip Co. has had different variations as follows :

Tong Ip Tong

Rung Ip Co.

Tong Ip Co. Tong

Tung Ip Tong

Mr Lee who appears for the Defendant has accepted that 'Tong' denotes the same entity as 'Tung' and 'Ip' has the same Chinese word as 'Yip', and 'Rung' is the same Chinese word as 'Tung'. He submits that the difficulty is with 'Co.' and 'Tong'. He said that the suggestion was made by the Plaintiff that at one stage the name was changed from 'Co.' to 'Tong' as 'Co.' was crossed out and changed to 'Tong' in three memorials. He said that the Defendant's question is why the rest of the memorials still had 'Co.' in the name of one of the parties, and these documents are memorials which start from 18th January 1923 and end with the memorial dated 16th January 1924. The change from 'Co.' to 'Tong' was last made on 12th December 1921, but as from the next memorial, 18th January 1923, the word 'Co.' is again used. The last time it was used was 16th January 1924. Then on the same day, in another memorial, the name 'Tong' is again used. In a memorial dated 16th January 1924, 'Co.' is crossed out and 'Tong' is written above it. In a memorial dated 9th January 1925, 'Co.' is used and thereafter in all the memorials which follow, it is 'Tong' which is used. Mr Lee submitted that it seemed that the name was changed back and forth. He did not accept that they refer to the same company. He accepted that 'Tong' meant a place for ancestral worship, but asked the question how can a company be an organization for ancestral worship because prima facie a company is one which is run for business. He said that even if the preceding names 'Tong Ip' are the same, it did matter whether it was 'Tong' or 'Co.' which followed. He said an agreement for sale, Memorial 50416 dated 28th October 1921, was the only Memorial which only had two trustees' names in it as opposed to all the other memorials where all five trustees' names plus their address (133 Bonham Strand) were mentioned. He said that the memorials which were signed from the date the property was first purchased to the date when it was subsequently sold by Tong Yip Tong may indicate that someone else, other than Tong Yip Tong, was the owner. He said that the Defendant was not saying that the mortgagors may turn up now and make a claim, they were simply saying that because in some instances 'Co.' was the mortgagor, it might have had some interest in the land because otherwise how could it be the mortgagor. He submitted the fact that a solicitor acted in a particular transaction meant that 'Co.' was put in intentionally and that solicitor was satisfied that 'Co.' had an interest in the land and therefore could be the mortgagor. He submitted there was a reasonable doubt whether the company had any interest in the land.

20. After carefully analysing all the memorials in question, it is clear that on 28th October 1921, Tong Yip Co. signed an agreement for sale and purchase of the Property. On 12th December 1921, Tong Yip Co. purchased the Property. After the purchase, the name of the entity was changed from Tong Yip Co. to Tong Yip Tong. On 2nd July1929, the Property was sold to another person by Tung Yip Tong. In my judgment, therefore, on 12th December 1921 the entity acquired the title to the Property and on 2nd July 1929, the same entity conveyed good title to the Purchaser. All the memorials in between the purchase and the sale mentioned related to mortgages, second mortgages and redemptions. I am satisfied that 'Tong' or 'Tung' Ip Co. was the same entity as 'Tong' or 'Tung' Ip Tong. I therefore find that the Defendant's requisition was unjustified and in any case was sufficiently answered by the Plaintiff.

Requisition No.7

21. In K&C's letter of 31st October 1997, this was worded as follows :

"Redemption Memorial 72689

It is noted that the subject property was originally charged by Tung Ip Tong to the mortgagee. In the said document, the subject property was released unto the five persons named therein instead of to the said Tung Ip Tong. Please clarify."

In K&C's letter of 19th January 1998, this was the query :

"The same doubt as to the true ownership of the property again surfaced after our perusal of the said redemption. Presuming that the property was owned by Tung Ip Tong, the reassignee of the said redemption should therefore be the Tung Ip Tong. However, the reassignees appearing in the said redemption were Mok Oi Tong, Li Chak Hing, Chan Kwong Tsai, Tang King Shang and Mok Kwai Yak instead. It is clear and unambiguous that we have made out a clear case concerning the true identity owner of the property concerned. Therefore your client is under the duty provided under the agreement for sale and purchase entered into by our respective clients to reply to the said discrepancy which your client has failed and still failing to do so."

22. In CYCL's letter of 26th February 1998, their reply to the requisition was that as to any seeming discrepancy between the name of the then owner, they repeated what was said by them earlier on, namely, that Tong Ip Co. and Tong Ip Tong were the same entity. They made the point that in the Redemption Memorial No.72689 dated 24th February 1929, the phrase following the five names "as managers of Tung Ip Tong" was omitted and that this was the result of a clerical mistake which should not affect the true and clear intention of the parties. In the alternative, CYCL made the point that if because of the clerical mistake, the mortgage registered by Memorial 64072 dated 27th January 1926 had not been duly discharged, they submitted that the mortgage, because of the long lapse of time and the expiry of the relevant limitation period, was no longer subsisting or capable of taking effect and therefore the requisition constituted no valid objection to the title of their client.

23. Mr Yeung, for the Plaintiff, in his oral submission submitted that the five managers would be estopped from raising any claim because they subsequently sold the Property on behalf of the Tong as managers when on 2nd July 1929, they sold the Property as managers of the Tong. Mr Yeung submitted that the natural inference was that at the time of the redemption, the sum which was loaned was due and accrued so that time under the Limitation Ordinance would have begun to run.

24. Mr Lee submitted that the very fact that the mortgage had been redeemed by the five persons in their personal capacity suggests that they, in their personal capacity, had acquired an interest in the Property. He relied on Fisher and Lightwood's Law of Mortgage, 10th Edn., page 554 which reads :

"The right to redeem follows the interest of the mortgagor, and is exercisable by him and also by those taking the whole of his interest, whether by assignment inter vivos, or by devolution on debt. The right also belongs to those who have only a partial interest in the property."

Mr Lee also submits that in the mortgage, as evidenced by the mortgage memorial, there was no due date for repayment of the mortgage. Instead there was a provision for recurring payment of interest. He therefore submitted that the mortgage had not been time-barred.

25. After the redemption on 24th April 1929, the Property was on 2nd July 1929 sold to another purchaser. The memorial mentioned the five persons and mentioned them as managers of Tung Yip Tong. The sale was effected and was not subject to any incumbrances. In my judgment, the omission in the redemption memorial to mention the five persons as acting as managers of the Tong as opposed to acting in their personal capacities was a clerical mistake and the redemption was a proper redemption of the mortgage signed on 27th January 1926. I also find that the five managers, if they had made any claims adverse to the Property, would have been estopped from making such a claim. I also find that even if the mortgage had not been properly redeemed, it would have been statute-barred because of the long lapse of time which elapsed from the mortgage in January 1926.

26. I find, as I found in relation to Requisition No.5, that the date when the right to receive the money accrued was the date of the mortgage, and, therefore, the limitation period would have expired 12 years from that date. Even if the date when the right to receive the money secured by the mortgage accrued after the date of the mortgage because of some provisions in the mortgage, I find that by the time these requisitions were raised in 1997 and 1998, the period of 12 years under the Limitation Ordinance had long expired. I therefore find that this requisition was unjustified and in any case was sufficiently answered by the Plaintiff.

Requisitions No. 8 and 9

27. In K&C's letter of 31st October 1997, this was worded as follows :

"Lease Memorial 89190

It is noted that the lessor was purported to be Li Hor Ling alias Li Pun Sin whereas the true owner should be Li Ching Kut as appearing in Sale Memorial 72730. Please clarify the discrepancy."

In K&C's letter of 19th January 1998, the following was said :

"We are of the view that the discrepancy in the names of the true owner, namely, Li Hor Ling alias Li Pun Sin and Ling Ching Kut are so dissimilar that we are unable to accept that they are merely different transliteration of the same Chinese words and therefore they referred to one and the same person."

28. In CYCL's letter of 26th February 1998, the following answer was made :

"Sale Memorial No.72730 evidenced clearly the identity of the purchaser. Although there is a discrepancy between the name of the purchaser in Sale Memorial No.72730 and that of the lessor in Lease Memorial No.89190, such a discrepancy would not constitute any title defect. There is no legal principle to the effect that the lessor of a property must also be the registered owner thereof. It is on the other hand a well established principle that a lessee is estopped from challenging the title of his lessor, irrespective of the nature of the lessor's title. As Li Hok Ling alais Li Pun Sim was the named lessor, it is perfectly regular that the subsequent surrender was effected by the lessee to Li Hok Ling alias Li Pun Sim instead of to the registered owner of the land. There is further no doubt that the lease evidenced by Memorial No.89190 has been duly determined by surrender (as evidenced by Memorial No.99199). The lessee is no longer entitled to assert any claim for any interest in the land."

The Memorials

29. Lot Nos.3719, 3720, 3721, 3722, 3723, 3973 and 3974 in D.D.104 were sold via an instrument dated 2nd July 1929 by Mok Oi Tong, Li Chak Hing, Chan Kwong Tsai, Tang King Shang and Mok Kwai Tak as managers of Tung Yip Tong and the purchaser was Li Ching Kut. This sale was registered via Memorial No.72730. The second memorial shows that on 6th February 1934, Lot Nos.3719, 3720, 3721, 3722, 3723, 3973 and 3974 in D.D.104 were leased by Li Hok Ling alias Li Pun Sim as the lessor to Hing Wo Company as the lessee with Yim Kam Wo as manager. The lease was for a term of 40 years from 1st January 1934 and was registered by Memorial 89190. On 22nd February 1937, the same lots were surrendered via Memorial 99199. In the Memorial, it was stated that the instrument was a surrender of lease dated 6th January 1934. The lessee was stated to be Hing Wo Company and Yim Kam Wo. The lessor was stated to be Li Hok Ling alias Li Pun Sim.

30. The Defendant submitted that there was no explanation from the Plaintiff as to why the lessor was otherwise than the owner of the Property. It was submitted that these memorials, being ancient documents, were evidence of acts of ownership and thus evidence of title to the Property. As such, it was submitted there was doubt over whether Li Hok Ling alias Li Pun Sim had had any interest in the Property.

31. Mr Lee relied upon Halsbury's Laws of England, Vol.17, para.135 which says :

"An ancient document, such as a lease or licence, coming from proper custody, and purporting upon its face to show exercise of ownership, was at common law admissible without proof of possession or payment of rent as being in itself an ownership."

He also relied on the case of James Thomson Bristow and J.G. Livingstone v. Robert Cormican and C. Nelson (1878) 3 AC 641 where at page 653, Lord Cairns, LC, said :

"Old leases have always been considered to be admissible as being evidence of acts of ownership. I understand this to rest on the principle, that when at a distant period, as to which there is no more direct evidence available, you find a person claiming to be the owner of property, and willing to make himself responsible as lessor for the title to it, and another person willing to agree to give rent for the property and to enter into a solemn engagement as a tenant of it, admitting his landlord's title, these circumstances are of themselves admissible as evidence of the title."

Mr Lee submitted that the concern of the Defendant was not whether the lease was surrendered, but that the lease was an indication that the lessor might have ownership in the land. He said that the court had to look at all the requisitions and had to apply the "beyond a reasonable doubt" test to the risk of anyone coming to make a successful claim against the Purchaser.

32. On behalf of the Plaintiff, it was submitted that there was no legal principle to the effect that the lessor of a property must also be the registered owner thereof. It was submitted that the lessor might have been for example the attorney of the owner.

33. Mr Yeung relies on Woodfall on Landlord and Tenant, paragraph 11.269 which says :

"By agreeing to grant a lease, however, the intended landlord does not impliedly engage for a general warranty of the land, nor undertake to deliver an abstract of his title; nor that he has a good title to the fee simple, and will deliver a written abstract. But where the prospective landlord agrees to grant a lease, he does impliedly promise that he has title to grant such a lease."

Mr Yeung submitted that the lessor might not have title to grant the lease or there might have been some arrangement between the owner and the lessor. He submitted that there was no risk to the intended purchaser. He submitted that the lease had been surrendered so there could be no adverse claims from the lessor or the lessee. He said that the lessor might himself have been a lessee or a licensee, or he might have no interest at all. He said that in the last example, the lease would still be valid between the lessor and the lessee and if the lessee is evicted by the true owner because the lessor had no title, then the lessee could sue the lessor in damages.

Conclusion

34. I am satisfied that the lease which was entered into on 6th February 1934 was duly surrendered by the lessee to the lessor on 22nd February 1937. I am satisfied that the sale to Li Ching Kut on 2nd July 1929 was a valid sale and that the lessee Hing Wo Company and the lessor Li Hok Ling can have no legitimate or valid grounds to make an adverse claim against the Property. I therefore find that the requisition is unjustified and in any case was duly and sufficiently answered by the Plaintiff.

Additional requisition

35. In K&C's letter of 3rd November 1997, the requisition was worded as follows :

"It is noted in Agreement Memorial 50416 that Chiu Ying Luen and Chiu Fu Luen agreed with Tong Yip Co. with Mok Oi Tong and Li Tsik Hing as trustee for sale and purchase of Lot No.3719 (together with other property). In Assignment Memorial 50623 Chiu Ying Lun and Chiu Fu Lun assigned the said Lot (together with other property) to Tung Ip Tong with Mok Oi Tong, Tang King Shang, Li Chik Hing, Mok Kwai Tak and Chan Kwong Tsai as managers. Please account for the discrepancy respecting the assignee which was different from that appearing in the said agreement."

36. The Defendant in his submission repeated the submission relating to the six requisitions. The Defendant submits that whilst the Plaintiff contends that the two were the same entity, no explanation has been given by the Plaintiff as to why in the first memorial, two persons were named as trustees while in the second memorial, five were named as managers. The notations at the top of the two memorials which the Plaintiff relied upon were :

In the agreement for sale, Memorial 50416 where the purchaser is stated to be Tong Yip Co. trustee Mok Oi Tong, Li Chak Hing. At the top of that memorial were the words 'see M50623'; in the sale Memorial 50623 dated 12th December 1921, where the purchaser is stated to be Tong Ip Tong, manager Mok Oi Tong, Li Chak Hing, Chan Kwong Tsai, Tang King Shang and Mok Kwai Tak, at the top of that memorial are the words 'see Memorial 50416'.

In addition, against the name of Mok Oi Tong and Li Chak Hing were the words "of 133 Bonham Strand Hong Kong" and in the second memorial after the names of the five trustees were the words "of 133 Bonham Strand, Hong Kong".

The Defendant contends that the notations at the top of the two memorials showing cross reference with each other may only be said to show that the transaction under Memorial 50623 was related to the one under Memorial 50416, but do not show that the purchaser referred to in the two Memorials was the same entity.

Conclusion

37. I am satisfied that the words 'Yip' and 'Ip' are different transliteration of the same Chinese word. I am also satisfied, as I found above when dealing with the six requisitions, that the Tong Yip Co. was the same entity as Tong Ip Tong. This is fortified by the two cross reference notations in the two memorials and also by the fact that two of the trustees of Tong Yip Co. are mentioned by name and these two names are the same as two of the five names mentioned as managers of Tong Ip Tong. The address given of the two trustees in the first memorial and that of the five managers in the second memorial was the same in each case. I am therefore satisfied that this requisition was unjustified and in any case was sufficiently answered by the Plaintiff.

Relief

38. In the circumstances, I grant to the Plaintiff the first two declarations sought by him in his Originating Summons. As agreed between the parties, there will be no order as to costs. I make no other order.