LAM KIN I v. TSUI MING YEE

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS No. 361 OF 1989

___________

______________

J U D G M E N T

______________

1. This is another dispute between vendor and purchaser in which a question arises on the title because of a discrepancy between two signatures, each purporting to be that of the same person, in the title deeds.

2. The question I have to consider arises under an Agreement dated 3rd January 1989 under which the plaintiff is the purchaser and the defendant is the vendor.

3. The property the subject of the Agreement is Flat A, 12th floor, Kingsfield Mansion 457-459 King's Road.

4. The Agreement provides that the vendor shall show a good title to the property. There is no provision in the Agreement which deals with the matter of the discrepancy between the two signatures to which I have referred. It will not accordingly avail the vendor to show a good holding title. The vendor must show a good title.

5. The law is not in dispute. The purchaser is entitled to demand "reasonable proof" (to use the words used by Mr. Justice Clough in Kan Wing Yau v. the Hong Kong Housing Society, [1988] Hong Kong Law Reports 187 at page 199I) that the two signatures are those of one and the same person. The only question I have to decide is whether the purchaser has been afforded such reasonable proof. Before I turn to this I must refer in some detail to the instruments in question.

6. The first instrument is an Assignment dated 18th March 1960 ("the 1960 Assignment). The purchasers under the 1960 Assignment were John Tin On Wong, described as authorised auditor, and Emily Sheung Ping Wong, described as a married woman, both of the same address. The purchasers took the property as joint tenants. Each is expressed to have executed the 1960 Assignment in the presence of a solicitor. The purchasers are not described (as is the vendor) as having been previously identified by the attesting solicitor. The allegedly discrepant signature is that of John Tin On Wong contained in a subsequent instrument that dated 23rd April 1977 (the 1977 Assignment). Between the date of the 1960 Assignment and the 1977 Assignment, the joint tenancy between the purchasers had been severed by a deed dated 9th December 1975 but I have not been afforded with a sight of that deed. In the 1977 Assignment, John Tin On Wong is described, in the attestation clause, as the holder of British Passport No. C004975 and Emily Sheung Ping Wong is described as the holder of British Passport No. C004976. The execution by John Tin On Wong and Emily Sheung Ping Wong of the 1977 Assignment was testified by a Barrister, solicitor and notary public in Ontario, Canada.

7. The difficulty to which the purchaser draws attention is that the signature adopted by the person described as John Tin On Wong in the the 1960 Assignment differs significantly from the signature adopted by the John Tin On Wong named in the 1977 Assignment. The purchaser is, on this factual point, correct. There is a material difference or discrepancy between the two signatures. That being so, the vendor is not entitled to rely on section 23 of the Conveyancing and Property Ordinance (which gives statutory effect to the presumption of due execution) nor, I may add, is the vendor entitled to rely on the presumption that an ancient document has been properly executed because it proves itself; the 1977 Assignment is of course less than 20 years did, and it is a period of 20 years which is needed before the rule applies that a private document, produced from proper custody and otherwise free from suspicion, proves itself.

8. It follows that in this case it is necessary for the vendor to produce to the purchaser reasonable proof that the signatory calling himself John Tin On Wong in the 1960 Assignment is the same person as the signatory calling himself John Tin On Wong in the 1977 Assignment.

9. The judgment of Mr. Justice Clough to which I have referred contains nothing to indicate what sort of proof might in circumstances such as this be regarded as reasonable proof. But I am satisfied that what is necessary is what we sometimes called "proper conveyancing evidence". For example, a statutory declaration by a person, able to declare the truth of the facts stated, that the two signatories were one and the same person would suffice. The best evidence would of course be a statutory declaration from John Tin On Wong himself to that effect. But, failing him, anybody else who could speak to the truth of the facts would do. There is however no statutory declaration to that effect offered by the vendor to the purchaser here. Nor is there any other conveyancing evidence which can be properly so described. Indeed, in the 1977 Assignment John Tin On Wong is described as "authorised auditor" but as "gentleman"; and the address of John Tin On Wont is no long the address in Hong Kong given in the 1960 Assignment but is now an address in Ontario, Canada. Against that the vendor points, correctly, to the fact that the 1960 Assignment and the 1977 Assignment are both instruments to which John Tin On Wong and Emily Sheung Ping Wang were parties in the first case as purchasers and in the second case as vendors. Taking the property jointly as they did in 1960 and seeking Jointly as they did to convey the property in 1977, is, says the vendor, strong circumstantial evidence that the two signatories were one on the same person, notwithstanding the fact that the signatures which he adopted are materially different the one from the other in the two instruments.

10. The question then, on the facts, of this case, is whether the circumstantial evidence is sufficient to satisfy the requirement of reasonable proof.

11. I have no doubt that the circumstantial evidence is a pointer to the conclusion that the two signatories are in fact that of the same person. But I am not satisfied that that is enough. A pointer is not evidence. Circumstantial evidence is not sufficient. Proper conveyancing evidence demands more than this. It demands something on the lines of the statutory declaration to which I have referred, or some other evidence which will satisfy this purchaser, and any purchaser from him, that the title is good one. While this circumstantial evidence may be enough to convince me, I cannot, objectively speaking, take the view that it would be unreasonable for this or a subsequent purchaser to suggest that it is simply not enough. I am not entitled to force a doubtful title upon the purchaser.

12. For these reasons, I find myself constrained to declare that the objections taken by the purchaser to the title, on the ground of the discrepancy between the two signatures, has not been satisfactorily answered; and I think it must follow that the purchaser is now entitled to a declaration that he is entitled to rescind the agreement. I propose to make those declarations accordingly. The defendant must pay the Plaintiff's costs of this application.