NG KWOK LAI AND ANOTHER v. NG WING KI

1998, No. HCMP3837

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

NO 3837 OF 1998

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J U D G M E N T

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1. This is a vendor and purchaser summons taken out by the plaintiff, who is the vendor of the property at Nos. 333 and 334 of DD123 in Yuen Long (the said property). The plaintiffs are in fact the managers of this Ng Kwok Tseung Tso, the registered owner of the said property. By a sale and purchase agreement dated 22 September 1997 the plaintiff agreed to sell and the defendant agreed to buy the said property for the sum of $980,000. The completion date was scheduled to take place on or before 31 August of 1998.

2. In or about March of 1998 the defendant's solicitor, Messrs Leung, Kin & Co., raised two requisitions on the title after they had been supplied with copies of the title deeds of the said property. The two requisitions related to two memorials, one dated 24 August 1909, that is memorial number 9643, and the other dated 11 December 1914, memorial number 28132. The memorial number 9643 was executed between one NG Chong-siu as vendor and WONG Shui-cheung, as purchaser. The memorial number 28132 was executed between WONG Sui-cheung, as vendor and NG Chong-siu as vendee.

3. In both memorials Mr WONG signed his name in Chinese in three characters appearing as WONG Sui-cheung (黃瑞章). It is the defendant's contention that there are discrepancies in the name of Mr WONG, in that in one memorial the English word for Shui is spelt S-H-U-I, whereas in the other memorial it is spelt as S-U-I. The defendant further contends that there are also significant discrepancies in the way in which the two Chinese signatures of Mr WONG that appear in the two memorials.

4. The law on this aspect is not in substantial dispute. As the purchaser, the defendant is of course entitled to ask for reasonable proof that the two signatures belong to the same person. The defendant is also entitled to be put in a position whereby there is no risk or there would not be any risk of a successful assertion against him of any encumbrances after he acquired the said property.

5. What is reasonable proof and whether there is any risk of a successful assertion of encumbrances of course is a question of fact and that depends on the factual background of each case. And to that extent the various authorities referred to by counsel may not be too helpful.

6. What I cannot ignore in this case is that the two memorials were executed a very long time ago. One 90 years and the other almost 85 years ago. From a realistic point of view, it is simply impossible to have anyone who was present at the time of the execution of those two memorials to be in a position to swear an affidavit or a statutory declaration to confirm the two Mr WONGs were in fact the same person. Although there was difference in the spelling of the names, one S-U-I, the other S-H-U-I, the difference in my view is minor and of course the names are phonetically similar or identical.

7. There may well be significant differences in the signatures of the Mr WONGs, but the signatures consist of the same three Chinese characters "WONG Sui-cheung" (黃瑞章) and there are also strong resemblances, at least in the characters "cheung" (章), which as Mr YUE pointed out were in fact a wrongly written character.

8. In both memorials, again as Mr YUE pointed out, the Mr WONGs were described as from the same place, Guangzhou. The other party to the two memorials was also the same person, namely NG Chong-siu, and one would reasonably expect that if the Mr WONG, in the two transactions, was not the same Mr WONG, then that would no doubt raise alarm and objections from the other party, NG Chong-siu.

9. I have considered the entire background of the case as well as counsel's helpful submissions. On the matter before this court I am satisfied that there is no risk at all of any successful assertion by anyone of the alleged encumbrances. If the Mr WONG who executed the memorial in 1909 is not the same Mr WONG who executed the memorial in 1914, one would have expected him and/or his successors or descendants to wonder from time to time what was happening to the property that the first Mr WONG owned. If they had taken the most elementary of steps they no doubt would have found out that the said property was sold in 1914, in which event one would have heard of it. But no such thing happened for over 80 years.

10. Any suggestion, in my view, that the title of the said property is defective because of the difference in the spelling of the name of Mr WONG and for his signature, is illusory and purely theoretical. In the light of the background and history of this case, I am also satisfied that the reply given by the plaintiff's solicitor to the requisition raised by the defendant's solicitor was adequate in the circumstances. That being the case, the plaintiff ought to be granted the relief prayed for.

11. I therefore order that the requisitions raised by the defendant had been sufficiently answered and the plaintiff had shown a good title to the said property. That being the case, under the relevant section of the Conveyancing and Property Ordinance, I have to give direction or consequential order as to the completion of the transaction in question. I propose to order that the parties are to complete the transaction in question perhaps just before the new year, Chinese New Year, on or before 15 February, which will give the parties more than a month.

[Discussion re instruction for date of commission]

12. In that case I give the further consequential direction. The completion of the transaction in question to take place on or before 1 April 1999.

13. The only outstanding matter is the question of costs? Subject to what counsel have to say, I think each party should pay their own costs in the light of the background and in the light of the discrepancies in question, and to that extent perhaps the concern demonstrated by the defendant is a reasonable one.

[Counsel agree]

14. In that case, there being no dispute on this matter I make no order as to costs.