BUILDON INVESTMENT CO LTD v. LEUNG SAI YUM AND ANOTHER

1989 No. MP2656

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDING

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J U D G M E N T

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1. This is a vendor and purchaser summons. Of the three requisitions on title delivered, two seek clarification of the identity of a beneficiary under a will from which the good root of title is derived and the remainder relates to the contents of what has been described as the missing deed dated the 31st December 1953. The plaintiff has withdrawn the last requisition. I should, therefore, say no more about this abandoned requisition.

2. The purchaser/plaintiff prays for a declaration that these requsitions as to identity of the said beneficiary under the said will have not been satisfactorily answered by the vendors/defendants.

3. A further declaration is sought to the effect that the vendors/defendants have failed to make out a good title to the subject property for sale.

4. By a will made on the 9th November 1971, the testatrix bequeathed the subject property to her sister, Madam Chan Woon Ling, Rosetta. Her residual estate was to devolve upon her husband, if surviving. The testatrix died on the 8th September 1979. After her death, as the named executrix the sister renounced her right to probate. The surviving husband applied for, and was granted Letters of Administration With The Will Annexed. An Assent for the subject property was thereafter executed by the surviving husband as administrator purportedly in due course of administration. I use the word "purportedly" advisedly because of the disagreement which has arisen between the parties to these proceedings. Later in time, the sister disposed of the subject property by sale.

5. All through the relevant documents I have mentioned, the name of the sister of the testatrix had been given the same Romanization for certain Chinese characters.

6. In the Will, the Renunciation and the Letters of Administration, the Chinese name of the sister is given in the same three Chinese characters. These Chinese characters for the name of the sister differ in the Assent and the subsequent documents, leading up to the document of transfer by which the plaintiff and the defendants are bound and in respect of which the present requisitions have been delivered.

7. The first Chinese character for the surname has remained constant. The second and the third Chinese characters for the name "Woon Ling" are different but with exactly the same radicals on the right. The radicals on the left for these two characters representing the name are varied (if I may throw in a little of my own expertise) from "fire" and "gold" to "hand" and "wong". Phonetically, they sound the same.

8. There are no unusual circumstances to set the parties to these proceedings on a course of enquiry. The Deed of Renunciation in the Probate File has been beyond the reach of as well the plaintiff as the defendants. When the relevant Probate File is inspected, the signature of the sister of the testatrix on the Deed of Renunciation bears quite a close resemblance to that appearing in the Deed of Assent. There again, nothing arouses suspicion.

9. The solicitor in charge of the execution of the Deed of Assent cannot be located after all reasonable enquiry. His firm has ceased operation for quite some time. Copy identity card of Madam Chan Woon Ling, Rosetta, has been produced but it also contains her name with characters in Chinese different from those in the Will, the Renunciation and Letters of Administration.

10. Investigation has been caused to be conducted in quest of some direct answers but in vain. On the documents before the court, the question for determination is whether the person described as Chan Woon Ling, Rosetta, in the Assent and the following Assignment shares the same identity with the beneficiary under the Will, in the Renunciation and the named executrix referred to in the Letters of Administration.

11. It is trite law that an Assent would prima facie pass a good title. Williams, Mortimer & Sunnucks on Executors, Administrators & Probate 16th ed. p.p. 954 & 956. See section 66 of Probate and Administration Ordinance, Cap. 10. It is also well settled that the identity of the party may be ascertained from the indicia of identity afforded by the very deed itself. See Emmet on Title, 19th Edn. para. 10.005.

12. The question that lies at the heart of this summons is whether the different Chinese characters for the name, not the surname, of Madam Chan in these documents constitute any real risk to a good title or, in other words, whether such difference has clouded the good title in the usual examination of the abstract.

13. I have been taken through the unreported judgment in Ma Chun-man v. Yung, Yu, Yuen & Co. (a firm) given by McMullin, J., as he then was, on the 14th December 1978 in High Court Action No. 3451 of 1977. The facts in that case may be conveniently summed up as follows : In 1972, a man who presented himself to a Toronto lawyer as the owner of certain Hong Kong property executed a Deed of Power of Attorney in Canada appointing an attorney in Hong Kong. Later in the same year, on the force of this Canadian Power of Attorney, an assignment was executed by its Hong Kong donee. The donor's signature as property owner on the Canadian Power of Attorney was strikingly dissimilar from the owner's signature in an assignment thitherto executed. The identity of the donor was at issue. After much enquiry, all the Canadian lawyer could supplement was that the donor had been known to him as a client in previous "business dealings". Such offered assistance from the Canadian lawyer was clearly not good evidence of identification. The dispute was resolved by the property owner executing a confirmatory assignment, but damages were claimed for delayed completion. From this brief account, it is evident that observations on evidence of identification and identity were made against an entirely different scenario.

14. In the instant application, the English name of the lady, Madam Chan had been consistent from first to last, including that in the Hong Kong Identity Card. The surname in Chinese character understandably suffers from no variation. The composition of the 2nd & 3rd Chinese characters is close in the sense I have described. They are phonetically identical giving the tune of "Woon" and "Ling". In the Will and all the subsequent documentation before the Assent, there had been uniformity in the name of Madam Chan both in English and Chinese. The identity card, issued in 1962 much earlier than the Will, carries two different Chinese characters for the name. The Assent and the subsequent conveyancing document follow the identity card. As I have said, the signature of Madam Chan in the Deed of Renunciation compares well with that in the Assent and the Deed of Assignment. There is no cause for alarm.

15. What is more important by way of indicia of identity is the recital in the Deed of Assent of particulars of the Will, the Renunciation, the Letters of Administration to the surviving husband and due course of administration. Falling short of fraud which is not at issue nor suggested, it is inconceivable that any error could have been committed in identifying the true beneficiary for taking under the Deed of Assent.

16. Counsel for the plaintiff is unable to provide any examples, real or imagined, of the beneficiary's interest being vested in a wrong recipient through misidentification or mistaken identity.

17. When one examines the Will, the testatrix and Madam Chan were residing then at different addresses: the testatrix and her husband at 79 King's Road, 3rd Floor and Madam Chan at 82 Fu Yan Street, 11th Floor, Flat 8. When it came to the Deed of Renunciation, Madam Chan retained her same address. By the time when the Letters of Administration were applied for, the surviving husband of the testatrix gave his address as No. 6, Dragon Terrace, Block C, 23rd Floor, Flat C2. When the Deed of Assent was executed with the telling recital, Madam Chan had apparently moved into the premises bequeathed to her, in which the testatrix and the surviving husband had formerly lived.

18. There could not have been any room for error on the part of the solicitor in charge, having recited the Will, the Renunciation, the Letters of Administration and due course of administration, with Madam Chan virtually in situ of the subject property at the time when the Deed of Assent was being prepared and thereupon executed.

19. All these badges or indicia of identity would thus be all the more compelling, with the beneficiary in possession, for drawing the inevitable conclusion that Chan Woon Ling, Rosetta, as mentioned in the Will, the Renunciation, the Letters of Administration, and the Deed of Assent, is the same person.

20. It is not essential to the validity of a document that the parties must be described with precision, though an accurate description is eminently desirable. See F. Goldsmith (Sicklesmere) Ltd. v. Baxter, [1971] Ch. 85. Madam Chan has been, in my view, conclusively identified as the same person in all the relevant documents material to the transaction pending between the plaintiff and the defendants.

21. It remains for me to declare that the requisitions of title as to identity of Madam Chan in the Deed of Assent Memorial No. 2312799 and the subsequent Assignment Memorial No. 2517446 have been satisfactorily answered. I further declare that the defendants have made out a good title to the subject property.

22. The plaintiff has abandoned one of the three points. In all fairness, one-third of the costs should go to the defendants. As to the other two-thirds, reflected both in number and by the time engaged in submissions, for resolving a significant point of mutual benefit, there should be no order as to costs. Subject to what counsel have to say, I would so dispose of the question of costs.