G.B. INDUSTRIES LTD. v. YU CHUNG KWOK AND ANOTHER

1994, No. M.P.1060

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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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 (the purchaser) against the defendant (the vendor) pursuant to s.12 of the Conveyancing and Property Ordinance, Cap.219.

2. By an agreement for sale and purchase dated 18th March 1994 made between the 1st and 2nd defendants and the plaintiff, the defendants agreed to sell to the plaintiff the premises known as Flat A, 35th Floor, Bel Mount Garden, Nos.7 and 9 Caine Road and Nos.15 and 17 Arbuthnot Road, Hong Kong erected on subsection 3 of section B of Inland Lot No.141 at the price of $5.6 million. The plaintiff's solicitors had raised quite a number of requisitions. These were reduced to two at the first hearing before me which was adjourned to enable the parties to try to resolve them and/or the defendants to produce further proof of their title. Finally there is only one outstanding requisition which the plaintiff said the defendants had still failed to answer sufficiently.

The facts which are relevant to this issue are as follows.

(1) By an assignment dated 28th January 1953, the property situated at Nos.7 and 9 Caine Road and Nos.15 and 17 Arbuthnot Road, Hong Kong and known as subsection 3 of Section B of Inland Lot No.141 was assigned to 20 purchasers including one person called Mr Chau Tsan San whose address was stated as No.29 Mosque Street, Ground Floor, Hong Kong.

(2) By a general Power of Attorney made on 12th May 1989, a person described as Mr Chau Tsan alias Chau Tsan San with anaddress of No.15 Arbuthnot Road, 1st Floor, Hong Kong appointed one Mr Chau Ho Ming to be his lawful attorney.

(3) By an assignment dated 29th May 1989, and executed by Mr Chau Ho Ming as such lawful attorney, Mr Chau Tsan alias Chau Tsan San assigned his share and interest in the property including the exclusive occupation of the G Floor or Mezzanine Floor of No.15 Arbuthnot Road to a company called Gold Coral Limited.

(4) This company and other land developers apparently purchased all the units in this property and an adjacent property. They demolished the buildings standing thereon and redeveloped the same into a multi-storey building which is now known as the Bel Mount Garden.

(5) The defendants purchased the present premises from the land developers and now agree to sell the same to the plaintiff.

3. It is clear from the documents that there are two discrepancies. First, in the 1953 Assignment, one of the purchasers was called Mr Chau Tsan San whereas in the 1989 Assignment, the vendor was called Mr Chau Tsan alias Chau Tsan San who was the donor of power under the Power of Attorney. Second, the signature of Mr Chau Tsan San in the 1953 Assignment is clearly different from the signature of Mr Chau Tsan alias Chau Tsan San in the Power of Attorney. The 1989 Assignment was of course signed by the attorney and not by Mr Chau Tsan alias Chau Tsan San. Although there is the discrepancy in the signatures in the two documents and the difference in the names, that is basically a question of identity.

4. I think the only issue before me is whether the person who was the vendor in the 1989 Assignment and who had given a Power of Attorney in favour of Mr Chau Ho Ming to execute that assignment on his behalf was the same person as one of the 20 purchasers in the 1953 Assignment.

5. Counsel for the plaintiff submitted that it was for the defendant (vendor) to show good title and to remove all possible doubts relating thereto. The defendant relied on a statutory declaration by Mr Chau Ho Ming, the donee under the Power of Attorney who executed the 1989 Assignment on behalf of the vendor and also a draft statutory declaration by a Mr Lam Fai Tak, the solicitor who attested the execution of the Power of Attorney. The plaintiff, however, submitted that these two statutory declarations were not sufficient to remove the doubt created by the difference in the names appearing in the 1953 and 1989 Assignments and the difference in the signatures in the 1953 Assignment and the Power of Attorney. It was pointed out that the statutory declaration by Mr Chau Ho Ming was not good enough because he was an interested party. Counsel relied on Lam Kin I v. Tsue Ming Yee, HCMP No.361 of 1989; Chudai (Hong Kong) Development Co. Ltd. v. Portia International Ltd., [1992]1 HKLR 350; and Sera Ltd. v. Excelling Profit Investments Ltd, CA No.137 of 1992.

6. I should perhaps refer to the statutory declaration of Mr Chau Ho Ming and the draft statutory declaration of Lam Fai Tak in greater detail.

7. In Mr Chau's statutory declaration, he declared that he was the lawful son of Mr Chau Tsan who was also known as Chau Tsan San. He further said that the name of Chau Tsan San had been used by his father in holding the property which was the subject matter of the 1989 Assignment. Finally he said that Chau Tsan and Chau Tsan San referred to one and the same person, i.e. his father, and that his father was the registered owner of that property.

8. In the draft statutory declaration to be made by Mr Lam Fai Tak, solicitor, he said that he attested the execution of the Power of Attorney by Mr Chau Tsan alias Chau Tsan San in favour of Mr Chau Ho Ming who was his son. He further declared that "the Power of Attorney was executed upon the identification of the Donor Chau Tsan alias Chau Tsan San by the production of his Hong Kong Identity Card No.XXXXXXX." The wording in the draft statutory declaration can of course be improved. However, as it now stands, it shows that the person who was later to execute the Power of Attorney had produced his identity card to Mr Lam, that Mr Lam had checked the identity card and was satisfied that that person was called Chau Tsan alias Chau Tsan San and that that person was the father of Mr Chau Ho Ming. Mr Lam also witnessed his signature on the Power of Attorney. That, I think, is the effect of Mr Lam's statutory declaration.

9. In the case of Lam Kin I, there was a discrepancy in the two signatures appearing in two documents. Godfrey, J. (as he then was) followed the case of Kan Wing Yau v. The Hong Kong Housing Society [1988] HKLR 187 and held that the purchaser was entitled to demand reasonable proof that the two signatures were those of one and the same person and that what was necessary for such proof was proper conveyancing evidence. The learned judge there went further and suggested the following as examples of "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 of John Tin On Wong himself to that effect. But, failing him, anyone else who could speak to the truth of facts would do."

10. That case is clearly distinguishable from the present. There was no such statutory declaration of any kind offered by the vendor to the purchaser. Hence, the learned judge held that good title had not been shown. This was despite the fact that in the earlier document, the person in question John Tin On Wong executed it with his wife and in the second and subsequent document, another person who described himself as John Tin On Wong but with a different signature also signed with his wife.

11. Each case must be decided on its own facts. The amount of "proper conveyancing evidence" required depends on the circumstances in each case. There is evidence in the present case in the form of statutory declarations. Looking at the two statutory declarations in question, I think that they can be regarded as reasonable proof in the sense that they are proper conveyancing evidence. Mr Chau Ho Ming is of course the donee of power. However, he is the son of the donor and is certainly one of the best persons to say whether Chau Tsan and Chau Tsan San refer to one and the same person. If, according to Godfrey J. (as) he then was), the statutory declaration of the person whose signatures appeared to be different in two documents can be accepted as proper conveyancing evidence, (in fact the learned judge said that was the best evidence), I see no reason why the statutory declaration of the attorney who was a son would not also suffice.

12. The only objection is that Mr Chau Ho Ming is an interested party. In the strict sense, that is correct. However, I do not see the decision in Sera Ltd. v. Excelling Profit Investments Ltd. as an authority saying that a statutory declaration made by an interested party should, as a matter of law, be disregarded. Nor did Bokhary J. (as he then was) in Chudai (Hong Kong) Development Co. Ltd. v. Portia International Ltd. hold such a view. A statutory declaration, like an affirmation in a civil litigation, must be made before an independent commissioner of oath who should not be involved in the transaction or litigation in question. This is an objection in form. A statutory declaration or affirmation will not normally be admitted or accepted if it does not satisfy a formal requirement unless such requirement is waived by agreement or with the leave of the court. A statutory declaration or affirmation made by a person who may be interested in the transaction or litigation does not fall within such category. It is, in my opinion, a matter of weight to be attached to a statutory declaration which is made by an interested party having regard to all the circumstances of each case.

13. In this case, Mr Chau Tsan alias Chau Tsan San was only one of the 20 purchasers in the 1953 Assignment. The whole property had been redeveloped into a new building consisting of multi-storeys. The statutory declaration made by Mr Chau Ho Ming was made on 31 st May 1989, i.e. a few days after the execution by him of the 1989 Assignment as an attorney. Apparently this statutory declaration was accepted by the solicitors not only for the vendor but for the purchaser at that time. I have now another statutory declaration with regard to the execution of the Power of Attorney in question. Mr Lam Fai Tak's draft statutory declaration will confirm that the Power of Attorney was properly executed by a person whom he was satisfied to be Mr Chau Tsan alias Chau Tsan San. Mr Chau Ho Ming confirms that that person was his father and the two names refer to the same person who was the registered owner of the premises. In these circumstances, I see no reason why I should not rely on such evidence. I am satisfied that there is sufficient proper conveyancing evidence that the Chau Tsan San in the 1953 Assignment is the one and same person as the Chau Tsan alias Chau Tsan San who executed the 1989 Assignment by his attorney. I therefore hold that the requisition raised by the plaintiff has been sufficiently answered by the defendants. That being the only outstanding requisition, I declare that there is a good title shown. I shall hear the parties on the question of costs.