LAM KIU SHING alias LAM KIU, deceased v. YAU FUK, deceased

HCMP 1933/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1933 OF 2015

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J U D G M E N T

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1.  This is an application by petition based on the Land Transactions (Enemy Occupation) Ordinance, Cap 256, concerning a piece of land in Tai O, Lantau Island, on which a house has been erected and is now standing. These proceedings are brought, in effect, by Mr Lam Wing-kun for the estate of his late grandfather, Mr Lam Kiu‑shing, alias Lam Kiu.

2.  Mr Lam Kiu was a fisherman living in Tai O, Lantau Island.  He had three sons born in about 1903, 1908 and 1912 respectively and who grew up and lived in Tai O.  Mr Lam Kiu passed away in 1960, and his three sons passed away in 1966, 1975 and 2000 respectively. 

3.  Mr Lam Wing-kun, who represents the estate and has made the affirmations in support of this application, was born in 1939 and is now aged 76. 

4.  Mr Lam Kiu began to rent Lot No 67 in Demarcation District 302 from the then owners, namely Mr Yau Fuk and Mr Yau Hei-heng, alias Yau Hi-hing, during the Second World War.  Yau Fuk and Yau Hei-heng were brothers. 

5.  After the occupation of Hong Kong by the Japanese in 1941, Mr Yau Fuk apparently found it difficult to maintain a living for himself and his family.  In 1944, Mr Yau Fuk suggested selling Lot No 67 together with the rest of the land which is the subject of the present application, being Lot No 65 in Demarcation District 302, and Lot Nos 3 and 4 in Demarcation District 313, Lantau Island, to Mr Lam Kiu.  By December 1944, the other existing owner of the land, namely, Mr Yau Hei‑heng, as the evidence shows, had already died intestate. 

6.  Mr Lam Kiu agreed to purchase the land from Mr Yau Fuk for $10,500 Japanese Military Yen, which was equivalent to HK$3,000. On 23 December 1944, they executed an assignment in Chinese for the transfer of the land.  The other title deeds in respect of the land were also passed by Mr Yau Fuk to Mr Lam Kiu upon the assignment. 

7.  The assignment (the original of which was produced for inspection by this court) was, as shown on its face, sent to be stamped by an office, which is described in the stamps as “香港佔領地總督部” (which may be freely translated as the Governor-General’s Office of the Occupied Territory of Hong Kong), although it was never, apparently, registered separately at the Japanese House Registration Office.

8.  After acquiring the land, in about 1945, Mr Lam Kiu removed the temporary wooden house that he had earlier erected on Lot No 67, and built a brick house in which he and his family had since lived.  To date that house has been used and inhabited from time to time by members of the Lam family, who considered it their family house. 

9.  There has been no interference with their occupation of the house or the land over the years, nor has anyone asked them to leave or to pay rent, or otherwise disputed their right to live or cultivate there. 

10.  Mr Yau Fuk appears to have passed away in about May 1945.  In 1946, after the end of the Japanese occupation, Mr Lam Kiu took steps to try to have the title to the land formally transferred to himself.  He engaged solicitors in 1946 for that purpose, but by the time of his death in 1960, the title to the land had not yet been transferred to him. 

11.  His sons carried on the effort and wrote to the District Office to seek assistance in 1963 and again in 1972, in addition to personal visits to the District Office in 1972.  Unable to resolve the matter through the District Office, the third son of Mr Lam Kiu, Mr Lam Mau-yin tried to seek assistance between late 1973 and 1976 from the Office of the Unofficial Members of the Executive and Legislative Councils, but to no avail. 

12.  Since the 1990s, the matter has been entrusted to the third generation, who have now taken steps to procure the formal transfer of the legal title to the land to their grandfather’s estate. 

13.  I should mention that in the last few years, it appears that members of the Yau family had sought to change the particulars of the registration of the rate payer. Despite their efforts, however, the Lam family have been unable to locate or identify any of the members of the Yau family. 

14.  It is in these circumstances that a petition was presented to this court in August 2015, pursuant to the Land Transactions (Enemy Occupation) Ordinance, Cap 256. 

15.  The long title of the Ordinance states that its object is:  “To give effect to voluntary transactions affecting land during the Japanese occupation.” The background to and the purpose of the Ordinance have been described by HH Judge Mills-Owens (as he then was) in In the Matter of the Remaining Portion of Section C of Kowloon Inland Lot No 957 (1002 Canton Road), situate at Kowloon in the colony of Hong Kong [1958] HKDCLR 276, at 277, as follows:   

“During that period many transactions took place with respect to immovable property but the normal processes of registration at the Land Office under the Land Registration Ordinance (Cap 128) were suspended; in lieu thereof registrations were, on occasion, effected in records maintained by the Japanese authorities, and instruments so registered are referred to in the Land Transactions (Enemy Occupation) Ordinance as ‘Japanese assignments’. The object of this latter Ordinance is to regularise the legal position of persons now claiming through or under Japanese assignments by means of the execution and due registration of assignments in confirmation of the Japanese assignments.”

16.  Thus section 4(1) of the Ordinance provides that: 

“A Japanese assignment shall be construed and take effect as a valid and subsisting agreement by the assignor to assign on demand without further consideration ... the property to which such assignment relates in the form which would have been directed by the court prior to the Japanese occupation in a successful action for the specific performance of such an agreement.”

17.  Section 6 then makes provision for cases when legal proceedings need to be commenced in relation to any dispute or difference as to the construction or effect, or as to the liability of any person to assign or reassign or confirm the assignment of any property to which a Japanese assignment relates.  In particular, section 6(2) provides:  

“In the event of a person who seeks redress under this section being unable to issue a writ because he is unable to ascertain any person who may properly be joined as a defendant he may apply to the court by petition without preliminary service and if it appears to the court by evidence upon affidavit that all reasonable inquiries have been made and that the case is one to which this subsection applies then the case shall proceed on petition and-

(a) unless the court otherwise directs it shall not be necessary to serve the proceedings upon any person or to have recourse to any form of substituted service...”

18.  The Ordinance applies primarily to “Japanese assignment”, which is defined in section 2 to mean:

“an instrument registered or recorded in the Japanese registers purporting to relate to a disposition of any land, house or building otherwise than by way of mortgage or reassignment.”

19.  However, section 10 provides that under certain circumstances, assignments executed during the Japanese occupation may be treated as a Japanese assignment for the purpose of the principal provisions of the Ordinance despite not being registered at any Japanese House Registration Office. 

20.  In the present case, it appears that the assignment dated 23 December 1944 was not registered with the Japanese House Registration Office because it was thought that all the formalities required had been complied with by having the assignment stamped in the way that I have described earlier.  There is nothing to suggest that the failure to register the assignment at any Japanese House Registration Office was due to any clandestine or obnoxious reason.

21.  On the contrary, it appears that the assignment was done openly.  It was apparently witnessed by independent persons, and was sent to an authority of the occupying forces for stamping at the time.  It may also be noted that as soon as the occupation was over, Mr Lam Kiu took steps to have the formal title transferred to him. 

22.  I am therefore satisfied that by virtue of section 10 of the Ordinance, the assignment of 1944 is one to which the provisions of section 4 and 6, in particular, of the Ordinance apply, in like manner as if it had been a Japanese assignment within the meaning of the Ordinance. 

23.  I am also satisfied that the persons who might otherwise have been properly joined as defendants to these proceedings, namely representatives of the estate of Mr Yau Fuk, are persons that the petitioner is “unable to ascertain”, within the meaning of section 6(2) of the Ordinance.  As the Full Court made clear in In the Matter of Kowloon Inland Lot No 492 (No 496 Shanghai Street) [1949] 33 HKLR 305, at 310, the phrase “unable to ascertain any person” in section 6(2) includes a case where the petitioner is unaware of the identity or whereabouts of the person who could otherwise be properly joined as a defendant. 

24.  The evidence shows that reasonable efforts have been made to identify and locate any surviving descendant of Mr Yau Fuk.  In addition, notice of these proceedings and, in particular, of today’s hearing, has been given by advertisement in a widely read Chinese newspaper in Hong Kong in November 2015.  Despite these steps no one has approached the petitioner, his family, or his legal representatives in relation to that notice or these proceedings, and no one has appeared in court today to contest the petition.

25.  The assignment of 1944 appears to me to be, in all respects, valid except for the non-registration at a Japanese house register.

26.  I should also mention that Mr Yau Fuk and Mr Yau Hei‑heng appeared on the legal records as the owners together without it being specified whether they were joint tenants or tenants-in-common.  That being the case, they were presumed, at common law, to have held the legal estate as joint tenant.  Section 9(1) of the Conveyancing and Property Ordinance, Cap 219, which changed the common law, only came into effect in 1984 and does not affect any instrument made before the commencement of that section. 

27.  For these reasons, I shall grant an order pursuant to the petition.

(Discussion re order)

28.  I order that a confirmatory assignment of the land be executed in favour of the estate of Mr Lam Kiu under section 4 and section 6 of the Land Transactions (Enemy Occupation) Ordinance.  Pursuant to section 6(3) of the Ordinance, the Registrar of the High Court is to execute the confirmatory assignment in place of Mr Yau Fuk or any representative of his estate.