RE LEE WONG CHIU NGAN (“the Deceased”)

HCMP 2200/2022

[2023] HKCFI 667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2200 OF 2022

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D E C I S I O N

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1.  Before me is an application to vacate the registration of an assent at the Land Registry on the ground that it is void, hence it does not affect land and is not a registrable instrument under the Land Registration Ordinance (Cap 128).

2.  The applicant is the daughter of Madam Lee Wong Chiu Ngan (“Deceased”) who passed away intestate in Hong Kong on 29 September 2010. Letters of Administration to the Deceased’s estate were granted to the applicant on 22 March 2012.

3.  One of the properties of the Deceased’s estate is a residential flat at Flat G, 13^th Floor, Block 6, Yuet Wa Villa, No 2 Wu Sau Street, Tuen Mun, New Territories (“Property”).

4.  The applicant and her brother are the only beneficiaries of the Deceased’s estate. They agreed that the Property shall be vested on them as joint tenants and executed an assent (“Assent”) to such effect on 25 September 2012 which was then registered at the Land Registry on 18 October 2012.

5.  It was only in February 2013 when the applicant realized that the Property was acquired by her late parents under the Home Ownership Scheme Phase 15A Private Sector Participation Scheme and is therefore subject to the Housing Ordinance (Cap 283). Any transfer of the Property requires the payment of premium or the consent of the Housing Authority, or it shall be void. The applicant therefore wrote to the Housing Authority seeking its consent for the transfer of the Property to herself and her brother. The Housing Authority issued a “no objection” letter on 16 April 2013. The applicant thought that any defects in relation to the transfer of the Property under the Assent was regularized. That letter however did not in fact signify the Housing Authority’s consent to the transfer of the Property. Rather, it imposed conditions for any such transfer to take place, one of which is that a draft assent must first be approved by the Housing Authority. This was never done. Prior to its execution, or at any time, the Assent was never approved by the Housing Authority.

6.  In early 2022, the applicant instructed solicitors to deal with the Property for the purpose of sale. She was advised that the Assent is void because no prior consent of the Housing Authority was obtained and no premium was paid. The applicant’s proposal to execute a confirmatory assent to rectify the problem was rejected by the Housing Authority, given it is the Housing Authority’s policy not to give retrospective consent to a previous assent. This led to the execution of a fresh assent (on terms approved by the Housing Authority) in September 2022, which assigned the Property to the applicant as the sole owner given the applicant’s brother has agreed to waive and relinquish all his rights and interests in the Property.

7.  In such circumstances, the Assent which seeks to transfer the Property to the applicant and her brother without the prior consent of the Housing Authority nor payment of premium is void since its inception by operation of s.17B(1) of the Housing Ordinance. The Assent therefore has no effect, and does not affect and is incapable of affecting land, rendering it not registrable at the Land Registry. It should be removed from the Land Registry to clean up the title of the Property for future disposal. The court has inherent jurisdiction to grant a declaration of its non-registrability and to vacate its registration from the Land Registry: Wong Kum Chi v Lee Tit Ying [2003] 1 HKLRD 594. For these reasons, it is appropriate for me to make an order in terms of the Ex-Parte Originating Summons dated 29 December 2022 (subject to minor amendments discussed with counsel at the hearing). There shall be no order as to costs.