LAM KWOK HING AND OTHERS v. LAM SIU KEUNG AND OTHERS

HCA 2077/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2077 OF 2011

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JUDGMENT

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Introduction

1.  The plaintiffs are the trustees of the estate of Lam Tat Wing (LTW).

2.  The defendants are co-administrators of the estate of Lam Long Wai (LLW).  The 3^rd named defendant indicated in her acknowledgement of service that she did not intend to contest the proceedings.  The 1^st and 2^nd named defendants are referred to collectively as “the defendants”.

3.  LTW and LLW are co-owners of Section A of Lot No. 592 in Demarcation District No. 115 (the Land).

4.  The plaintiffs contend that the ratio of co-ownership between LTW and LLW is 3/5:2/5 while the defendants contend that the ratio is 11/20:9/20. The difference between the plaintiffs and the defendants is  1/20^th of the Land. The area of the Land is 10.06 acres or 40,425 sq. m.

5.  The plaintiffs also claim a partition of the Land.

Findings of fact

6.  The facts in this section (paragraph 7 to paragraph 17) are objective facts and I find them as facts.

7.  LTW, Lam Kai Fong (LKF), LLW and Lam Mung Hung (LMH) are brothers, referred to collectively as “the 4 brothers”.

8.  In April 1950, LKF, the then sole registered owner of the Land, transferred the Land to the 4 brothers.  The 4 brothers had since been co-owners of the Land in equal shares until the April 1972 transactions referred to in paragraph 10 below.

9.  Before the April 1972 transactions, the 4 brothers were co-owners of the following land:

(1) Lot No. 3527 in DD 120;

(2) Lot No. 592A in DD 115 (the Land);

(3) Lot No. 3528 in DD 120;

(4) Lot No. 1212B in DD 115;

(5) Lot No. 1212C in DD 115.

10.  On 11 April 1972, 4 memorials (the 4 memorials) in respect of transactions in respect of the lots referred to in paragraph 9 above were registered in the New Territories Administration:

11.  The “Division of Property” (DP) annexed to Memorial No. 170603 bears what appears to be a file reference number of “LR(D)18/71” and is undated.  It was signed by the 4 brothers.  The particulars in the DP are as follows:

12.  The Division Plan annexed to Memorial No. 170603 is dated 29 December 1971.  It shows sections A, B, C, D, and E of Lot No. 1212.  The particulars of the strip coloured R[ed] are “DD 115 Lot 1212B Area: 3.58 ac. 3rd class C/R $3.58 owned by [LMH]”.  The particulars of the strip coloured G[reen] are “DD 115 Lot 1212C Area: .04 ac.(H) 3.50 ac. 3rd class C/R $4.00 $3.50 owned by [LKF]”

13.  The Division Plan was signed by the 4 brothers stating:

“We mutually agree to the division of the property as indicated on this plan.

14.  By a document called “執照” and dated 2 September 1974, the District Commissioner, New Territories:

“… certify that [LLW] (2/5 shares) [LTW] (3/5 shares) … is at this date registered in the District Office, New Territories as owner of the undermentioned Lots in the New Territories.

…

N.B. – This certificate is given for the purpose of enabling landholders to identify their lands in the District Office registers and give no title whatever to the land, nor can this certificate be transferred or dealt with in any way whatever.

…

Demarcation District	Lot No.	Area	Class	Crown Rent
115	592A	10.06		$10.10”

15.  On 4 October 1976, the High Court granted Letters of Administration No. 1598 of 1976 to Tang Hang Yin, Chui Yee Man and the 3^rd named defendant, the wives/concubines of LLW.  In the Schedule of Property annexed to the Letters of Administration, LLW’s interest in the Land was said to be 2/5 share.

16.  About a decade later, LLW’s family applied in 2005 to amend the Letters of Administration to increase LLW’s interests in the Land from 2/5 to 9/20.  Digressing for one moment, neither the defendants nor their solicitors gave any notice to any member of the LTW family of the application for amendment.  As LTW was the only other co-owner of the Land, any increase in LLW’s share must result in a consequential and corresponding drop in LTW’s share.  Written notice should and could easily have been given by solicitors for the defendants but they did not.  I reject the allegation (which I disbelieve) that oral notice was given after the application was successful. In any event, notice of a fait accompli was less than helpful.

17.  On 2 December 2005, Mr Yeung Yun Por of Messrs Yeung Law & Co., the defendants’ solicitors, prepared a memorial for the registration of the amended Letters of Administration.  LLW’s share in the Land was said to be 9/20^th.  The Memorial No. is 05120602400013 registered on 6 December 2005.

The 170605 transaction

18.  The transactions memorialised in Memorial 170603 (the 170603 transactions) were straight forward. After the transactions, LMH became the sole owner of Lot No. 3528 in DD 120 and Lot No. 1212B in DD 115.  For the 170603 transactions alone, there would have been no need for the DP.  Moreover, the DP also covered 3 other transactions, namely, the 170604 transaction, the 170605 transaction and the 170606 transaction.  As noted earlier, the DP was signed by the 4 brothers  thereby signifying their consent to the division particularised in the DP. The fact that it was undated is in my judgment immaterial.  It was annexed to Memorial No. 170603 thus indicating the 4 brothers’  continuing consent up to and including the time of registration.

19.  The 4 memorials were said to be registered at 5 minute intervals at the times printed on the 4 memorials. 

20.  In my judgment, the 170603 transaction, 170604 transaction, 170605 transaction and 170606 formed part of a series of transactions, as particularised in the DP.  The 4 Memorials, the DP and the Division Plan formed part of the matrix of facts.

21.  It is clear that the DP listed ownership after completion of the series of transactions.  Thus the ratio of ownership of the Land of LTW and LLW after completion of the series of transactions was 3/5:2/5. The area of the Land was stated to be “10.06” [acres] which was the area of the whole of the Land.  This supported the view that the 3/5 share and 2/5 share were the respective share of ownership of the whole of the Land.  

22.  “[LLW], 2/5 shares, [LTW] 3/5 shares” in Memorial 170605 was in the box for the names of the parties. 

23.  “½ shares” was in the box for “Description of Land”.

24.  “[LLW], 2/5 shares, [LTW] 3/5 shares” in Memorial 170605 referred to LLW and LTW’s respective shares after completion of the 170605 transaction, not their shares of the ½ share. This is consistent with the DP. 

25.  Memorial 170605 is a memorial of a written instrument, not the instrument itself.  However, the memorial had been “certified as a correct Memorial according to Section 19 of the New Territories Ordinance (Cap. 97)” by the Assistant Land Officer, New Territories.   The 1964 revised edition of the New Territories Ordinance, Cap. 97, provided by section 19 that:

“For the purposes of this Ordinance, where a memorial of any deed, will or other instrument is certified by the Land Officer as correct, it shall not be necessary for such memorial to be verified in accordance with the provisions of section 7 of the Land Registration Ordinance.”

26.  Memorial 170605 is thus a correct memorial of the 170605 transaction, on completion of which LTW became a 3/5 owner of the Land and LLW became a 2/5 owner of the Land.

27.  The above disposes of the defendants’ claim of the 9:11 ratio.

4 other compelling reasons

28.  Further and in any event, there are 4 other compelling reasons why the agreed ratio was 2:3, nor 9:11.

Reason for the ratio

29.  Further and in any event, there should be a reason for the 4 brothers for departing from the obvious ratio of 1:1, to agree on the 2:3 ratio, as contended by the plaintiffs, or the 9:11 ratio, as contended by the defendants. 

30.  The plaintiffs put forward a reason for the 2:3 ratio.  The defendants put forward no reason whatsoever for the 9:11 ratio. 

31.  The defendants do not dispute that there was initially one pond in the northern part of the Land and a smaller pond in the southern part of the Land.  At some stage, the number of ponds in the Land increased to 4, with 2 in the north and 2 in the south. There is no evidence on the time of the increase of the number of ponds to 4. On the evidence before me, there were 4 ponds by 1972.  It was common ground that the LTW family had the benefit of the northern pond(s) and the LLW family had the benefit of the southern pond(s).  The 1^st named plaintiff’s evidence was that 3:2 was to reflect the rough ratio of the sizes of the northern pond(s) and southern ponds.  The defendants did not challenge the plaintiffs’ evidence on the 3:2 ratio of the rough sizes of the northern and southern ponds. A valid reason existed for LTW and LLW to agree on the 3:2 ratio.

32.  In sharp contrast, the defendants adduced no evidence on why the 4 brothers agreed on the 9:11 ratio.  The 1^st named defendant asserted in paragraph 16 of his supplemental witness statement that he had no clue on the 9:11 ratio:

“不過為何兩人最終的業權分數為9:11而不是1:1 ， 即(原文照錄) 不得而知 …” (emphasis added).

33.  Reason(s), if any, for the 9:11 ratio is a question of fact and opinion evidence is inadmissible.

34.  The 1^st named defendant went on to opine that may be 1:1 was only a rough figure and 9:11 was a rough figure for 1:1.  He conjectured that:

“… 可能1:1祇是一個約數， 而9:11乃1:1(即10:10) 的約數吧。”

35.  As I said in paragraph 33 above, this is inadmissible evidence. 

36.  Moreover, 1:1 is an exact ratio, not rough figures.

37.  The 1^st named defendant was not even consistent in his assertions on the ratio.  In his letter dated 20 November 2010 to solicitors for the plaintiff, he asserted that 2/5 and 3/5 was “convenient” language for 9/20 and 11/20.  He wrote:

“…皆因前輩分地用話多用宏數表達而少用微數表達 ， 後人多未有詳細留意。 就9/20和11/20為例， 我家前輩多用2/5和3/5作為方便語言。”

38.  If it were a matter of convenience, 1:1 would have been the obvious candidate.  2/5 and 3/5 are no more convenient than 9/20 and 11/20.

39.  In his letter dated 20 November 2010, he suggested that 2:3 was convenient language for 9:11.  In his sworn testimony, 9:11 became rough figures for 1:1.  Significantly, he confessed that he did not know the reason for the 9:11 ratio.

40.  All these point to 9:11 not being the agreed ratio.

The DP

41.  LLW and his 3 brothers signed the DP categorically setting out his share of the Land was 2/5 while LTW’s share of the Land was 3/5.  The defendants never explained why LLW signed the DP if the agreed ratio were 9:11.

The “執照” dated 2 September 1974

42.  The “執照” is an important document for land holders to deal with the New Territories Administration.  I draw the inference which I hold is irresistible that LLW and members of his family must have seen the “執照” within 2 years of its issue.  There is no allegation and no evidence of the LLW or members of his family communicating with the District Commissioner, New Territories, on the 2:3 ratio.  This is inconsistent with 9:11 being the correct ratio.

The 1976 Schedule of Property annexed to LA No. 1598/1976

43.  The defendants made no attempt to explain why the 2/5 share (which on their case was wrong) was put forward by LLW’s family in the probate as LLW’s share of the Land.

44.  Nor did they explain why no application for amendment had been made for about a decade between 1976 and 2005.

The “Expert” Evidence

45.  The defendants sought to adduce evidence from a person (the person) on the following questions or issues raised by the defendants’ solicitors:

(a) The general practice of land conveyancing in the New Territories in the 1970’s;

(b) Why was Memorial 170605 an isolated document without any attachment;

(c) The legal effect of Memorial 170605 – was it effective in conveying interests in the Land;

(d) The nature and legal effect of the “so-called Division of Property” annexed to Memorial 170603;

(e) Why was this Division of Property not registered against the Land;

(f) The nature and legal effect of the other Division of Property – Memorial No. 126153 – and its effects on the case.

46.  I can deal with the (a) – (f) listed in paragraph 45 above briefly.

47.  On (a), the DP and the 4 Memorials took place by April 1972. The conveyancing practice in the New Territories in the 1970s was before the time of the person who did not join the Registrar General’s Department, Land Office, until July 1980.

48.  On (b), if relevant, is a matter for me, not opinion evidence.

49.  On (c), the legal effect of a document is a question of law, and it is trite that opinion evidence is not admissible.

50.  On (d), the nature and legal effect of a document is a question of law, and it is trite that opinion evidence is not admissible.

51.  On (e), the reason for non-registration, if relevant, is a matter for me, not opinion evidence.

52.  On (f), the nature and legal effect of a document is a question of law, and it is trite that opinion evidence is not admissible. Its effect, if any, on the case is a matter for me, not opinion evidence.

Partition

53.  On the last day of hearing, the parties agreed that the Land should be partitioned and on how the Land should be partitioned. I see no reason to disagree.

Orders

54.  I order as follows:

(1) A Declaration that the late Lam Tat Wing and his estate was/are entitled to 3/5 undivided shares in Section A of Lot No. 592 in Demarcation District No. 115 (the Land) and the late Lam Long Wai and his estate was/are entitled to 2/5 undivided shares in the Land;

(2) An Order that the defendants shall at their own costs vacate the registration of the Letters of Administration (No. 1598 of 1976) by Memorial No. 05120602400013 against the Land;

(3) An Order that the defendants shall at their own costs vacate the registration of Probate (under HCAG No. 2611 of 2006) by Memorial No. 06061700020015 against the Land;

(4) The Counterclaim be dismissed;

(5) No order on the Counterclaim to Counterclaim;

(6) The Land be partitioned as shown in Mr Henry Chan’s drawing number HC-12873/11A dated 18 October 2013 with the larger portion going to the plaintiffs and the smaller portion going to the defendants;

(7) An order nisi under Order 42 rule 5B(6) of the Rules of the High Court,  Cap. 4A, that the plaintiffs’ costs of this Action, Counterclaim and Counterclaim to Counterclaim, including costs reserved, if any, be paid by the defendants to the plaintiffs, to be taxed if not agreed.

(8) Liberty to apply.