TSU SZE YUEN STERLING v. LAND REGISTRAR

HCAL 388/2025

[2025] HKCFI 722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 388 OF 2025

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D E C I S I O N

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A.  Introduction

1.  This case appears to arise out of a simple confusion between the meanings of the words “affect” and “effect”, when used as verbs.

2.  The Applicant is the son of Madam Liu Siu Fong, who is the registered owner of two properties in Hong Kong (“Properties”). In light of her old age, Madam Liu decided to appoint her son (the Applicant) and her daughter (“Gloria”) as joint and several attorneys, so that they would be able to handle her properties and financial affairs should she become mentally incapacitated.

3.  Therefore, on 26 January 2024, Madam Liu executed an enduring power of attorney (“EPOA”), appointing the Applicant and Gloria as the two joint and several attorneys. It was an express term of the EOPA that the attorneys should have authority to act on behalf of Madam Liu to sell, lease or surrender her home or any of her immovable property.

4.  On 28 June 2024, the Applicant attempted to register the EOPA against the Properties under two memorials presented to the Land Registrar. However, by letter dated 31 July 2024, the Land Registrar withheld both memorials from registration, on the stated basis that the “instrument appears to be not affecting land”, and invited withdrawal from registration.

5.  On 6 August 2024, the Applicant sought to persuade the Land Registrar that, since the EOPA gave powers to the attorneys to act in respect of Madam Liu’s immovable properties, it is clearly an instrument by which land in Hong Kong may be affected, and so be registrable under section 2(1) of the Lands Registration Ordinance Cap 128 (“LRO”).

6.  By letter dated 8 November 2024 (received by the Applicant on 11 November 2024), the Land Registrar formally refused registration (“Decision”). The Decision was framed as follows:

(1) I refer to your letter dated 6.8.2024.

(2) Pursuant to Section 2 of the Land Registration Ordinance (Cap. 128) (“LRO”), an instrument may be acceptable for registration only if it affects the land. In the context of the LRO, it is the title to the land which must be affected and anything which either calls for a change of title or which may prevent or limit changes of title affects the land.

(3) In the present case, the subject instrument merely operated to give [Gloria and the Applicant] the authority to act on certain matters in relation to [Madam Liu], the Donor’s property and financial affairs but did not create any interest in land. It does not affect land and this is not registrable under the LRO.

7.  By letter dated 29 November 2024 from the Applicant’s solicitors to the Land Registrar, a further attempt to elicit justification from the Land Registrar was made, and it was also stated that the Applicant was considering seeking judicial review against the Decision. There was no reply to that letter.

8.  Now, by Form 86 dated 11 February 2025, the Applicant seeks leave to apply for judicial review so as to challenge the Decision. The Applicant ultimately seeks an order to quash the Decision, and an order of mandamus requiring the Land Registrar to register certified true copies of the EOPA against each of the Properties.

9.  Having considered the application materials, I am satisfied that it is appropriate to deal with this application on the papers. This is my decision.

B.  Section 2 of the LRO

10.  Section 2(1) of the LRO provides:

The Land Registry shall be a public office for the registration of deeds, conveyances, and other instruments in writing, and judgments; and all deeds, conveyances, and other instruments in writing, and all judgments, by which deeds, conveyances, and other instruments in writing, and judgments, any parcels of ground, tenements, or premises in Hong Kong may be affected, may be entered and registered in the said office in the prescribed manner.

C.  The Proposed Grounds of Review

11.  In the Form 86, the Applicant identifies three proposed grounds of review, as follows:

(1)  Ground 1: Error of Law in misconstruing section 2 of the LRO and/or the EPOA;

(2)  Ground 2: Error of Law – assuming that an instrument must “create an interest in land” for it to be registrable; and

(3)  Ground 3: Irrationality.

12.  Each proposed ground can be addressed in turn.

D.  Ground 1

13.  The Applicant refers to section 2(1) of the LRO, and in particular to the words “instrument in writing ... [by which] … any parcels of ground, tenements, or premises in Hong Kong may be affected”. On the basis that by the EPOA Madam Liu has conferred on the Applicant the authority “to sell, lease or surrender [her] home or any of [her] immovable property”, it is argued that the EPOA is clearly an instrument by which “premises in Hong Kong may be affected”.

14.  Hence, it is argued that the Land Registrar must have either misconstrued section 2 of the LRO or misunderstood the effect of the EPOA, either of which was an error of law.

15.  With respect, it seems to me to confuse the meaning of the two words “affect” and “effect”. The making of the EPOA does not “affect” any interest in the Properties. Rather, the making of the EPOA identifies who can “effect” any dealing with the Properties.

16.  To put it another way, the EPOA merely identifies the power of the attorneys appointed by the registered owner of the Properties to be able to effect the selling, leasing or surrendering of the Properties on the registered owner’s behalf. Of itself, and as a matter of ordinary language, the EPOA does not affect the land; it only affects who can lawfully act in place of the registered owner when dealing with the interest in the land.

17.  This is what seems to me to have been correctly identified in the Decision, where the scrutineer stated the EPOA merely operates to give Gloria and the Applicant the authority to act on certain matters in relation to Madam Liu’s property and financial affairs.

18.  Ground 1 is not reasonably arguable with any realistic prospect of success.

E.  Ground 2

19.  The Applicant points to that part of the Decision where the Land Registrar stated that the EPOA only granted authority to act on certain matters “but did not create any interest in land”. The Applicant argues that the Land Registrar erred in taking the position that an instrument is only registrable if it creates an interest in land, because Hong Kong practices a system for registration of instruments, rather than registration of title.

20.  The Applicant refers to my previous decision in Edmund WH Chow & Co v Land Registrar [2023] HKCFI 1269, in support of the proposition that an instrument does not have to create an interest in land qualify for registration under section 2 of the LRO, nor would such registration confer any title or interest in land.

21.  Had the Decision been based solely upon the contention that the EPOA did not create an interest in land, there might have been more merit in this proposed ground of review. However, I do not think that is the fair way to read the relevant part of the Decision in context. Although not phrased as clearly as it might have been, I read the relevant part of the Decision – see quoted above – as drawing the distinction between (1) a person’s authority to act on matters in relation to land and (2) something which affects the land.

22.  Indeed, the very next sentence of the Decision specifically goes on to state that the EPOA “does not affect land and thus is not registrable under the LRO”. Hence, the determining factor leading to the Decision that the EPOA is not registrable was simply that the EPOA does not affect land. For the reasons I have identified in relation to the proposed Ground 1, that does not seem to me to be reasonably arguably incorrect. In any event, by virtue of my view on proposed Ground 1, any error as is sought to be identified by proposed Ground 2 is academic.

23.  Ground 2 is not reasonably arguable with any realistic prospect of success.

F.  Ground 3

24.  The Applicant argues that, because the Land Registrar has expressly recognised that the EPOA operated to give Gloria and the Applicant the authority to act on certain matters in relation to Madam Liu’s property, it is irrational for her then to conclude that the EPOA does not affect the land. That is said to make the Decision “unintelligible”.

25.  However, this argument again seems to me to be based upon a misunderstanding of the language of section 2. The Land Registrar has recognised that the EPOA gives authority to Gloria and the Applicant, for example, to effect a sale of the Properties. But that grant of authority does not affect the land.

26.  Ground 3 is not reasonably arguable with any realistic prospect of success.

G.  Result

27.  In the circumstances, the Applicant’s application for leave to apply for judicial review stands to be dismissed. I so order.

28.  I make no order as to costs.