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The Hongkong Chinese Bank, Ltd. v Onlink Investments Ltd. And Others

Judgment Cited authorities 11 Cited in Precedent Map Related
Vincent
Judgment Date08 March 2002
Year2002
Citation[2002] 1 HKLRD 508
Judgement NumberHCMP1448/1998
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCMP001448/1998 THE HONGKONG CHINESE BANK, LTD. v. ONLINK INVESTMENTS LTD. AND OTHERS

HCMP1448/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.1448 OF 1998

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IN THE MATTER OF ALL THOSE 13 equal undivided 13,531st parts or shares of and in ALL THAT piece or parcel of ground registered in the Land Registry as THE REMAINING PORTION OF INLAND LOT NO.8398 And of and in the messuages erections and buildings thereon known as BRAEMAR HILL MANSIONS Nos.15-43 Braemar Hill Road ("the Estate") TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT FLAT C on the TWENTY THIRD FLOOR of BLOCK 7 of the Estate and SECONDLY ALL THAT CAR PORT NO.B19 on the Basement of the Estate

AND
IN THE MATTER OF FIRST ALL THOSE ten equal undivided 2,610th parts or shares of and in ALL THAT piece or parcel of ground registered in the Land Registry as SECTION A OF INLAND LOT NO.8209 And of and in the messuages erections and buildings thereon known as "FU KAR COURT" of FORTRESS GARDEN, 32 Fortress Hill Road, Hong Kong ("the Building") TOGETHER with the full and exclusive right and privilege to hold use occupy and enjoy ALL THAT FLAT B on the TWENTY EIGHT FLOOR of the Building and SECONDLY ALL THAT one equal undivided 120th part or share of and in ALL THOSE 120 equal undivided 2,610th parts or shares of and in ALL THAT piece or parcel of ground registered in the Land Registry as SECTION A OF INLAND LOT NO.8209 And of and in the messuages erections and buildings thereon known as "FU KAR COURT" of FORTRESS GARDEN, 32 Fortress Hill Road, Hong Kong TOGETHER with the full and exclusive right and privilege to hold use occupy and enjoy ALL THAT SINGLE CAR PARKING SPACE NO.23 on the LOWER GROUND FLOOR of the said FU KAR COURT

AND
IN THE MATTER OF ALL THOSE 46 equal undivided 3,166th parts or shares of and in ALL THAT piece or parcel of ground registered in the Land Registry as THE REMAINING PORTION OF TSUEN WAN INLAND LOT NO.32 And of and in the messuages erections and buildings thereon known as TECHNOLOGY PLAZA Nos.29-35 Sha Tsui Road, Tsuen Wan, New Territories ("the said Building") TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THOSE UNITS "1", "2", "3" & "4" ON THE TWENTY THIRD FLOOR of the said Building

AND
IN THE MATTER OF a Deed of Mortgage dated the 4 day of April 1997 and registered in the Land Registry by Memorial No.7041097

AND
IN THE MATTER OF a Guarantee dated 1 April 1997

AND
IN THE MATTER OF Order 88 Rules of the High Court, Cap.4

BETWEEN
THE HONGKONG CHINESE BANK, LIMITED Plaintiff
AND
ONLINK INVESTMENTS LIMITED 1st Defendant
TAI LING LING 2nd Defendant
LEE LIN HEUNG 3rd Defendant
K-MAX LIMITED 4th Defendant
SINO-LINK MARKETING SERVICES LIMITED 5th Defendant
WARREN MANN 6th Defendant

(By Original Action)

AND BETWEEN
LEE LIN HEUNG Plaintiff
AND
THE HONGKONG CHINESE BANK, LIMITED 1st Defendant
TAI LING LING 2nd Defendant

(By 3rd Defendant's Counterclaim)

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Coram: Deputy High Court Judge Muttrie in Court

Dates of Hearing: 18-21 February 2002

Date of Judgment: 8 March 2002

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J U D G M E N T

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1. The plaintiff claimed against the defendants by Originating Summons for possession of Flat B on 28th Floor and Car Parking Space No.23 on Lower Ground Floor, Fu Kar Court, Fortress Garden, 32 Fortress Hill Road, Hong Kong under a mortgage dated 4 July 1997 ("the 1997 mortgage"). This is the trial against the 3rd defendant. There is also a monetary claim against her for a sum which is now over $14 million.

Background

2. The various defendants are companies and individuals related by family ties. The 2nd defendant, Madam Tai Ling Ling, is the daughter of the 3rd defendant, Madam Lee Lin Heung and Mr Tai Chuen Fong. She is the wife of the 6th defendant, Mr Warren Mann Kin Kwong. He is a shareholder in the 1st defendant which is the owner of a flat in Braemar Hill Mansions ("the BHM property") which he and the 2nd defendant occupied as their residence. One of the 2nd defendant's brothers, Tai Po Lun Jonathan, is a director of the 1st defendant. The 4th defendant, which is a limited company having common directors with the 1st defendant, is the registered owner of property in Technology Plaza, Nos.29-35 Sha Tsui Road, Tsuen Wan, New Territories ("the TP property"). The 5th defendant is a limited company of which the 2nd and 6th defendants are the shareholders and directors.

3. By an assignment dated 2 March 1993 ("the Assignment") the 2nd and 3rd defendants became the owners, as joint tenants, of the suit property. It was on the same date mortgaged to the Hong Kong and Shanghai Banking Corporation (by an "all monies" legal charge) to secure a home loan of $1,995,000. This mortgage ("the 1993 mortgage") was later discharged on 31 March 1995 and mortgaged again to the plaintiff, along with the BHM and the TP properties, to secure banking facilities for one Woonli Ltd which was connected with the 4th defendant by a common director. Then on 4 April 1997, that mortgage ("the 1995 mortgage") was discharged and the suit property was mortgaged again to the plaintiff along with the BHM and TP properties to secure banking facilities for the 5th defendant. The 5th defendant failed to pay its debts to the plaintiff which has obtained monetary judgments against it and the other defendants.

4. The 3rd defendant comes into this matter because of a general power of attorney ("the POA"), dated 24 August 1992, purportedly granted by her in favour of the 2nd defendant. The latter signed both the provisional and formal sale and purchase agreements for the purchase of the suit property as attorney as well as on her own behalf, but a signature in the name of the 3rd defendant appears on the Assignment and the 1993 mortgage. All the documents are ex facie validly executed.

5. The 3rd defendant's defence in brief is that in 1993, while she and her husband were living and doing business in England, she told the 2nd defendant to find a property for her to buy in Hong Kong as a retirement home. The 2nd defendant found the suit property for her. She put up the money to buy it and gave that money to the 2nd and 6th defendants. On 2 March 1993 at the 2nd defendant's home, in the presence of one Simon Chan, a solicitor, she signed three or four documents, in English, which she did not understand and which were not interpreted to her, but she believed that they were for the purchase of the property by herself alone, and nothing else. She knew nothing about any mortgage until the proceedings were commenced and she never intended to mortgage the suit property to anyone.

Evidence

6. Evidence for the plaintiff comes from Mr Simon Chan, the solicitor who prepared the POA and the 1993 mortgage and assignment, and Mr Philip Fu, the solicitor who prepared the 1997 mortgage.

7. Mr Simon Chan said that he came to know the 6th defendant, Mr Warren Mann, in 1992. He was instructed by Mr Mann in the purchase of the BHM property by the 1st defendant, whose shareholders and directors were Mr Mann's parents. Mr Mann instructed him to prepare a special power of attorney for signature by Mr Tai, the husband of the 3rd defendant and Mr Mann's father-in-law, to authorise Mr Mann to act for him in the sale of a property at On Kwok Villas. This he did and he acted in the sale of this property; and in due course he handed over the balance of the proceeds of sale to Mr Mann.

8. He said that on 24 August 1992 Mr Mann contacted him and instructed him to prepare a general power of attorney to be signed by the 3rd defendant in favour of the 2nd defendant. This he did and took it to Mr Mann's home in Braemar Hill Road for signature the same evening, for he lived nearby. He said that he fully explained the document to the 3rd defendant, and in particular its effect as a general power of attorney; it would enable the donee to sell all the donor's property and to withdraw money from the donor's bank accounts. He also explained the need to have confirmation of non-revocation if the power was to be used in conveyancing after it was one year old. The 3rd defendant said that she understood that and she trusted her daughter. The POA was then duly signed by the 3rd defendant and attested by Mr Chan. Mr Mann made a copy with his fax machine and Mr Chan was asked to retain the original, since he was to act in the conveyance once a property was found.

9. Mr Chan said that he wanted copies of the Hong Kong identity cards of both the donor and the donee and asked Mr Mann to copy them. Mr Mann could not make copies with his home fax machine, but undertook to send the copies the next day. Two days later he sent from his own office at Bayer China a fax message showing the two identity cards and bearing the usual fax machine print of the sender's name and the date and time of sending which was 26 August 1992 at 10:31 a.m. Mr Chan kept it on his file, and a copy of it is before me.

10. Mr Chan said that the 2nd defendant telephoned him in November 1992 saying that she intended to buy a property in Fortress Garden. She was with an estate agent and wanted to know if she could sign the provisional sale and purchase agreement, because she was to buy jointly with the 3rd defendant. Mr Chan advised her that she could do so but the 3rd defendant's name should be shown as a purchaser. The next...

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