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HCMP 363/2002
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 363 OF 2002
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| IN THE MATTER of ALL THOSE 19 equal undivided 20th parts or shares of and in ALL THOSE 11 equal undivided 2,790th parts or shares of and in ALL THAT piece or parcel of ground situate lying and being at Kowloon, Hong Kong and registered in the Land Registry as KWUN TONG INLAND LOT NO. 395 And of and in the messuage erections and buildings thereon now known as "MAN WO GARDEN MANSION" (hereinafter referred to as "the Building") TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT FLAT U on the 14th FLOOR (or known as FLAT on the 14th FLOOR of BLOCK U) of the Building ("the Property") |
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AND
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| IN THE MATTER of an Instrument of Transfer by LEE WING CHONG （李榮莊）Memorial No. 8332048 pending registration at the Land Registry ("the Instrument") |
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AND
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| IN THE MATTER of Sections 19 and 20 of the Land Registration Ordinance, Cap. 128 |
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| BETWEEN |
| WONG KUM CHI alias WONG KIT SHAN Administratrix of the Estate of LEE WING CHONG deceased |
Plaintiff |
| AND |
| LEE TIT YING（李鐵英） |
Defendant |
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Coram: Deputy High Court Judge A Cheung in Court
Date of Hearing: 8 October 2002
Date of Judgment: 8 October 2002
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J U D G M E N T
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1. The Plaintiff is the widow and the administratrix of the estate of Lee Wing Chong, deceased. The deceased was the registered owner of a property known as Flat U on 14th Floor (or Flat on 14th Floor of Block U), Man Wo Garden Mansion, No. 38 Yuet Wah Street, Kowloon. Letters of Administration of the estate of the deceased were granted to the Plaintiff on 11 December 1998. The Letters of Administration have been duly registered in the Land Registry.
2. The Defendant is one of the beneficiaries of the intestate estate of the deceased and is in fact a natural son of the deceased. On a date unknown to the Plaintiff, the Defendant took possession of the property without authorization or permission from the Plaintiff as the administratrix of the estate. Proceedings were commenced in the District Court by the Plaintiff against the Defendant for the recovery of vacant possession of the property. The matter was heard by Master Chow of the District Court on 15 January 2001. The learned Master made an order in favour of the Plaintiff against the Defendant for the recovery of possession of the property.
3. An appeal against the master's order was dismissed by His Honour Judge Lok on 9 March 2001. Vacant possession of the property was recovered by the Plaintiff on 12 March 2001. In the proceedings in the District Court, the Defendant relied on a letter of instructions written by the deceased to a firm of solicitors, instructing the solicitors to prepare documents for the transfer of the subject property to the Defendant, as giving him an interest in the property and justifying his possession of the property as against the Plaintiff. That defence was rejected by Judge Lok when he dismissed the Defendant's appeal. His Honour ruled that the letter of instructions did not give the Defendant any interest in the subject property. It was a situation of an incomplete gift. From the decision of Judge Lok, there was no appeal by the Defendant. In those circumstances, the decision was and is clearly binding on the parties.
4. Yet on 10 March 2001, i.e. one day after the appeal was dismissed, the Defendant through his solicitors lodged the letter of instructions (i.e. the so-called "instrument of transfer") for registration in the Land Registry against the property. The Land Registry rightly, in my view, withheld registration of the so-called instrument of transfer which was lodged for registration by Memorial No. 8332048. That notwithstanding, a land search of the property in question clearly shows under the caption "Deeds pending registration" that there is pending for registration with the Land Registry against the property the so-called instrument of transfer.
5. I totally agree with Mr Tracy, counsel for the Plaintiff, that that quite unjustifiably introduces a doubt on the good title of the administratrix to the subject property, even though the so-called instrument of transfer has not been formally registered by the Land Registry. The mere fact that it appears in the land search record as a document pending registration is, in my judgment, sufficient to introduce a doubt on the title of the administratrix.
6. Proceedings were duly commenced by the Plaintiff in the District Court by way of originating summons asking for an order to vacate the registration of the so-called instrument of transfer from the Land Registry.
7. The matter came for hearing before Judge Lok again on 2 January 2002. On 4 January 2002, the learned judge made an order that these proceedings be transferred to the Court of First Instance for adjudication on the ground that the District Court did not have jurisdiction to handle the matter: [2002] 1 HKLRD 420. This set in motion the provisions in Order 78 of the Rules of the High Court (Cap. 4) governing the procedure relating to proceedings transferred or removed from the District Court to this Court. Amongst other things, rule 2 of that order requires the Registrar to give notice to...
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