IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO.109 OF 2002
The Personal Representative of the Estate of WATT MO KEI (屈武圻) (deceased) ———————–
The Personal Representative of the Estate of WATT MO KEI (屈武圻) (deceased)
Coram: Hon Ma J in Court
Date of Hearing: 15 March 2002
Date of Decision: 15 March 2002
Date of Handing Down of Reasons for Decision: 22 March 2002
REASONS FOR DECISION
1. The plaintiff is the registered owner of the property known as the Remaining Portion of Section A of Kowloon Inland Lot No.1157 (“theProperty”). The question before the court is what precisely that Property comprises.
2. The relevant part of Section A of Kowloon Inland Lot No.1157 in the present case comprises :
3. For convenience only, I will refer to the four areas I have just described as “the Old Remaining Portion”.
4. By an assignment dated 31 March 1954, one Mr Watt Mo Kei (“Mr Watt”) purchased the Property then known as the “Remaining Portionof Section A of Kowloon Inland Lot No.1157”. This Property consisted of the Old Remaining Portion. On the plan annexed to this assignment,the Old Remaining Portion is marked in pink and green : the pink equating to what is now Subsections 12 and 13 and the Assigned RemainingPortion and the green corresponding to the Subject Portion.
5. This assignment also placed on Mr Watt the obligation to pay the Crown rent of $62.55 in relation to the Old Remaining Portion.
6. Mr Watt built three four-storey buildings on the Old Remaining Portion. These buildings came to be known as No.2 Kwong Yung Street,No.4 Kwong Yung Street and No.22 Yin Chong Street. Each building contained four units, which, as will be seen, were sold betweenMarch and August 1955.
7. The construction of the buildings and the sale of the units resulted in the sub-division of the Old Remaining Portion. The Old RemainingPortion was sub-divided into two new subsections and a remaining portion. Each of these areas contained one of the three buildings.These areas became known as Subsection 12 of Section A of Kowloon Inland Lot No.1157, Subsection 13 of Section A of Kowloon InlandLot No.1157 and the Remaining Portion of Section A of Kowloon Inland Lot No.1157. This is the position today. Each purchaser of aunit in the buildings was assigned one equal undivided fourth part or share in the subsection or remaining portion relevant to hisunit.
8. By an assignment dated 16 March 1955, the second floor unit at No.2 Kwong Yung Street was sold by Mr Watt. What was assigned wasdescribed as “ALL THAT one equal undivided fourth part or share of the Vendor of and in ALL THAT portion of ALL THAT the said piece or parcel of ground situate at Ho Mun Tin aforesaid and registered at the Land Office as The Remaining Portion ofSection A of Kowloon Inland Lot No.1157 which said portion with its abuttals and dimensions is more particularly delineated and describedon the plan hereunto annexed and thereon coloured Pink, Blue and Yellow and is intended to be registered at the Land Office as SUBSECTION TWELVE OF SECTION A OF KOWLOON INLAND LOT NO.1157″. It was also stated in the assignment that the purchaser was to be responsible for and pay one-quarter of the annual sum of $9.20(i.e. $2.30) being the Crown rent referable to Subsection 12.
9. This was the first assignment of any unit at No.2 Kwong Yung Street (indeed of any unit in the three buildings) and also (as is clearfrom the Land Registry records) the first time that Subsection 12 was registered in the Registry.
10. Accordingly, when the assignment of the other three units at No.2 Kwong Yung Street took place, what was assigned was stated to be”ALL THAT one equal undivided fourth part or share of the Vendor of and in ALL THAT the said piece or parcel of ground situate at Ho Mun Tin aforesaid and registered at the Land Office as SUBSECTION TWELVE OF SECTION A OF KOWLOON INLAND LOT NO.1157 which said piece or parcel of ground with its abuttals and dimensions is more particularly delineated and described on the plan hereuntoannexed and thereon coloured Pink, Blue and Yellow”. These assignments similarly referred to the obligation on the purchaser to payone-fourth of the Crown rent. The assignments for the three units were dated 17 March 1955 (for the first and third floors) and 26April 1955 (for the ground floor).
11. What is also to be noted is that in none of the assignments was there a reservation by the assignor (Mr Watt) of any part of Subsection12 to himself (apart of course from any remaining unsold unit and one-quarter share referable to that unit).
12. The assignments of the units at No.4 Kwong Yung Street followed the same wording as in the case of the assignments of No.2 KwongYung Street. Thus :
13. I now deal with the sale of the units in the building situate at No.22 Yin Chong Street, the assignments of which form the subjectmatter of the present Originating Summons.
14. The one-quarter share assigned in respect of the four units in No.22 Yin Chong Street were described in the following way in theassignments, “ALL THAT one equal undivided fourth part or share of the Vendor of and in ALL THAT the said piece or parcel of ground situate at Ho Mun Tin aforesaid and registered at the Land Office as THE REMAINING PORTION OF SECTION A OF KOWLOON INLAND LOT NO.1157 which said piece or parcel of ground with its abuttals and dimensions is more particularly delineated and described on the plan hereuntoannexed and thereon coloured Pink, Blue and Yellow”.
15. It is important to note the following in relation to these assignments :
16. Eventually, all the twelve units in the three buildings became assigned to the plaintiff and that is the position today.
17. By the present Originating Summons, the plaintiff seeks a declaration in the following terms :
18. The area coloured Pink is the Subject Portion. The Memorials Nos.233677, 235213, 238140 and 238141 referred to the four assignmentsmade by Mr Watt in relation to the sale of the units at No.22 Yin Chong Street. I have referred these assignments in paragraphs 13to 16 above.
19. The problem in relation to these four assignments, as I have said, is that on the annexed plans, the Subject Portion was not includedso that all that appeared to be assigned were the one-quarter shares in the Assigned Remaining Portion.
20. Mr Benjamin Chain for the plaintiff submits that on a true construction of the four assignments, the assignor (Mr Watt) must haveintended and did assign the Subject Portion as part of the Remaining Portion of Section A of Kowloon Inland Lot No.1157. At the hearingbefore me on 15 March 2002, I agreed with this submission and therefore made the declarations sought in the Originating Summons.
21. Before going into the Reasons for this, I would just like to make some brief observations about the parties before me at the hearing.
The parties before the court
22. I have found that Mr Chain is correct and the plaintiff is therefore entitled to the declaration sought. If, however, he was notcorrect, then it would have followed that Mr Watt’s estate would be entitled to the Subject Portion. The estate is the defendantin the present proceedings, represented by Mr Bernard Man.
23. It was at first unclear to me what the defendant’s position was. In the affirmation of Lee King Yue (a director of the plaintiff),served in support of the Originating Summons, it was said that the estate did not consider the Subject Portion as being an assetof the estate and would therefore not contest the present proceedings.
24. If this meant that whatever the outcome, the defendant would not consider the Subject Portion as being an asset, a possible questionarises as to bona vacantia, in which case the Secretary for Justice might have had to be joined as a party to the proceedings.
25. However, Mr Man said that if I were to find against the plaintiff, the estate would then consider what would be the appropriate courseto take with regard to the Subject Portion. I was therefore in these circumstances satisfied that there was no necessity to jointhe Secretary for Justice as a party. I would, however, only say this : if there had been any real possibility that the Subject Portionwould have been disowned by the defendant in the event that the court was not in favour of the plaintiff, I would have been mindedto order the joinder of the Secretary for Justice.
The true construction of the four assignments
26. In my judgment, on a true construction of the four assignments, it is clear that the Subject Portion was intended to be includedas part of the Remaining Portion of Section A of Kowloon Inland Lot No.1157. I am of this view from the following reasons :
27. Taking into account the factors I have just set out, I have been guided by the following principles of construction relevant to thepresent case :
28. As I have said, I made the declarations sought at the conclusion of Mr Chain’s arguments. Mr Man, for his part, did not oppose themaking of these declarations. Further, as agreed, I also made an order for costs in the defendant’s favour to be paid by the plaintiff,such costs to be taxed if not agreed.
Mr Benjamin Chain, instructed by Messrs Lo & Lo, for the Plaintiff
Mr Bernard Man, instructed by Messrs Herbert Tsoi & Partners, for the Defendant