Land Law — Court of Final Appeal to determine the effect of section 3(2) of the Land Registration Ordinance and the “wait and see” exception under the Milmo principle

On 12 December 2025, the Appeal Committee of the Court of Final Appeal (“CFA”) granted leave to appeal on four questions of great general or public importance on land law in Hong Kong: [2025] HKCFA 23. This is one of the rare occasions where the Appeal Committee grants leave to appeal on a question raised by respondents to defend the result in the lower court. Anson Wong Yu Yat (led by Audrey Eu, SC) acted for the 1st and 2nd Respondents (who were the successful Plaintiffs in the Court of Appeal). 

The Appeal Committee affirms that in an appeal to the CFA, it is within its power to allow further questions to be raised by a respondent to defend the result in the lower court. When such a question is raised in the submissions at the leave hearing, in the absence of surprise or unfairness to the other parties, the Appeal Committee can include such a question in granting leave to secure the fair and effective disposal of the appeal. 

While granting leave to appeal on the three questions formulated by the Court of Appeal and refusing to grant leave on the four questions proposed by the Applicant, the Appeal Committee is satisfied that the question raised by the 1st and 2nd Respondents (which concerns the Milmo principle) is of great general or public importance since it potentially affects all leaseholders in Hong Kong holding interests under Government Leases. 

The four questions to be determined by the CFA are: 

1. Where A has assigned land to B by an instrument in writing which is registrable but unregistered, and A subsequently sells and assigns the same land to C who takes the assignment bona fide for valuable consideration and registers the assignment, is B’s instrument null and void as against C by virtue of section 3(2) the Land Registration Ordinance?  

2. Is the answer different if, instead of A subsequently selling and assigning the land directly to C, A first gifts and assigns the land to X and X then sells and assigns the land to C? Is B’s instrument null and void as against C?  

3. Is the answer different if the land sold and assigned to C is not the whole but only part of the land assigned to B? Is B’s instrument null and void as against C so far as the land assigned to C is concerned?  

4. In the context of a New Territories lease in 1983 which carried with it a realistic prospect of renewal or extension, whether a “wait and see” exception under the Milmo principle should be applied. 

The CFA will hear the appeal on 10 March 2026. 

 

Anson Wong Yu Yat

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Anson has appeared in more than 150 court judgments (including 18 cases in the Court of Final Appeal with 13 substantive appeals) over the mere span of 10 years’ call, reflecting the exceptional wealth of experience and exposure in civil litigation for his seniority. 

Anson has developed a broad civil practice with a growing practice in insolvency and bankruptcy matters in recent years. He is experienced in handling complex questions of law, including those of great general or public importance which reached the Court of Final Appeal. For example, he has recently appeared in (among others) three civil appeals before the Court of Final Appeal dealing with important questions concerning insolvency matters, land law and equity, service out of jurisdiction and statutory interpretation. 

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This article was first published on 19 December 2025.

Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.