Re Man Kin As the Administrator of the Estate of Man Pak Chun, Deceased

HCMP 2565/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2565 OF 2014

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D E C I S I O N

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INTRODUCTION

1.In this action, commenced by the applicant by way of an ex parte originating summons dated 16 October 2014, the applicant seeks a vesting order in respect of the properties known as All That 1/3^rd undivided part or share of and in All Those pieces or parcels of grounds registered in the Land Registry as Lots Nos 177, 193, 194, 209, 602, 212 and 301, and Section A of Lot No 166, all in Demarcation District No 80, North, New Territories, Hong Kong (“the Properties”) as the administrator of the estate of Man Pak Chun (萬百春), deceased absolutely for all the entire legal and beneficial estate and interest in the Properties.

BACKGROUND FACTS

2.The Properties are currently registered in the Land Registry in the name of “Man Li Shi” (as trustee) for “Man Pak Chun” (as beneficiary).

3.According to the applicant:-

(1)  Man Li Shi, also known as Lee Chuen Kiu (李傳嬌), was his lawful and natural grandmother who died intestate in Hong Kong on 16 July 1975 at the age of 87.

(2)  Man Pak Chun (萬百春) was his lawful and natural father who died in England on 14 January 2010 at the age of 83.

(3)  Man Li Shi, also known as Lee Chuen Kiu (李傳嬌), was the lawful and natural mother of Man Pak Chun (萬百春), being her only child.

(4)  The Properties became vested in “Man Li Shi” (as trustee) for “Man Pak Chun” (as beneficiary) pursuant to a “Succession to Property” dated 7 October 1941.

(5)  A memorial (“the Memorial”) of the Succession to Property, numbered 113323, has been registered in the Land Registry against the Properties since 7 October 1941.

(6)  The person named “Man Li Shi” in the Memorial was his late grandmother, ie Man Li Shi, also known as Lee Chuen Kiu (李傳嬌).

(7)  The person named “Man Pak Chun” in the Memorial was his late father, ie Man Pak Chun (萬百春).

(8)  No grant of letters of administration has ever been issued or is pending approval is respect of the estate of Man Li Shi, also known as Lee Chuen Kiu (李傳嬌).

(9)  The applicant is the administrator of the estate of Man Pak Chun (萬百春), pursuant to a grant of Letters of Administration under Grant No HCAG016634/2014 issued by the High Court of the HKSAR on 3 April 2014.

4.The applicant has produced as evidence copies of two death certificates.  The first one relates to a person named “Lee Chuen Kiu (李傳嬌)”, and it appears on the face of that death certificate that she passed away at “UNNO. HOUSE, HEUNG YUEN VILL.” on 16 July 1975.  The second one relates to a person named “Pak Chun MAN”, and it appears on the face that death certificate that he passed away at “Braeside Nursing Home Royal Street, Rochdale” on 14 January 2010.

5.The applicant’s case is that, as the administrator of the estate of the Man Pak Chun (萬百春) who was entitled as the sole beneficiary of the Properties held in the name of Man Li Shi, also known as Lee Chuen Kiu (李傳嬌), as trustee, a vesting order of the Properties in his favour should be made under section 45(e) of the Trustee Ordinance, Cap 29, in view of the fact that there is no personal representative of the deceased trustee.

DISCUSSION

6.Section 45(e) of the Trustee Ordinance states as follows:-

“In any of the following cases, namely –

(e) where there is no personal representative of a deceased trustee who was entitled to or possessed of any interest in land, or where it is uncertain who is the personal representative of a deceased trustee who was entitled to or possessed of any interest in land;

the court may make an order (in this Ordinance called a vesting order) vesting the land or interest therein in any such person as the court may direct …”.

7.I am prepared to accept the applicant’s evidence that:-

(1)  his father was known as “Man Pak Chun” (in English) and “萬百春” (in Chinese) who passed away in England on 14 January 2010;

(2)  his grandmother was known as “Lee Chuen Kiu” (in English) and “李傳嬌” (in Chinese) who passed away in Hong Kong on 16 July 1975; and

(3)  there is no personal representative of the applicant’s grandmother.

8.However, an examination of the documents before the court also reveals the following:-

(1)  The “trustee” referred to in the Memorial is a person called “Man Li Shi” (in English only).  There is no reference to any other name, whether in English or Chinese, of the trustee appearing in that document.  In particular, there is nothing in the Memorial to indicate that the trustee was also known as Lee Chuen Kiu (李傳嬌).

(2)  The “beneficiary” referred to in the Memorial is a person called “Man Pak Chun” (in English only).  There is no reference to any other Chinese name of the beneficiary appearing in that document.  In particular, there is nothing in the Memorial to indicate that the Chinese name of the beneficiary was “萬百春”.

(3)  The death certificate of the person named Lee Chuen Kiu (李傳嬌), whose death was registered on 17 July 1975, does not refer to any other name of the deceased person.  In particular, it does not mention that Lee Chuen Kiu (李傳嬌) was also known as “Man Li Shi”.

9.At the hearing on 6 April 2016, Mr Kent T C Lee, who appeared on behalf of the applicant, accepted that apart from the bare assertions of the applicant in his two affirmations filed on 16 October 2014 and 30 January 2016 respectively, there is no evidence to show that:-

(1)  the person named “Man Li Shi” in the Memorial dated 7 October 1941 was also known as “Lee Chuen Kiu (李傳嬌)”;

(2)  the person named “Lee Chuen Kiu” who passed away in Hong Kong on 16 July 1975 was one and the same person as the person named “Man Li Shi” in the Memorial; and

(3)  the person named “Man Pak Chun” who passed away in England on 14 January 2010 was one and the same person as the person named  “Man Pak Chun” in the Memorial.

10.I accept that, as a matter of principle, the court may make a vesting order under section 45(e) of the Trustee Ordinance in an ex parte application if there is clear evidence before the court justifying the making of such order: see for example the decision of Deputy High Court Judge Wilson Chan in Re Pacific Good Investment Limited, HCMP 366/2014 (5 March 2014) and the cases referred to therein.

11.However, the court must proceed cautiously, because it is being asked to make a “final” (as opposed to “interlocutory”) order which, in practical terms, could be worth many millions of dollars without hearing any opposing party.  There is no “return date” of any inter partes hearing, and there would normally be no one who might raise any complaint that the applicant has failed to comply with the duty of full and frank disclosure in relation to the ex parte application.

12.Thus, the court must examine the evidence presented by the applicant critically when being asked to make a vesting order under section 45(e) of the Trustee Ordinance in an ex parte application.  Where there are gaps in the applicant’s evidence, the court should require the applicant to address them by satisfactory evidence, or provide proper explanations as the why, despite the exercise of reasonable diligence, the applicant cannot adduce further evidence to deal with the evidential deficiencies.  Practitioners should not regard ex parte applications under section 45(e) of the Trustee Ordinance as a short cut to obtain title to real properties, particularly in relation to lands in the New Territories, or assume that the court would rubber stamp such applications.

13.At the hearing of the present application on 6 April 2016, the court specifically raised with Mr Lee whether the applicant could produce further evidence on the matters referred to in paragraph 9 above.  Various possible sources of evidence were canvassed, for example, the genealogy book of the Man family, inscriptions on the gravestone of “Man Li Shi” or “Lee Chuen Kiu (李傳嬌)”, old family letters or writings, testimony of village elders, etc.  It is also of note that the Properties relate only to a one third interest in various lots of land in the New Territories.  The other co-owners may be able to provide further evidence on the said matters.  Mr Lee, however, informed the court that the applicant was not in a position to adduce further evidence on those matters and would rest his case on the existing evidence.

14.Having carefully considered the totality of the evidence before the court, I am not prepared to make the order sought on the strength of the bare assertions of the applicants in his two affirmations.  Accordingly, I dismiss the applicant’s ex parte originating summons dated 16 October 2014, without prejudice to the applicant making any future application as may be supported by further or additional evidence.

Mr Ken T C Lee, instructed by Kelvin Cheung & Co, for the applicant