Re Li Chun Ling and Liu Hop Chuen, The Executors of the Estate of Liu Chi Keung also known as Liu Chee Keung also known as Liu Tsz Keung

HCMP 1404/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1404 OF 2016

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D E C I S I O N

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INTRODUCTION

1.In this action, commenced by the applicants by way of an ex parte originating summons dated 2 June 2016, the applicants seek a vesting order in respect of the legal estate and interest of and in the property known as All That piece or parcel of land registered in the Land Registry as Lot No 1513 in Demarcation District No 52, North, New Territories (“the Property”) in their capacity as executors of the estate of Liu Chi Keung (廖志強) also known as Liu Chee Keung (廖志強) also known as Liu Tsz Keung (廖自強), deceased (“the Deceased”).

BACKGROUND FACTS

2.The Property is currently registered in the Land Registry in the name of Liu Tsz Keung as “beneficiary” with Liu Hok Chun as “trustee”.

3.According to a birth certificate issued by the Births and Deaths Registry, Hong Kong, on 11 March 1982:-

(1) Liu Chi Keung (廖志強) was born on 1 February 1946;

(2) his place of his birth was “63B, Sheung Shui Village”;

(3) the name of his father was Liu Muk Yau (廖木有), and the name of his mother was Tang Lai Chung (鄧禮聰); and

(4) the birth was registered on 12 May 1959. 

4.By a “Memorandum of Agreement by the Purchaser” dated 27 January 1950 signed by the District Commissioner, New Territories, “Liu Tsz Keung (age 3), Hok Chun (Tr) (廖自強 (三歲)，何傳司理)” was declared the highest bidder for the Property and agreed to become the lessee thereof.  The amount of the premium at which the Property was purchased was stated to be $230.  It was also written on the Memorandum that part payment in the sum of $120 was received on 27 January 1950 (R No 178858), and the balance of $110 was received on 28 January 1950 (R No 178870).

5.A Miscellaneous Receipt No 178858 issued by the Hong Kong Government dated 27 January 1950 stated that the sum of $120 was received from “Ho Chun”.  Another Miscellaneous Receipt No 178870 issued by the Hong Kong Government dated 28 January 1950 stated that the sum of $110 was received from “Liu Hok Chun”.

6.According to a death certificate issued by the Births and Deaths Registry, Hong Kong, on 7 February 1990:-

(1) Ho Chuen (何全) passed away on 7 February 1990 at the age of 87; and

(2) the informant of the death was “Liu Chi Keung”, stated to be her “grandson in attendance, 5^th Lane, 12 Tai Yuen Village, Sheung Shui, N.T.”

7.According to a “Certificate of Registered Particulars” dated 31 May 2010 issued by the Immigration Department:-

(1) an Identity Card No 771726A was issued to a person in the name of Liu Chee Keung (廖志強) in November 1958;

(2) on 27 June 1964, he re-registered for Identity Card No A661213;

(3) on 30 October 2009, his name was amended to Liu Chi Keung (廖志強);

(4) the date of his birth was “1 February 1946 (verified)”;

(5) he was currently the holder of Hong Kong Identity Card No  A661213(2) issued on 14 August 1985; and

(6) on 10 May 2010, he informed the Immigration Department that his residential address was “ 新界上水大元村5 巷12 號1/F” (1/F, No 12, 5^th Lane, Tai Yuen Tsuen, Sheung Shui, New Territories).

8.On 15 October 2015, probate of the last will and testament of Liu Che Keung (廖志強) also known as Liu Chee Keung (廖志強) also known as Liu Tsz Keung (廖自強), who died on 22 December 2014,  was granted by the Court of First Instance to the applicants under Grant No HCAG004212/2015.  In the copy of the will attached to the grant, it was mentioned (inter alia) that:-

(1) Liu Chee Keung (廖志強) was also known as Liu Tsz Keung (廖自強);

(2) he was the holder of Hong Kong Identity Card No A661213(2); and

(3) his address was “No 12, 5^th Lane, Tai Yuen Tsuen, Sheung Shui Village, Sheung Shui, New Territories, Hong Kong”.

9.The will also made express reference to the property registered in the Land Registry as Lot No 1513 in Demarcation District No 52, which the testator gave and devised to his son, Liu Kwok Kit (廖國傑), for his own use and benefit absolutely.

10.According to the applicants:-

(1) Liu Che Keung (廖志強), Liu Chee Keung (廖志強) and Liu Tsz Keung (廖自強) referred to one and the same person, ie the Deceased;

(2) the Deceased was the beneficiary named in the Memorandum of Agreement by the Purchaser, and the registered beneficial owner of the Property;

(3) Ho Chuen (何全) and Liu Hok Chun (廖何傳) referred to one and the same person (hereinafter referred to as “Madam Ho”), and she was the grandmother of the Deceased;

(4) Madam Ho died intestate on 7 February 1990 without having ever vested the Property in the Deceased during her lifetime;

(5) no executor or administrator has ever been appointed in respect of the estate of Madam Ho, and there is no record of any application filed for a grant of probate or letters of administration of her estate; and

(6) there is accordingly no person on whom the originating summons herein could be served.

DISCUSSION

11.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 …”.

12.On the evidence before me, I am prepared to accept and find as a fact that:-

(1) Liu Che Keung (廖志強), Liu Chee Keung (廖志強) and Liu Tsz Keung (廖自強) referred to one and the same person, ie the Deceased;

(2) Ho Chuen (何全) and Liu Hok Chun (廖何傳) referred to one and the same person, ie Madam Ho;

(3) the Deceased was the grandson of Madam Ho;

(4) the Deceased was the registered beneficial owner of the Property, and Madam Ho was the registered legal owner of the Property holding it on trust for the Deceased;

(5) Madam Ho passed away without having vested the Property in the Deceased during her lifetime; and

(6) there is no personal representative of Madam Ho.

13.By reason of the foregoing matters, I make an order under section 45(e) of the Trustee Ordinance vesting the Property in the applicants as executors of the estate of the Deceased.

14.Madam Ho having passed away, there is no question of the court making any order to remove her as trustee of the Deceased in respect of the Property.  Accordingly, I decline to make the order sought in paragraph 1 of the originating summons.

15.Lastly, I make no order as to costs.

Mr Y Chan, of David Y Y Fung & Co, for the applicants