Re Chan Sam Man Sani

HCMP 906/2018

[2018] HKCFI 1971

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 906 OF 2018

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D E C I S I O N

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1.The applicant is the youngest of the three brothers of the family. Their parents passed away in 1987 and 1999 respectively. The applicant is the administrator of the estate of his late eldest brother, who passed away in 2014. He and his elder brother, ie, the middle brother of the three, are the only persons entitled to the estate of the eldest brother.

2.The applicant took out this ex parte application effectively for the court’s sanction that he could administer his eldest brother’s estate on the basis that the middle brother has also died.  The middle brother has gone missing and not seen ever since 23 August 1970.

3.I adjourned the first hearing, and directed that the result of an up to date death registry search in respect of the middle brother should be obtained and adduced prior to this hearing.  This the applicant did by way of further affirmation.

4.The evidence, including the relevant contemporaneous documents, shows the follows:

(1)   The middle brother went diving with the applicant and numerous friends of a diving club on 23 August 1970 in Tap Mun, the New Territories.  He was not seen returning when the activity concluded at the end of that day.

(2)   All went out to search for the middle brother.  Police report was made. Notices were posted in Tap Mun and the vicinity.  Newspaper advertisements were posted.  Monetary reward was offered by the parents for news about the middle brother.

(3)   The middle brother’s personal belongings were all left at home.

(4)   Regular updating of the savings account bank passbook belonging to the middle brother ever since until 1997 have shown no transaction except for the bank’s own transactions.

(5)   The death registry search mentioned above showed no relevant record in respect of the middle brother.

5.In the circumstances, I am satisfied that an order could be made on the basis that the middle brother is presumed dead.  I therefore grant an order in terms of the originating summons with no order as to costs.

Mr Yiu Kwai Hung, of K H Yiu & Associate, for the applicant