Re Sham Chi Sang

HCMP 2149/2018

[2019] HKCFI 278

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2149 OF 2018

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REASONS FOR JUDGMENT

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1.This is an application by ex parte originating summons for a vesting order under section 45 of the Trustee Ordinance Cap 29.

2.According to memorial no N166264 as shown in the relevant land search records, the properties known as All Those pieces or parcels of ground respectively registered in the Land Registry as Lot No 1972, Lot No 1973, Lot No 1974, Lot No 1975, Lot No 1976, Section A of Lot No 2205 and Remaining Portion of Lot No 2205 all in Demarcation District No 92, North, New Territories, Hong Kong (“Properties”) were purchased by Shum Yu Ching on 7 October 1970 for the sum of HK$115,200.00.

3.The applicant by his affirmation filed on 6 December 2018 claimed that he together with Shum Yu Ching, Sum Shu Yan and Sam Fuk Kui (collectively, “Beneficiaries”) contributed the monies for the aforesaid purchase of the Properties. Shum Yu Ching made a declaration of trust on the same day of the acquisition (ie 7 October 1970) to confirm such arrangement and to confirm that he held the Properties upon trust for the Beneficiaries as joint tenants (“Declaration of Trust”).

4.The Declaration of Trust was registered at the Land Registry by memorial no N166265, and provided as follows:

“…… AND WHEREAS the above mentioned purchase money [for the acquisition of the Properties] so paid by [Shum Yu Ching] as aforesaid was in fact the moneys belonging to and provided by SUM SHU YAN ……, SHAM CHI SANG ……, SAM FUK KUI …… all of the above mentioned address Gentlemen and [Shum Yu Ching] (hereinafter referred to as ‘the said Beneficiaries’) NOW THESE PRESENTS WITNESS that I, the said Shum Yu Ching for myself my executors and administrators DO hereby declare that I stand possessed of the said premises UPON TRUST for the said Beneficiaries as joint tenants AND [Shum Yu Ching] hereby agree to assign or convey the said premises at the request and costs of the said Beneficiaries their or his survivors or survivor and the executors and administrators of such last survivor to such person or persons at such time or times and in such manner as they or he shall direct or appoint.”

5.Shum Yu Ching and Sum Shu Yan had since passed away, so the applicant and Sam Fuk Kui became the sole remaining joint tenants of the Properties since 2001. By a Notice of Severance of Joint Tenancy dated 31 January 2012 which was registered in the Land Registry by memorial no 12020200240097, Sam Fuk Kui and the applicant became tenants-in-common of the Properties in equal shares.

6.The applicant and Sam Fuk Kui wished to deal with the Properties and planned to sell the same. But at all material times Shum Yu Ching held the legal title of the Properties as trustee for him as one of the Beneficiaries pursuant to the trust created under the Declaration of Trust, so the applicant was only a beneficial owner (and not a legal owner) of the Properties.

7.Shum Yu Ching was therefore a trustee within the meaning of the Trustee Ordinance Cap 29. But he had passed away years ago, so the applicant sought a vesting order to the effect that Shum Yu Ching be removed as trustee of the applicant in respect of the Properties, and that one-half share of the legal estate and interest of and in the Properties do vest in him absolutely on the basis that he was entitled to one-half share of the Properties by virtue of the Declaration of Trust.

8.Indeed, Sam Fuk Kui had already applied to court in HCMP2621/2012 for a similar vesting order. On 22 November 2012, DHCJ Sakhrani ordered that “[the Properties] DO VEST in [Sam Fuk Kui] absolutely for all the one-half legal and beneficial estate and interest in the Properties”.

9.I am satisfied in the circumstances that there is no one to be served with the originating summons, and that it would be in order for the application to proceed on ex parte basis. Thus, at the hearing on 29 January 2019, I made the following order sought in the originating summons:

(a) Shum Yu Ching be removed as trustee of the applicant in respect of the Properties;

(b) one-half share of the legal estate and interest of Shum Yu Ching of and in the Properties do vest in the applicant absolutely; and

(c) there be no order as costs.

Mr Wilson Wu, instructed by Hon & Co, for the applicant