Re Siu Chun Kit (蕭俊傑) As the Sole Administrator of the Estate of Siu Chun (蕭泉) Alias Siu Tsun (蕭泉), Deceased

HCMP 1323/2020

[2020] HKCFI 2676

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1323 OF 2020

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Before:  Mr Recorder Pow, SC in Chambers

Date of Hearing: 15 October 2020

Date of Decision: 23 October 2020

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DECISION

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1.This is the hearing of an ex parte Originating Summons dated 27 August 2020.  The Applicant Mr. Siu Chun Kit (蕭俊傑) applies for an order for the vesting of all the legal and other estate and interest of and in the subject lands in the Applicant, being the sole administrator of the estate of Siu Chun alias Siu Tsun (蕭泉), deceased (referred to as “蕭泉”).

2.The subject lands are all those pieces or parcels of ground registered in the Land Registry as Lot Nos 395, 440, 441, 443, 448, 469 and 470 all in Demarcation District No 367, Sai Kung, New Territories, Hong Kong (collectively “the 7 Lots”).

3.The 7 Lots are registered in the name of Siu Yau (蕭有), deceased (referred to as “蕭有”), as trustee for 蕭泉.

4.In 1941, Mr Siu Tam Kiu (蕭譚嬌) decided to purchase the 7 Lots for his son蕭泉.  However, 蕭泉 at that time was only about 10 years old.  Hence, 蕭有, who was the uncle of 蕭泉, was appointed as a trustee and purchaser to hold the 7 Lots on trust for 蕭泉, the Applicant’s late father.

5.In each of the land search records of the 7 Lots, there is a record under the “REMARKS” that “SALE IN FAVOUR OF SIU TSUN WITH SIU YAU AS TRUSTEE BY LAU FO KWAI VIDE M/N 111754 FOR PART OF $90” and “THE ABOVE MEMORIAL DATED & REGD ON 7 MARCH 1941 IN TAI PO D L O”

6.From the Conveyance on Sale (Form A) dated the 7 March 1941 and registered in the Tai Po District Land Office by Memorial No 111754, it can be confirmed that the 7 Lots were sold by one Lau Fo Kwai (劉火貴) to 蕭有as trustee for 蕭泉 : “Lau Fo Kwai … as Vendor hereby assigns unto Siu Tsun (T) Siu Yau of Pak Tam as Purchaser the Lot Nos 395, 440, 441, 443, 448, 469 & 470 in District No 367…”.  The word “(T)” clearly denotes 蕭有as trustee for 蕭泉.  This is consistent with the Chinese description of “司理” in the said Memorial.

7.蕭泉died at the Prince of Wales Hospital on 24 February 2008. Immediately before 蕭泉passed away, he was in possession of (i) a Hong Kong Identity Card; (ii) a Hong Kong Birth Certificate; and (iii) 4 British Passports, with the latest one issued in 1990.  The Applicant confirms that although there are discrepancies amongst these documents as to the date of birth of 蕭泉(i.e. 1 April 1930 or 20 April 1929), they all relate to the same person, that is his father 蕭泉.  This is not an uncommon feature in the old days.  This court can also see from the various photographs appearing therein that they all relate to the same person.

8.Letters of Administration under Grant No HCAG018802/2019 in respect of the estate of 蕭泉 were granted to the Applicant by this Court on the 10 June 2020.

9.In relation to the trustee 蕭有, he was the granduncle of the Applicant. 蕭有has a granddaughter Madam Siu Chun Fong (蕭振芳) (“Madam Siu”) who provides support for this application. Madam Siu was born on 27 May 1958.  Her father was Mr Siu (or Shiu) Hang 蕭亨 (“蕭亨”).  蕭亨was the son of 蕭有born in Hong Kong on 9 October 1919 as confirmed by his Birth Certificate.  This Birth Certificate was registered on 25 September 1956.  It further recorded that 蕭有was already deceased in 1956.

10.Probate search conducted at the Probate Registry, High Court of Hong Kong did not reveal any grant of probate or letters of administration in respect of the estate of 蕭有 having been issued by this Honourable Court. Madam Siu has no knowledge of whether her grandfather蕭有had any personal representative.  According to what she was told by her grandmother, 蕭有passed away in the Mainland in 1940s / 1950s with no estate at all.  In other words, 蕭有either has no personal representative, or it is unknown as to who his personal representative is, if any.

Applicable Legal Principles

11.Section 45 of the Trustee Ordinance, Cap 29 reads:-

“Vesting orders of land

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 in any such manner and for any such estate or interest as the court may direct …”

12.According to the authority of Re Pacific Good Investment Limited, HCMP 366/2014, unreported (Judgment dated 5 March 2014), per Deputy High Court Judge Wilson Chan (as he then was) at §14, it is permissible for the Court to make a vesting order under Section 45 of the Trustee Ordinance in an application made by way of ex parte Originating Summons.

Conclusion

13.I am satisfied from the evidence presented that the Applicant’s late father 蕭泉was entitled to the beneficial estate and interest in the 7 Lots which are held in the name of his trustee 蕭有.  I am satisfied that the present case falls within section 45(e) of the Trustee Ordinance in that 蕭有, who is deceased, either has no personal representative or it is uncertain as to who his personal representative is.  Since the Applicant is the lawful administrator of the estate of his late father 蕭泉, I am satisfied that it is proper to vest the land and interest in the 7 Lots to the Applicant as the lawful administrator of the estate of  蕭泉.  In the premises, I order in terms of the ex parte Originating Summons dated 27 August 2020.

Mr Chase Pun instructed by Wong, Fung & Co for the Applicant