Hsbc Trustee (Hong Kong) Ltd, The Sole Executor and Trustee of the Deceased’s Estate v. Lam Moon Wing and Others

HCMP 333/2022

[2023] HKCFI 199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 333 OF 2022

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D E C I S I O N

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1.This is the application by the plaintiff for a Benjamin Order to deal with the administration of the Estate of Ng Man Pui where a prospective beneficiary named Ho Kam Por (“HKP”) had been missing and cannot be found for years.

2.Apart from HKP, P has identified 12 surviving beneficiaries. Out of those 12, 8 have given prior indications that they would consent to a Benjamin Order being made, 3 prefer the giving of an indemnity, and 1 has not indicated any preference. Hence, with the necessary consent, only those non-consenting 4 have been named as defendants in the Originating Summons herein. The consenting 8 beneficiaries have nonetheless been given notice of commencement of these proceedings.

3.I have considered the various affirmations of service. I am satisfied that service has validly effected, within and outside jurisdiction, upon the defendants. D1 and D3 have filed acknowledgement of service indicating that they do not intend to defend the proceedings. D2 and D4 have filed none.

4.None of the defendants has shown up this morning. I deem it appropriate to proceed with the hearing in their absence.

5.I have read the affirmations placed before me, and in particular that of Susanna Fung of 12 April 2022. I have also considered the authorities cited before me, which include Re Benjamin [1902] 1 Ch 723, Williams, Mortimer & Sunnucks on Executors, Administrators and Probate (21^st ed.), §65-18, Re Green’s Will Trusts [1985] 3 All ER 455 and Re Instant Cast Loans Ltd [2021] 1 EWHW 1164 (Ch). I note that extensive efforts have been made in tracing HKP. He has not been. In fact he has not been heard from or of for years. Given those extensive but unsuccessful efforts, the relatively small size of the residuary Estate, the preference of most of the surviving beneficiaries, and the costs analysis provided, I am satisfied that this is an appropriate case for this Court to make the Benjamin Order sought, that P be authorized and at liberty to administer the residuary estate and the trusts contained in Clause 3(c) of the Deceased’s Will dated 4 November 1999 on the footing that Ho Kam Por did not survive the Deceased.

6.Costs of this application be paid out of the Estate.

Mr Johnny Ma SC instructed by Freda Lim & Co, for the Plaintiff

The 1^st to 4^th Defendants were not represented and did not appear