Re Choi Yuk Tin and Another

HCMP 679/2023

[2023] HKCFI 1639

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 679 OF 2023

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J U D G M E N T

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THE APPLICATION

1.By an Ex Parte Originating Summons filed on 3 May 2023 (“the OS”), the applicants applied for the following vesting orders pursuant to section 45(e)  of the Trustee Ordinance (Cap 29, Laws of Hong Kong):

(1)  All estates, rights and interests in 1/4^th undivided part or share of and in the Land registered in the name of CHEUNG PO KIU (張甫嬌)  as trustee be vested absolutely and registered in the name of CHOI YUK TIN;

(2)  All estates, rights and interests in 1/4^th undivided part or share of and in the Land registered in the name of CHEUNG PO KIU (張甫嬌)  as trustee be vested absolutely and registered in the name of CHOI YUK LUN.

THE BACKGROUND

2.The following background may be found in the supporting affirmations of Choi Yuk Tin and Choi Yuk Lun respectively.

3.Choi Yau Hei (“Father”)  and Cheung Po Kiu (“Mother”)  had four sons:

(1)  Choi Moon Tong;

(2)  Choi Yuk Ning;

(3)  Choi Yuk Lun (one of the applicants herein);

(4)  Choi Yuk Tin (one of the applicants herein).

4.During his lifetime, Father would transfer his lands in the New Territories to his sons from time to time.  If, at the time of such transfers, any of his sons were still minors, Mother would hold the land(s)  on trust as trustee for them.

5.The Land was assigned by Father to his four sons as tenants-in-common in equal shares by way of an Assignment dated 12 December 1980 (“the Assignment”)  registered in the Land Registry by Memorial No. YL241616 (“the Memorial”).  At the time of such a transfer, the applicants were still minors, and therefore their respective shares (1/4 interest in the Land each)  of the Land were held by Mother as trustee for them.

6.Mother passed away on 9 April 2008 without vesting the relevant shares in the Land in the applicants.

7.No application for grant of probate or letters of administration in respect of Mother’s estate has ever been made.

8.Mother did not hold any substantial assets during her lifetime.  Any assets that she had as at the time of her death had been dealt with by the family according to Chinese law and customs shortly thereafter without any formal application made to the Probate Registry.  Taking into account the above as well as the fact that Mother had passed away for more than 15 years, it is unlikely that any application for probate or letters of administration would be made in respect of her estate.

THE LAW

9.Section 45(e)  of the Trustee Ordinance provides that:

“[…] 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, or releasing or disposing of the contingent right to such person as the court may direct […]

10.In Re Man Kin (萬堅)  as the administrator of the estate of Man Pak Chun (萬百春) (HCMP 2565/2014, unreported, 18 April 2014), Chow J (as Chow JA then was)  explained that:

“10. I accept that, as a matter of principle, the court may make a vesting order under section 45(e)  of the Trustee Ordinance in an ex parte application if there is clear evidence before the court justifying the making of such order: see for example the decision of Deputy High Court Judge Wilson Chan in Re Pacific Good Investment Limited, HCMP 366/2014 (5 March 2014)  and the cases referred to therein.

11. However, the court must proceed cautiously, because it is being asked to make a “final” (as opposed to “interlocutory”)  order which, in practical terms, could be worth many millions of dollars without hearing any opposing party. There is no “return date” of any inter partes hearing, and there would normally be no one who might raise any complaint that the applicant has failed to comply with the duty of full and frank disclosure in relation to the ex parte application.

12.  Thus, the court must examine the evidence presented by the applicant critically when being asked to make a vesting order under section 45(e)  of the Trustee Ordinance in an ex parte application.  Where there are gaps in the applicant’s evidence, the court should require the applicant to address them by satisfactory evidence, or provide proper explanations as the (sic)  why, despite the exercise of reasonable diligence, the applicant cannot adduce further evidence to deal with the evidential deficiencies.  Practitioners should not regard ex parte applications under section 45(e)  of the Trustee Ordinance as a short cut to obtain title to real properties, particularly in relation to lands in the New Territories, or assume that the court would rubber stamp such applications.”

DISCUSSION

11.Having perused:

(1)  The Memorial of the Assignment; and

(2)  The Appointment of Trustee for Minors dated 12 December 1980 (“the Appointment”)  executed by Mr Fung Kwok Keung, an Assistant Land Officer (N.T.), Mother and the applicants, pursuant to which the said Assistant Land Officer appointed Mother as trustee of the applicants herein in respect of their respective ¼^th  interests in the Land;

I am satisfied that Mother did hold two 1/4^th interests in the Land as trustee for the two applicants respectively.

12.The above conclusion has been reached despite the fact that the applicants could not produce any copy of the Assignment itself for the Court’s consideration.  The applicants explained that the Assignment had been lost and they have been informed by the Land Registrar that the image records thereof are not available at the Land Registry.  Be that as it may, I am of the view that the Assistant Land Officer concerned (Mr Fung), must have perused the Assignment before he executed the Appointment, and he would not have approved the trust arrangement unless he was satisfied that it was indeed the intention of Father to transfer the relevant interest in the Land to Mother as trustee for the applicants.

13.I am also satisfied that no personal representative of the estate of Mother has ever been appointed, and that there is clear evidence which justifies the making of an order under section 45(e)  of the Trustee Ordinance.

ORDER

14.By reasons of the aforesaid, I make an order in terms of the OS.

15.There be no order as to the costs of the action.

Mr Zenith Chan, instructed by Tony Kan & Co, for the applicants