Re Chan Kam Fai and Another

HCMP 144/2024

[2024] HKCFI 933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 144 OF 2024

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J U D G M E N T

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1.This is an application by ex parte originating summons by Chan Kam Fai and Chan Kam Ying (siblings) for a vesting order under section 45(e) and 57 of the Trustee Ordinance, Cap 29 (“the Ordinance”).

2.By an Assignment dated 15 December 1964, the Applicants’ mother, Madam Fung Lai Sheung (“Madam Fung”) became the registered owner of a property, being one equal undivided 186^th part or share of and in Section B of Subsection 1 of Section Y of Inland Lot No. 29 and the Remaining Portion of Section Y of Inland Lot No. 29 (“the Property”). On the same date of the Assignment, she executed a Declaration of Trust declaring that she held the Property on trust for the Applicants, who were then minors, as tenants-in-common in equal shares.

3.Madam Fung was naturalized in the USA on 20 January 2004. She passed away on 29 August 2022. She had no other assets in Hong Kong or overseas. No grant of probate or letters of administration has been made in Hong Kong or USA.

4.The Applicants are desirous of selling the Property, hence this application. As the Property had earlier on been rented out by Madam Fung, the Applicants are seeking a vesting order that should cover both the Property and the rent derived therefrom.

5.Under section 45(e) of the Ordinance, “where there is no personal representative of a deceased trustee who is 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 a vesting order vesting the land in such person in such manner as the court may direct.

6.Under section 57(1) of the Ordinance, an order under this Ordinance concerning any interest in land subject to a trust may be made on the application of any person beneficially interested in the land.

7.The court may make a vesting order if there is clear evidence justifying making one. 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 millions of dollars without hearing any opposing party, or without anyone challenging the applicant for failing to make full and frank disclosure. The court must examine the evidence presented by the applicant critically: Re Man Kin as the administrator of the estate of Man Pak Chun, HCMP 2565/2014, 18 April 2016, Chow J (as he then was).

8.The application is to be made by ex parte originating summons: Re Pacific Good Investment Limited, HCMP 366/2014, 5 March 2014, §14.

9.In the present case, the Mother’s legal title is proved by the Assignment. The trust is proved by the Declaration of Trust. Both documents have been registered in the Land Registry.

10.Madam Fung’s death is proved by her death certificate.

11.Her husband’s death is proved by his death certificate.

12.The Applicants’ relationship with Madam Fung is proved by their birth certificates.

13.As confirmed by the Applicants on affirmation, Madam Fung has no other children. She has left no will.

14.Probate search shows that Madam Fung’s estate has not taken out a grant in Hong Kong. She has no personal representative in Hong Kong or USA.

15.The conditions for making a vesting order are satisfied. I therefore grant one to vest the Property and the rent derived therefrom in the Applicants, who are beneficially entitled as tenants-in-common in equal shares.

Mr Wilfred Tsui, instructed by Stephen Lo & P.Y. Tse, for the applicants