Re Wong Tze Sau

HCMP 1445/2024

[2024] HKCFI 2244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1445 OF 2024

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JUDGMENT

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1.This is the hearing for the Applicant’s application under Section 45(e) of the Trustee Ordinance (Cap 29) (the “Ordinance”) made by way of ex-parte originating summons dated 8 August 2024[1] (the “Originating Summons”) for:

(a)  The removal of Wong To Kwan (黃道君) as trustee of Wang Chau Lot No. 347 and Lot No. 1432 in D.D. 123, Yuen Long, New Territories (collectively, the “Properties”); and

(b)  The vesting of the legal and beneficial interest in the Properties in himself absolutely.

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

(a)  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; and

(b)  The court may make an 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.

3.According to Section 57(1) of the Ordinance, an order concerning any interest in land subject to a trust may be made on the application of any person beneficially interested in the land.

4.The court may make a vesting order under Section 45(e) of the Ordinance in an ex parte application if there is clear evidence before the court justifying the making of such order: see Re Estate of Man Pak Chun (unrep., HCMP 2565/2014), 18 April 2016) at §10 [A#1]. However, the court must proceed cautiously, because it is being asked to make a "final" (as opposed to "interlocutory") order.

5.I have considered the evidence and counsel’s submissions. Counsel has properly bought to my attention further matters at the hearing including the apparent gap in the chain of title, the status of Wong To Kwan’s wife and the fact that Wong To Kwan’s death certificate has not been notarized. I am satisfied that:

(a)  Wong To Kwan’s legal title to the Properties has been proven;

(b)  The title of the Applicant to the Properties has been proven by the Assignment;

(c)  The trust for the benefit of the Applicant with Wong To Kwan acting as trustee has been proven by the Appointment of Trusteeship for Minors dated 13 June 1977;

(d)  Wong To Kwan’s death has been proven;

(e)  The Applicant by affirmation has stated that there have been no applications for grant of probate or letters of administration in respect of Wong To Kwan’s estate, nor has Wong To Kwan left any will;

(f)  A record search with the Probate Registry has also failed to reveal any grant of probate or letters of administration which has been issued in respect of Wong To Kwan’s name[2]; and

(g)  There is therefore no personal representative of Wong To Kwan, or at the very least it is uncertain who the personal representative of Wong To Kwan is.

6.By reason of the matters aforesaid, I make an order in terms of the §§1, 2 and 4 of the Originating Summons

Mr Melvin Ho, instructed by Kitty & So Tong, for the Applicant