Tsuen Wan Tung Po Tor Monastery Ltd v. Feng Dayao and Wu Sujie, The Executors of the Estate of Sik Liu Chi and Others
Read the full judgment text of HCMP 91/2022 on BabelCite. This High Court CFI judgment was delivered on 9 July 2026.
2. The P’s Summons is simply for an affirmation updating the court about the probate search results of Sik Liu Yee and Sik Liu Wah. No new issues are raised. The P’s Summons should be allowed with costs in the Originating Summons.
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HCMP 91/2022 [2026] HKCFI 3925 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 91 OF 2022 ________________
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________________ JUDGMENT ________________ I. INTRODUCTION 1.Before me are:-
2.The P’s Summons is simply for an affirmation updating the court about the probate search results of Sik Liu Yee and Sik Liu Wah. No new issues are raised. The P’s Summons should be allowed with costs in the Originating Summons. 3.For the D1’s Summons, I shall read the Affirmation of the 1st Defendant already filed on 10 April 2026 on a de bene esse basis. II. THE SUBJECT LOT AND THE MONASTERY 4.The Subject Lot was granted in exchange for the various land lots registered under the name of Sik Yan Shan (also known as Master Mau) (“Master Mau”). The Subject Lot was granted under New Grant No. 4108 dated 10 September 1963 (the “New Grant”) to the following six individuals (the “Original Grantees”):-
5.The New Grant contains the following Special Conditions:-
6.By the time of the New Grant, a monastery known as “TSUEN WAN TUNG PO TOR MONASTERY” (the “Monastery”) had already been erected on the Subject Lot and the Monastery, an unincorporated association, had already been registered under the Chinese Temples Ordinance (Cap. 153) in the early 1950s. Despite the registration, it was not an incorporated legal entity and could not hold property in the name of the Monastery. According to the unchallenged evidence, the premium and the Government rent were paid from the funds of the Monastery which received public donations. 7.Against the above, Ms Julia Au, leading Ms Kamen Cheong, counsel for the Plaintiff, submits that by signing the New Grant, the Original Grantees manifested express intention to hold the Subject Lot on trust for the religious purpose with the Monastery as the beneficiary. Mr Chris Chan, counsel for the 1st Defendant, disagrees, submitting that the New Grant manifested no intention of holding the Subject Lot for trust, but was simply imposing restrictions on the user of the Subject Lot. No doubt, the New Grant did impose restrictions on the user of the Subject Lot. However, with respect to Mr Chan, it does not mean that the New Grant could not at the same time constitute manifested intention to hold the Subject Lot on trust for the Monastery. 8.It is well established that to create a trust, there must be certainty of the subject matter, certainty of intention and certainty of the object: see Snell’s Equity (35th edition) §22-012. “[T]echnical or formal words are not required. Trust may be created by means of an informal declaration, or may be inferred from the acts of the settlor or the circumstances of the case”: see Wing Lung Bank Limited v King Arnold Theo as Executor of the Estate of Shih Wen Hsia Bessie also known as Bessie Shih, Bessie King and Bessie Shih King, deceased and Another [2020] HKCFI 911 at §54 per DHCJ Anson Wong SC. 9.Further, by section 5(1)(b) of the Conveyancing and Property Ordinance (Cap. 219), “a declaration of trust respecting land or any interest therein shall be manifested and proved in writing signed by the person who is able to declare such trust or by his will”. 10.In the present case, the subject matter in the New Grant is certain, being the Subject Lot. For certainty of intention, the Original Grantees, by agreeing to the New Grant restricting the user of the Subject Lot to the Monastery, manifested a clear intention that they would hold the Subject Lot for the purpose of the Monastery only. Further, the fact that it was only Master Mau who contributed his lands for exchange for the Subject Lot with funds from the Monastery rather than the other Original Grantees reinforces that the Original Grantees (including Master Mau himself) were not intended to be the beneficial owners. Mr Chan submits that for the 1/6 share held in Master Mau’s name, Master Mau intended himself to be the true owner. With respect, I disagree. Though he contributed the lands for the exchange, he expressly agreed to the exchange for the purposes of the Monastery, and to do so together with the other Original Grantees. It is inherently improbably that Master Mau would like to single out himself for a different footing under the same New Grant. 11.Mr Chan further submits that almost every Government lease would impose certain restrictions on the user of the land, but it would be absurd that every Government lease would somehow create a trust. Mr Chan gives an example of a Government lease granting land for residential purposes. With respect, Mr Chan misses the point that in his example, the landowner, say, a developer would itself be the owner of the land and even assuming that such a purpose could be an object for the trust, the beneficial owner would still be the developer itself (or upon sale, the first owners). In the present case, the user of the Subject Lot is directed to the Monastery, which had already been a registered, though unincorporated entity, and the Monastery consisted of members not necessarily the Original Grantees only. 12.More importantly, not every object is an object for which a trust could be set up with an unincorporated body as the beneficiary. The Court is more ready to find an unincorporated body as the beneficiary when it is a public charity: see Snell’s Equity, supra, §23-014. To qualify as a public charity, three conditions must be satisfied, namely, (1) the purposes of the institution must have charitable character; (2) the institution must exist for the benefit of the public; and (3) it must be exclusively charitable: see Cheung Man Yu v Lau Yuen Ching and Others [2007] 4 HKC 314 at §24 per Tang VP, Cheung JA and A Cheung J. 13.In the present case, by the New Grant, the Original Grantees could apply the Subject Lot only for the Monastery and “for the purposes of [the Monastery]”: see Special Conditions 4 and 5 of the New Grant. In other words, the restriction is not only in relation to what building could be erected, but also in relation to the purposes. Advancement of religion and building and maintaining a place for public worship (which I readily find to be the purposes of the Monastery) can be a charity (see Cheung Man Yu v Lau Yuen Ching and Others, supra at §35), and the public element can be satisfied so long as the public would attend the place for worship (see Cheung Man Yu v Lau Yuen Ching and Others, supra at §§72 and 73), for such worship attended by the public also being a purpose of the Monastery. There is no evidence suggesting that the Monastery is not exclusively for such charitable purposes. In the circumstances, I am satisfied that the object is sufficiently certain, namely, the Monastery was a public charity for which the Subject Lot was held on trust. 14.For the above reasons, I am satisfied that by signing the New Grant, the Original Grantees held the Subject Lot on trust for the Monastery. 15.It remains for me to point out that subsequently, letters dated 1 July 1977 and 6 June 1981 were signed by the Original Grantees or their successors. The authenticity of all these letters (the “Letters”) is not challenged. The Letters state quite clearly that the Subject Lot was the property of the Monastery (“全是東普陀講寺物業”) and/or not their own property (“不屬我等私人所有”). Ms Au describes the Letters as declarations of trust. In my view, the Letters are less declarations than evidence consistent with there having already been a trust. 16.Further, specifically for Sik Lui Koon (who succeeded to Master Mau’s interest), he executed a Declaration of Trust dated 29 December 1978 declaring that since 14 September 1978, he had held and would continue to hold the 1/6 share in the Subject to on trust for the members of the Monastery. This may at a first glance be inconsistent with there having been a trust since the New Grant. However, the circumstances where this Declaration of Trust are unknown. Similarly, for the Deed of Gift dated 30 May 1986 executed by Sik Lui Koon in favour of the Plaintiff, and the board minutes of the Plaintiff or the Monastery apparently recording that estate duty would have to be paid for the 1/6 share in the Subject Lot upon the demise of some of the Original Grantees or their successors, the circumstances are unknown. Bearing in mind that the documents should be construed objectively, in the overall assessment, I take the view that the documents mentioned above are sufficiently clear that by the New Grant, the Original Grantees held the Subject Lot on trust for the Monastery or the members of the Monastery. III. THE DEFENDANTS 17.The 1st Defendant are the joint executors of the estate of Sik Liu Chi, holding two 1/6 shares in the Subject Lot. Sik Liu Chi was the successor-in-title to:-
18.The 2nd Defendant and the 3rd Defendant, as mentioned above, are two of the Original Grantees. They passed away before the commencement of the present proceedings. It appears to the Plaintiff that they had issues, and so a carry-on order was obtained on 5 December 2024 pursuant to Order 15 rule 15 against them. 19.The remaining two Original Grantees, namely, Sik Liu Yee and Sik Liu Wah, are not named as parties to the present proceedings because it appears to the Plaintiff that they have no issue at all. In principle the present proceedings in relation to their respective 1/6 share in the Subject Lot is ex parte. IV. THE PLAINTIFF 20.The Plaintiff is a company limited by guarantee incorporated on 21 November 1980. The objects for which the Plaintiff is established include, as set out in its Memorandum of Association:-
21.One would have thought that with this object, it is clear that the trustees, be they the Original Grantees or their successors who could only be trustees: see Hau, Linda & Hau, Pauline v Hau Fuk Wah and Another, HCA 2235/2008, 25 November 2009 at §9 per Chu J, would be taken to understand that by the incorporation, the beneficiaries, namely, be it the Monastery or the members of the Monastery, would transfer the rights and interests (including the rights and beneficiary interests in the Subject Lot) to the Plaintiff. This is how Le Pichon J (as she then was) treated a similar situation in Chap Yick Clansman’s Association Ltd v Mok Fai [1997] HKLRD 580 at 586B-587C. However, Mr Chan submits that the incorporation of the Plaintiff should make no difference, and that any trust would still remain a trust for the members of the Monastery, including the Original Grantees or their successors as they were also the members of the Monastery. With respect, I am unable to accept such submissions. It is clear that an object of the incorporation of the Plaintiff, as expressly stated, was to take up all the assets and liabilities of the Monastery, and by subscribing to the Memorandum of Association, the Original Grantees and their successors, first, agreed to transfer their beneficial interests as members to the Plaintiff, and second, agreed upon the instruction of the members of the Monastery now embodied in the Plaintiff to hold the beneficial interests for the Plaintiff. I cannot see any other way to understand the matter. 22.Therefore, I am of the view that upon its incorporation, the beneficial interests in the Subject Lot were transferred to the Plaintiff, such that the trust has since been held for the Plaintiff. V. THE DEFENDANTS’ POSITIONS 23.The 2nd and 3rd Defendants have not filed and served any opposition evidence in these proceedings and are absent from the hearing. It is only the 1st Defendant who oppose the Plaintiff’s application. 24.The main defences raised by the 1st Defendant appear from D1’s April Affirmation. In summary:-
25.Assuming the factual matters in (1) to be true, and even assuming that Sik Liu Chi did habour the intention to gift the 1/6 share to the 1st Defendant, Sik Liu Chi, being a trustee holding the 1/6 share for the members of the Monastery or the Monastery itself, could not decide how to deal with the 1/6 share by himself, as the Latin phrase nemo dat quod non habet (one cannot give what he does not have) describes. 26.With respect, (2) is stated to be rejected. The only other system of law that may apply in Hong Kong is the Chinese customary law applicable to the lands in the New Territories (and strictly speaking, the Chinese customary law so applicable is part of Hong Kong law). Otherwise, the Hong Kong law, consisting of common law and equity, applies. Further, the 1st Defendant’s position that the Subject Lot should be held for all living things supports my finding above that there is a public element in the trust. Applying the Hong Kong law property and assessing the matters in the round, I have come to the conclusion stated above, and I cannot see how (2) can advance the 1st Defendant’s defence at all. 27.It remains for me to point out that during the hearing, Mr Chan submitted for the first time that there was a trust in respect of Master Mau’s 1/6 share and it was a trust for the members of the Monastery (not the Plaintiff), and there has never been any trust in respect of Sik Liu Ying’s 1/6 share. With respect, in the historical circumstances explained above, I fail to see why Sik Liu Ying’s 1/6 share would be treated differently. I reject Mr Chan’s such submissions. VI. VESTING ORDER 28.For each of the 1/6 shares held respectively in the name of the 2nd and 3rd Defendants as well as Sik Liu Yee and Sik Liu Wah, I am satisfied that section 45(e) of the TO is applicable. The unchallenged evidence is that they have all passed away, and no personal representative can be located. I raised a question with Ms Au whether for Sik Liu Yee and Sik Liu Wah, they should be joined formally as defendants and then service or carry-on order should be applied for them like for the 2nd and 3rd Defendants. Ms Au points out that for the 2nd and 3rd Defendants, there had been times when the personal representatives were apparently locatable and so they were joined as parties, and subsequent development has led to the uncertainty of their personal representatives. Ms Au refers me to Re Man Kin, HCMP 2565/2014, 18 April 2016 as an example where an application under section 45(e) was made ex parte. I agree with her. 29.In the circumstances, I am satisfied that I should grant a vesting order under section 45(e) in respect of each of the 1/6 shares held respectively in the name of the 2nd and 3rd Defendants as well as Sik Liu Yee and Sik Liu Wah. 30.For the 1st Defendant, given their stance that there is no trust for the Plaintiff, I am satisfied that it is expedient to grant a vesting order under section 45(g) of the TO in respect of the two 1/6 shares held by them. VII. THE 1ST DEFENDANT’S REQUEST FOR CROSS-EXAMINATION ON THE PLAINTIFF’S EVIDENCE 31.As an alternative, Mr Chan submits that the Plaintiff’s evidence that there was such trust should be cross-examined. However, in the analysis above, I have not relied upon the Plaintiff’s mere allegations. Instead, I have considered the documents only, the authenticity of which is not challenged. 32.Further, in §§24-25 above, I considered the 1st Defendant’s case and evidence most favourably for the 1st Defendant, and still came to the conclusion that the Subject Lot is held on trust for the Plaintiff. 33.In my view, there are no arguable issues that warrant cross-examination. VIII. D1’S SUMMONS 34.Since D1’s April Affirmation (considered in §§24-25 above) has not advanced the 1st Defendant’s opposition at all, one may say that there would be no prejudice to the Plaintiff. But equally, there would be no prejudice against the 1st Defendant if D1’s April Affirmation is not admitted. 35.There is, however, no explanation for the delay for D1’s April Affirmation. Given the lack of explanation for the delay and no prejudice would be suffered by both parties, I am not satisfied that I should grant leave for D1’s April Affirmation, and shall therefore dismiss D1’s Summons with costs to the Plaintiff, to be summarily assessed on paper. IX. CONCLUSION 36.Based on the above, I make the following order:-
37.Lastly, I thank counsel for their assistance.
Ms Julia Au, leading Ms Kamen Cheong, instructed by Gilbert Tang & Co., for the Plaintiff Mr Chris Chan, instructed by Solar Wong & Co., for the 1st Defendant | ||||||||||||||||||||||||||||||||||||
Cases cited in this judgment