Ng Man Pui v. Best Luck Investment Co. Ltd. and Another

HCMP004320/1997

1997, No.MP4319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

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AND

1997, No.MP4320

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(Heard together)

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Coram : Hon Mrs Justice Le Pichon in Court

Date of Hearing : 5 February 1998

Date of Delivery of Judgment : 5 February 1998

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J U D G M E N T

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1. I have before me two Originating Motions : one in respect of Mee Di Weaving Factory Limited ("Mee Di") and the other in respect of Best Luck Investment Company Limited ("Best Luck"). The Originating Motions seek stop orders under Order 50, rule 15(1) of the Rules of the High Court to prohibit Mee Di and Best Luck from registering the transfer of the shares in question or from making any payment of dividend or interest due thereon.

2. The shares in Mee Di consist of 83,100 shares out of 98,200 shares standing in the name of Ng Ching Ying, now deceased ("the Deceased"). In Best Luck, the order relates to 4,000 out of 4,999 shares, also standing in the name of the Deceased.

3. The application is made by Ng Man Pui, who is a patient acting by HSBC Trustee (Hong Kong) Limited, her next friend. The Deceased was a daughter of the Patient. The shares were transferred to Ng Ching Ying several years ago at a time when apparently the Patient was not capable of dealing with her own affairs, having, some years prior to the transfers, suffered a stroke. There is before the court a statutory declaration as well as a statement by one of the sons of the Patient, Lam Chun Ming. Suffice to say that there is a strong prima facie case that the shares in question "transferred" to Ng Ching Ying still belong to the Patient. That is a matter which falls to be decided in an action in the High Court which is pending.

4. For present purposes, the Patient, by her next friend, simply seeks to stop any disposition of those shares or the payment of any dividend or interest due or to become due thereon pending that action in which the beneficial entitlement to the disputed shares will be determined. The two companies involved, each of which is the 1st Respondent to the relevant application, have indicated that they are content to abide by any order that may be made by this court and they do not themselves oppose the application.

5. The 2nd Respondent, being the estate of the Deceased, also does not oppose the motion. However, one of the questions that did arise was whether it would be appropriate for the Patient by her next friend to give any undertakings as regards damages to the estate of the Deceased. It is relevant to say that no Grant of Probate has yet been made to the estate of the Deceased. In those circumstances, it is difficult to see how her estate can be prejudiced since, until probate is granted, there can be no dealings with the shares. As and when probate is granted, it is always open to the personal representative to make an application, if supported by appropriate evidence, under Order 50, rule 15(3), to seek to vary or discharge the stop orders.

6. In these circumstances, I am satisfied that stop orders should be made in respect of the securities in question and that there is no basis for requiring the Patient to provide an undertaking as to damages to the estate of the Deceased.

7. I will therefore make the Orders sought which include an undertaking as to damages in favour of the company whose shares are involved.

8. There is to be no order as to costs.

(Doreen Le Pichon)

Judge of the Court of First Instance
High Court

Representation:

Mr Godfrey Lam, inst'd by M/s Wilkinson & Grist, for Applicant

Miss Julie Lau, inst'd by M/s Iony Lam & Horrace Lau, for Respondents