Re Hang Hau, Sai Kung

HCMP002382/1987

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HEADNOTE

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A minor succeeded to an interest in land in the New Territories. A trustee for the minor was appointed by the land officer under section 18 of the New Territories Ordinance, Chapter 97, the land therefore vesting in the trustee pursuant to the provisions of that section. The minor attained the age of majority and the trustee died. The former minor applied for a vesting order.

HELD: Making the order, that the vesting order was necessary; but that it ought not to be so and that the New Territories Ordinance ought to be amended, so that all trusts approved by land officers under section 18 should automatically determine on the beneficiary reaching the age of majority.

1987. No. M.P. 2382

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Godfrey in Chambers

Date of Hearing: 23rd November 1987 and 22nd January 1988

Date of Delivery of Judgment: 22nd January 1988

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JUDGMENT

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1. This is an application for a vesting order. It relates to property in the New Territories.

2. The applicant is Po Shui Kwan. He is beneficially interested in a 1/3 share in the property. He succeeded to his interest on 21st May 1954. He was then 16 years old. The land officer appointed Po Pak as trustee for the applicant, acting under section 18 of the New Territories Ordinance, Chapter 97. The trustee died intestate on 19th October 1978 without having dealt with the property in any way.

3. I suggested recently (see M.P. No. 2133 of 1987, 2nd November 1987, unreported) that it would be a good thing if, in this sort of case, the Land Office resumed its former practice under which the land officer deleted reference to the trusteeship on the register on proof of the attainment of the age of majority by the minor and of the death of his trustee, instead of compelling the former minor to apply to the court for a vesting order.

4. In my judgment in the earlier case, I stated that I had been unable to discover the reason for the change of practice. I have since had the benefit of fuller assistance from the Registered-General, for which I am indebted, and from which it appears that the view taken was that the former practice was unlawful. I do not think I need to consider whether this view is correct. I pointed out in my judgment in the earlier case that there may be a need to amend section 18 so as to provide, in effect, that all trusts approved by land officers under section 18 should automatically determine upon the beneficiary reaching the age of majority; and that I understand that a proposal to this effect is now under consideration as part of a forthcoming revision of the New Territories Ordinance. Although the District Land Offices have now been taken over by the Registrar-General's Department, I understand that the land officer referred to in section 18 of the New Territories Ordinance is in fact the District Officer, who comes under the Secretary for District Administration. I would express the hope that the Secretary for District Administration will put forward at an early date proposals for the necessary amendments to the New Territories Ordinance.

5. In the meantime I will make the vesting order for which the applicant asks. I am now satisfied that such an order is necessary, having regard to the view taken by the Land Office of section 18; but it ought not to be so, and the sooner the New Territories Ordinance is amended accordingly, the better.

Representation:

Mr. Danny Yu of Messrs. Philip K.H. Wong & Co. for the Applicant.