Re Cheung Po on

HCMP 257/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 257 OF 2013

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D E C I S I O N

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1.This is an application by the applicant, Cheung Po On, for an order that a property do vest in him absolutely for the entire legal and beneficial estate and interest therein. The property in question is known as Sub-Section 1 of Section A of Lot No. 554 in Demarcation District 100, with the address of 6 Tsiu Keng San Wai, North, New Territories.

2.The facts relevant to this application are as follows.  On 25 November 1970, the property was purchased and transferred, by a Conveyance on Sale executed in a form pursuant to the then section 23 of the New Territories Ordinance (Cap 97), to the applicant and to his uncle, Cheung Ah Sang, as trustee.

3.Section 18 of the New Territories Ordinance was in these terms at the time:

“Whenever any land is vested in a minor, it shall be lawful for the Land Officer to appoint some fit person to be a trustee thereof for such minor during his minority and to remove any such trustee and to appoint any new trustee. Every such appointment shall be registered by the Land Officer in the appropriate New Territories Land Office, and upon registration the land the subject of the trust shall vest in the registered trustee for all the estate and interest of the minor therein, and upon registration of the removal of any trustee the land shall divest from the trustee so removed and vest in the continuing trustee or any newly registered trustee as the case may be. The Land Officer before registering a trustee may require him to give security in such manner and to such amount as he may think fit for the due execution of the trust. With the consent of the Land Officer a trustee may buy, sell, mortgage, lease or otherwise deal with or dispose of any property to the like extent as if he were the beneficial owner thereof, anything in the Trustee Ordinance, to the contrary notwithstanding.”

4.It was on this basis that the uncle joined in the purchase of the property as trustee because the applicant was at the time only 16 years old and therefore a minor.

5.The uncle passed away in January 1993, without the trusteeship having been removed from him.  In a supplemental affirmation filed on 27 February which I asked for at the hearing of the application on 21 February, the applicant has stated that to his knowledge his uncle had no children or asset when he died, and that a recent search conducted in the Probate Registry has shown that no probate or letters of administration had been granted in respect of the uncle’s estate.  A recent land search still shows the property as being held by the applicant as beneficiary and by the uncle as trustee.

6.In these circumstances, the applicant has applied to the Court for a vesting order under section 45 of the Trustee Ordinance (Cap 29).

7.Section 45 relevantly provides as follows:

“In any of the following cases, namely-

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(e) 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;

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the court may make an order (in this Ordinance called a vesting 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 …”

8.The circumstances of the present case are closely similar to those in Re Wu Kwok Keung (unrep. HCMP 1383/2011, 10 August 2011), in which Suffiad J made a vesting order pursuant to section 45.  Similar orders had also been made by Yuen J (as she then was) in Re Li Kow Tsai alias Li Ming (unrep., HCMP 73/2001, 12 September 2001) and Re Yuen Long New Territories Land Registry as Lots Nos. 206 and 1138 (unrep., HCMP 7488/1999, 12 January 2000).

9.I am satisfied that this is also an appropriate case in which to exercise the power under section 45 of the Trustee Ordinance, on an ex parte originating summons, to make a vesting order in favour of the applicant, who is in any event the beneficiary entitled to the property.  There shall accordingly be an order in terms of the originating summons.

Mr Fu Mau Ping of Kevin Li & Co., for the Applicant