Lam Keung v. Lam Shu Sang

HCMP 525/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 525 OF 2013

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J U D G M E N T

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1.This is an application by ex parte originating summons dated 18 March 2013 taken out by the Applicants for the following relief:

(1)  LAM WAI WING (藍偉榮), deceased be removed as trustee of the said Properties;

(2)  The entire legal and beneficial estate and interest of and in the said Properties do vest in the Applicants absolutely;

(3)  Such further and other relief as the Court shall think fit; and

(4)  No order as to costs.

2.According to the affirmation filed on 18 March 2013 of Mr Lam Keung (藍强), who is 59 years of age, he and his elder brother Mr Lam Shu Sang (藍樹生), born on 30 October 1947 now aged 65 years, acquired the ownership of the said Properties by way of a Division of Property dated 4 October 1956 which was registered in the Land Registry by Memorial No. N135409 with their father Mr Lam Wai Wing (藍偉榮) as trustee. Mr Lam Wai Wing passed away on 27 April 1983.  Since the late Lam Wai Wing did not hold any property of which he had beneficial interest during his lifetime, no grant of probate or letters of administration has been issued in respect of his estate, and the search result at the Probate Registry conducted by the staff of Messrs Leung Kin & Co, the Applicants’ solicitors, shows that no such grant has ever been issued in respect of the deceased. 

3.Exhibited to Mr Lam Keung’s said affirmation are the following documents, namely,

(1)  copy identity card of Lam Keung and that of Lam Shu Sang;

(2)  copy of Divisional Memorial No. N135409 dated 4 October 1956 showing that the said Properties, namely, those set out in the formal parts above, are registered in the names of Lam Shu Sang and Lam Keung, with the deceased name there “Lam Wai Wing (T.)” and in Chinese “藍偉榮司理”;

(3)  copy land search records of the said Properties bearing the same information of Lam Shu Sang and Lam Keung being owner, Lam Wai Wing being trustee, with the same memorial number and date as in (2) above; and

(4)  copy death certificate of Lam Wai Wing.

4.Regarding item (2) above, it seems to me that “(T.)” means trustee and “司理” means manager.  Ms Constance Leung, for the Applicants, confirms that “(T.)” does mean trustee and she informs me that “司理” means manager or trustee in the circumstances. 

5.At my request, Mr Lam Keung has made a second affirmation filed on 9 April 2013, which exhibits, inter alia, further documents, namely,

(5)  copy birth certificate of Lam Shu Sang;

(6)  copy birth certificate of Lam Keung; and

(7)  a full and complete copy of Divisional Memorial No. N135409, which contains a handwritten record that consent of the District Officer for the division of property had been granted before it was registered by Memorial 135409 on 4 October 1956.

6.This second affirmation of Mr Lam Keung also draws my attention to the difference in the surname of his mother on his own birth certificate, being Fong Sze Mui (方四妹), and that shown in Mr Lam Shu Sang’s birth certificate being Fung Sze Mui (馮四妹).  He affirms that in fact both names refer to one and the same person, their mother.  Ms Leung informs me that the former surname of the mother is the correct one.

7.Also in Mr Lam Keung’s birth certificate, the deceased father’s surname was wrongly spelt as Nam instead of Lam.  Mr Lam Keung has accordingly made a statutory declaration to verify that Lam Wai Wing and Nam Wai Wing refer to one and the same person.

8.It is this kind of full and frank disclosure that is required of litigants who make ex part applications to the court.

9.Having considered all the materials now before me, I am satisfied that the Applicants are beneficial owners of the said Properties which were held by their father Mr Lam Wai Wing as trustee for and on their behalf.  Mr Lam Wai Wing died in 1983 and no grant of probate or for the administration of his estate has been made. 

10.Section 45(e) of the Trustee Ordinance, Cap 29 provides:

“In any of the following cases, namely –

(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; …

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, …”

11.The circumstances of this case fully satisfy the conditions of the said section 45(e).  Since Mr Lam Wai Wing was the sole trustee of the said Properties and he has died without any personal representative, and the Applicants are the only beneficiaries of the said Properties, I make an order in the terms of paragraphs (1), (2) and (4) of the originating summons as set out at the beginning of this judgment.

Ms Constance Leung of Leung Kin & Co, for the Applicants