RE LEUNG HUNG NIM (梁洪念) as the Administrator of the estate of LEUNG YUE SIN (梁如羡) alias ARTURO LEON alias ARTURO LEON NUY, Deceased

HCMP 65/2020

[2020] HKCFI 551

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 65 OF 2020

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DECISION

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1.  By an ex parte originating summons dated 13 January 2020 (“the OS”), the applicant applies for an order to vest the property known as All that one equal undivided 13^th part or share of and in the Remaining Portion of Kowloon Inland Lot No 2342 together with the right of exclusive possession of the 3^rd Floor of No 174A Fa Yuen Street, Kowloon, Hong Kong (“the Property”) in the applicant pursuant to s.45 of the Trustee Ordinance, alternatively an order that the Registrar of the High Court be appointed to convey the Property to the applicant pursuant to s.51 of the Trustee Ordinance.

2.  Originally, the hearing of the OS was fixed on 23 March 2020.  However, due to the extension of the General Adjourned Period, the hearing could not proceed as scheduled.  The applicant has agreed that that the OS be determined on paper without an oral hearing.

3.  According to the applicant, the factual background of his application is as follows:

(1)  The applicant is the administrator of the estate of Leung Yue Sin (梁如羨) alias Arturo Leon alias Arturo Leon Nuy, Deceased (“the Deceased”).

(2)  By an assignment made on 16 March 1968 (“the Assignment”), one Tang Hok Chau and one Tong Fung Moon as the vendors (“the Vendors”) assigned the Property to the Deceased as the Purchaser.  As recorded in the Assignment, the Vendors and the Deceased had an agreement for the sale of the Property to the Deceased at the price of HK$47,200, and the said price had been paid by the Purchaser to the Vendors.

(3)  The Deceased however was already dead at the date of execution of the Assignment.  According to a death certificate issued by the authority in Mexico (“the Mexico Death Certificate”), the Deceased passed away in Mexico on 20 August 1966.

4.  Mr Earnest WH Cheung, counsel for the applicant, submits that:

(1)  The Deceased has already passed away on the date of the Assignment.  As a result, the Assignment could not have the effect of conveying the Property to the Deceased, for a person dead at the date of the execution of a deed could take no benefit under it.  See Re Tilt; Lampet  v Kennedy (1896) 74 LT 163.

(2)  Since the purchase price has been duly paid to the Vendors, the estate of the Deceased now in fact is the sole beneficial owner of the Property, and the Vendors are merely holding the Property on trust for the estate of the Deceased as bare trustees.

(3)  The Assignment was executed 52 years ago. The whereabouts of the Vendors are unknown.  It is also uncertain whether the Vendors are still alive.

(4)  In these circumstances, the order sought in the OS is necessary, and the applicant is entitled to have the order.

5.  In my view, there is a fundamental problem in the applicant’s case, ie whether the Deceased has really passed away before the execution of the Assignment.

6.  The applicant is the youngest son of the Deceased.  The applicant has filed 2 affirmations in support of the OS, one is his affirmation, the other is an affirmation of Madam Mak Kwai Lai (“Mak”). Mak is the wife of Leung Hung Wood (deceased) (“LHW”), who was the Deceased’s eldest son.

7.  In his own affirmation, the applicant in fact has not given any evidence showing that the Deceased has passed away before the execution of the Assignment.

8.  In Mak’s affirmation, the evidence in support of the claim that the Deceased has passed away before the execution of the Assignment is as follows:

(1)  The Deceased went to Mexico many years ago to earn a living.  In 1966, Mak met the Deceased in Hong Kong, and the Deceased told Mak that he had purchased a flat for LHW.  Sometime after that meeting, the Deceased went back to Mexico.

(2)  At the time of that meeting, Mak had already known LHW but they had not yet started dating.  They started dating in late 1966.  After they started dating, LHW told Mak that the Deceased had passed away in Mexico.

(3)  Mak produced a copy of the Mexico Death Certificate in her affirmation.  According to that document, “ARTURO LEON NUY” died in Mexico on 20 August 1966.

(4)  Mak said that after she and LHW started dating, she went to the Property frequently.  At that time, LHW and his mother were living at the Property.  LHW told Mak that the Property was purchased by the Deceased.  Mak has produced some documents showing that LHW was living at the Property in 1966.

(5)  Mak said that she and LHW married in July 1967. After the wedding, they lived at the Property together with LHW’s mother. After several months, LHW’s mother went back to Toishan and lived there.  Mak and LHW’s son was born in 1968, and their daughter was born in 1969.  LHW lived at the Property until his death in 2001.  Mak has been living at the Property until now.

9.  Notwithstanding the evidence said and the documents produced by Mak, I am unable to reach a conclusion that the Deceased has passed away before the execution of the Assignment.

(1)  The Assignment was prepared by a law firm in Hong Kong.  On the face of the Assignment, the Assignment was executed by the Deceased in the presence of a solicitor of that law firm, and a clerk in that firm had interpreted the contents of the Assignment to the Deceased.  The Deceased was described as “ARTURO LEON alias LEUNG YUE SIN (梁如羨)” in the Assignment, and the passport number of the Deceased was recorded in the Assignment.  On the face of the document, the law firm had checked the identity of the assignee by looking at his passport before the execution of the Assignment, and the law firm was satisfied that the assignee in fact was the Deceased.

(2)  I note that the assignee has put down a Chinese signature 梁如羨 on the Assignment. That is the Chinese name of the Deceased.

(3)  There is a chop on the Assignment showing that stamp duty concerning the Assignment was paid on 8 April 1968.  In the light of the chop, it is more probable than not that the date of the Assignment, ie 16 March 1968, is correct.

(4)  If the Deceased has indeed passed away long before the execution of the Assignment, that would mean that someone pretended to be the Deceased and went to the law firm to execute the Assignment on 16 March 1968 (there is no evidence showing why there would be such a person and why he would do so).  Further, notwithstanding having done an identity check, the law firm was unable to find out the disguise.  I have tremendous difficulties in accepting all these.  In my view, all these are inherently improbable.

(5)  I have considered the Mexico Death Certificate. As stated in that death certificate, the deceased mentioned in that document was single.  However, the Deceased was a married person with children.  There is no evidence explaining this discrepancy.  No passport number is mentioned in that death certificate.

(6)  Taking into account all these, I cannot say that the deceased mentioned in the Mexico Death Certificate is really the Deceased.

(7)  As to the fact that LHW and his mother were already living in the Property in 1966, this fact is irrelevant for the purpose of proving the Deceased was alive or was not alive at the time of the execution of the Assignment.  The applicant’s case is that the Assignment was executed on 16 March 1968.  Accordingly, according to the applicant’s case, although LHW and his mother were living at the Property in 1966, the Deceased had not acquired the Property at that time.  LHW and his mother might live at the Property under a tenancy or a licence granted by the owner of the Property in 1966.

(8)  Mak mentioned in her affirmation that her late husband told her that the Property was purchased by the Deceased.  However, Mak did not say when her late husband told her this.  In any event, the applicant’s case is that the Assignment was executed on 16 March 1968 but not at any earlier time.

(9)  Mak said in her affirmation that after she and LHW started dating in late 1966, LHW told her that the Deceased had passed away in Mexico.  However, Mak has not specified the exact time at which LHW related this information to her.  Further, in talking about events occurred more than 50 years ago, in the absence of any reliable documentary evidence (for the reasons set out in the above, I do not regard the Mexico Death Certificate as a reliable documentary evidence proving the death of the Deceased on 20 August 1966), very often memory may not be accurate or reliable.  It would not be a surprise that at a point of time, LHW mentioned the death of the Deceased to Mak.  However, that point of time may not be in late 1966.

10.  The factual foundation of the applicant’s case is that the Deceased has passed away before the execution of the Assignment. In my judgment, there is no satisfactory evidence proving this factual foundation.  Accordingly, the OS would be dismissed.

11.  I dismiss the OS.  Since this is an ex parte application, I make no order as to costs.

12.  I thank counsel for the assistance provided to the court.