LEE KWOK LEUNG v. HO SUET CHUN (aka HO SHUET CHUN)

DCMP 1064/2024

[2024] HKDC 727

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1064 OF 2024

------------------------------

------------------------------

------------------------------

DECISION

------------------------------

1.  This is an application by Originating Summons dated 20 February 2024 (“OS”) by Plaintiff (“P”) for a vesting order under sections 45(b)(iii) and 51 of the Trustee Ordinance, Cap 29 (“the Ordinance”).

2.  The Defendant (“D”) is the registered owner of Flat D on 2^nd Floor, Block D of Wah Chi Mansion, No 6 Kam Fung Street, Kowloon (“the Property”). The Property was conveyed to D from Madam Ho Pik Kwan (“Madam Ho”) under an Assignment dated 30 May 1984 (“the Assignment”). Madam Ho is the mother of P and the sister of D.

3.  According to P, because Madam Ho was diagnosed with cancer and P was relatively young in age, in 1984 the Property was transfer to D who was to hold the legal title of the Property on trust for P until P requests that the Property be conveyed to him. In this regard, a Declaration of Trust dated 30 May 1984 (“Declaration of Trust”) was entered into by D whereby she declared to hold the Property “in trust” for P and at anytime thereafter at the request and cost of P convey the Property to him or such person or persons at such time and in such manner as P shall direct.

4.  According to the supporting affirmation filed in support of the OS, after Madam Ho passed away in 1986, P had not been in contact with D. As he was occupying the Property for his own use and because of the Declaration of Trust, he had not bothered to request D to convey the Property back to him. It was only when his ex-wife (“Madam Ng”), who had been staying at the Property with their children since their divorce filed a claim for adverse possession of the Property against P and D in 2021 (DCCJ 1241/2021) and as part of the settlement of that action he agreed to assign the Property to their children, were attempts made to locate D.

5.  During the entire proceedings of DCCJ 1241/2021, solicitors for Madam Ng had not been able to validly serve any documents on D at the last known address of D. Death search with the Births & Death Registry do not record any death records of D.

6.  According to the affirmation of service, the OS and supporting affirmation sent by ordinary and registered post to the last known address of D were returned marked “no such person” and “unclaimed- return to sender” respectively. I am satisfied that it is proper to proceed in the absence of D.

7.  Section 45(b) of the Ordinance provides, “where a trustee entitled to or possessed of any land or interest therein, whether by way of mortgage or otherwise, or entitled to a contingent right therein, either solely or jointly with any other person … (iii) cannot be found, or, being a corporation, has been dissolved … 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 …”.

8.  Once the preconditions set out in the statute have been satisfied, the Court has a discretion to vest the property directly in the beneficiary: see Re Lee Yang, Shiu Chuen Joyce [2021] 4 HKLRD 252 at §16 per DHCJ Paul Lam SC.

9.  The Court may make a vesting order if there is clear evidence justifying making one. However, the Court must proceed cautiously because it is being asked to make a final, as opposed to interlocutory order which, in practical terms, could be worth millions of dollars without hearing any opposing party, or without anyone challenging the applicant for failing to make full and frank disclosure. The Court must examine the evidence presented by the applicant critically: Re Man Kin as the administrator of the estate of Man Pak Chun, HCMP 2565/2014, 18 April 2016, Chow J (as he then was).

10.  Having considered the evidence before me and the submissions of Mr Wan, solicitors for P, applying the above legal principles, I am satisfied that this is a proper case for this Court to make a vesting order that the legal and beneficial interest in the Property be vested in P absolutely. D’s legal title is proved by the Assignment. The trust is proved by the Declaration of Trust. Both documents have been registered in the Land Registry. I am also satisfied, albeit only by indirect evidence, that the rateable value of the Property is within the jurisdiction of the District Court.

11.  I make no order as to costs.