SUN KING KAI (孫慶愷) also known as DEBORAH KING KAI SUN and also known as DEBORAH KING SUN, the Executrix of the estate of KONG TUEN (or DUEN) YEE (江端儀), deceased v. COLLEEN CHEN (張可兒) also known as COLLEEN CHEUNG and also known as RUTH CHEUNG AND ANOTHER

HCMP 777/2023

[2023] HKCFI 3046

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 777 OF 2023

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D E C I S I O N

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1.  This is the aftermath of this court’s judgment after trial in HCA 413/2015, which was handed down on 28 April 2022 (“the Judgment”). It was in respect of the dispute over the possessory title of 5^th Floor, No. 7 Soares Avenue, Kowloon, and 5^th Floor, No. 5 Soares Avenue, Kowloon (“the Flats”). The background, dispute and findings of this court were set out in the Judgment, which will not be repeated here, but the same definitions and abbreviations there are adopted for the present purpose.

2.  Finding the possessory title in favour of its paper title owner, ie the estate of Kong, this court also found the existence of a charitable trust in respect of the Flats as a matter of law and fact. Whilst prepared to consider granting a declaration of charitable trust in respect of the Flats, this court refrained from doing so for the reasons that first not all the apparently interested parties were before the court; and second submission in this respect was not made at the trial.

3.  Following the indication of this court, the estate of Kong now follows up by these miscellaneous proceedings commenced on 22 May 2023 for a declaration that the Flats are held by the estate of Kong on charitable trust for the advancement of Christianity (“the Charitable Trust”).

4.  The court has jurisdiction to make a declaration as to the existence of a charitable trust for the advancement of religion: see for instance Re Tsing Shan Monastery [2003] 1 HKLRD 237 at §17.7.

5.  While this is a call-over hearing, the court has power to dispose of the application by summary determination if the circumstances permit: see O28, r4, Rules of the High Court, Cap 4A.

6.  By the Judgment, this court found that Kong had manifested and acted upon a clear intention to create a charitable trust in respect of the Flats, notwithstanding the apparent bequest of the same to 7 persons named in her will. This court found that the events and the will should be understood in context and against the circumstances as explained in the Judgment. It was a clear finding after trial that the Flats were and still are subject to a charitable trust for the advancement of Christianity.

7.  Probate of the estate of Kong was granted to Sun on 31 August 1968. There was never vesting of the beneficial interest in the Flats in any of the beneficiaries named in Kong’s will.

8.  Apart from Sun and Cheung, ie the daughter of Kong, there are 5 other beneficiaries named in the will. Now evidence of the effort to ascertain their fate and whereabout has been adduced. They were respectively located in Hong Kong, Singapore, Malaysia and the US, but the respective foreign lawyers instructed to track them down all came back with search results that these beneficiaries under the will have passed away.

9.  Hence the naming of Cheung as a party in these proceedings. In line with her stance and evidence at the trial of HCA 413/2015, it is not surprising that she does not oppose the application in these proceedings.

10.  Strictly the estates of the respective deceased beneficiaries named in the will should be entitled to be heard in these proceedings. However, that must be viewed against the background which was explained in the Judgment and mentioned above, namely that none of the beneficiaries has ever come forward to claim or seek vesting of beneficial interest in the Flats notwithstanding their knowledge about the apparent bequests in the will of Kong, as this court found in the Judgment, and the grant of probate in respect of the will of Kong since 1968. Indeed, as explained in the Judgment, that also constituted material circumstances supporting the intention of Kong and the understanding of the same shared by all those concerned towards the charitable nature of the scheme of Kong, albeit effected by way of her will. In these circumstances, this court takes the view that the fact that the estates of the respective deceased apparent beneficiaries named in the will of Kong are not further joined ought not be allowed to stand in the way.

11.  The Secretary for Justice as before was joined as a necessary party, who by letter dated 19 September 2023 confirmed that it would take a neutral stance in these proceedings.

12.  Attendance of Cheung and the Secretary for Justice were thus excused by the earlier direction of this court.

13.  I therefore make the declaration sought under §1 of the originating summons. No further specific relief or direction is sought upon the declaration today.

14.  As requested, I make no order as to costs.