RE LAM KWAN KIT t/a YING KIT STOCK CO

HCMP 2547/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2547 OF 2006

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J U D G M E N T

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1. This is an application by the applicant for an order that the entire legal and beneficial estate and interest of and in the land registered in the Islands New Territories Land Registry as SECTION C OF SUBSECTION 2 OF SECTION C OF LOT NO. 359 IN DEMARCATION DISTRICT NO. 2 MUI WO, LANTAU ISLAND, NEW TERRITORIES (“the property”) be vested in the applicant and Roderick John Sutton as the joint and several trustees of the property of Lam Kwan Kit who is a bankrupt.

2. The property was owned by one Lum Yung who, by a will made on 19 February 1998, devised and bequeathed the property to Lam Kwan Kit (“the bankrupt”) for his own use and benefit absolutely.  By a grant of probate, grant no. HCAG006751 of 2001, probate was granted to the bankrupt, he being appointed the sole executor under the will of Lum Yung.  Probate was granted on 31 December 2001.

3. Although the bankrupt was granted probate on 31 December 2001 he had not given an assent to pass the property to himself.  On the evidence before the court the bankrupt disappeared following an investigation by the Securities and Futures Commission in 2002.  On 24 January 2002 the Securities and Futures Commission announced that it had issued a restriction notice to prohibit the bankrupt trading as Ying Kit from carrying on the business of dealing in securities and disposing of or dealing with any assets held by him and Ying Kit in Hong Kong or elsewhere, whether as principal or agent, without the Securities and Futures Commission’s prior written consent, in order to preserve the assets of Ying Kit and its clients and to protect the interest of these clients.

4. In April 2003 a judgment creditor filed a petition for bankruptcy against the bankrupt.  The bankruptcy order was made on 9 July 2003 by a master of the High Court.  On 29 August 2003 the applicant and Roderick John Sutton were appointed joint and several trustees of the property of the bankrupt at a meeting of creditors.  Such appointment was duly certified by the senior insolvency officer, acting on behalf of the Official Receiver. 

5. Proofs of debts have been filed with the Official Receiver which totalled the sum of HK$4,200,808.42.

6. Clause 5 of the will of Lum Yung the deceased provided that the executor appointed under the will should whenever possible pay all debts and estate duties and funeral expenses from and out of her other property, i.e. property other than the property.

7. The deceased died on 13 February 2001.  There is no other property other than the property belonging to Lum Yung the deceased.  If an assent had been given by the bankrupt to pass the property to himself then the property would have passed to the applicant and Roderick John Sutton as the trustees in bankruptcy upon the bankrupt being adjudged a bankrupt (section 58 of the Bankruptcy Ordinance, Cap. 6). 

8. Section 70(2) of the Probate and Administration Ordinance, Cap. 10 provides as follows :

“Any person who, as against the personal representative, claims possession of immovable property, or the appointment of a receiver thereof, or a transfer or conveyance thereof, or an assent to the vesting thereof, or to be registered as proprietor thereof, may apply to the court for directions with reference thereto, and the court may make such vesting or other order as may be deemed proper, and the provisions of the Trustee Ordinance (Cap 29), relating to vesting orders and to the appointment of a person to transfer or convey, shall apply.”

9. Where a trustee entitled to or possessed of any land or interest therein cannot be found a court may make a vesting order vesting the land in any such person as the court may direct (section 45(b)(iii) of the Trustee Ordinance, Cap. 29).

10. I am satisfied that if the bankrupt were here to administer the estate of Lum Yung the deceased he would and should have executed an assent to pass the property to himself as he was the specific devisee of the property under the will. 

11. The property is not required for administering the deceased’s estate as the deceased died more than 6 years ago and no one has applied to administer her estate.  That is understandable as the property of the deceased consists of only the property and nothing else. 

12. I am satisfied that the court ought to grant the vesting order sought and I make an order in the terms of paragraph 1 of the originating summons.  I also make an order in the terms of paragraphs 2 and 6 of the originating summons.