BANQUE NATIONALE DE PARIS v. R.C. CHEN (ALSO KNOW AS REN CHING CHEN) AND ANOTHER

Grant No. 659 of 1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PROBATE JURISDICTION

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J U D G M E N T

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1. I have read the papers expansively, and I have had the benefit of the explanations and submissions of Mr. Wong. The appeal in the instant summons must obviously be allowed. Since this is an appeal against a requirement of a master, in his capacity as the Probate Registrar, and his refusal to waive that requirement for a Surety's Guarantee in respect of trust properties with a valuer of $9,661,525.60, a word or two need be said.

2. The history that led to the instant appeal is uneventful. A fresh Schedule of Trust Property has been lodged with a gross value of $9,661,525.60. The Probate Registrar required a Surety's Guarantee for these trust properties. Representations were thereupon made to the Probate Registrar who declined to waive his requirement of guarantee, hence the instant appeal.

3. The applicants, in their joint affirmation, have satisfied me that there are valid grounds for waiving or otherwise dispensing with the Surety's Guarantee called for by the Probate Registrar. The explanations offered by the applicants can be summarised briefly as follows: Of the trust properties diclosed in the new Schedule now lodged with the Registry, item 1(a) are properties of which the 1st and 2nd sons of the deceased are beneficiaries. The applicants, as personal representatives of the deceased, have in fact duly executed a Vesting Assent in favour of these sons in escrow, in the sense that the executed deed is now being held by the legal representatives of these sons, pending the determination of the instant appeal. Evidently, the beneficiaries of those properties need no further protection. Items in 1(b), (c) and (d) of the said Schedule referred to properties of three separate T'ongs. Section 15 of the New Territories ordinance prescribes how T'ong properties are to be held by managers, how such managers are to be registered and how their appointments and replacements are to by made. It is very well known in this territory, as a matter of law and practice that, disposition of T'ong properties would need the participation of the registered manager, consensus of the beneficiaries, as well as the blessings of, the District Officer. The deceased registered manager, or those representing him or his estate, would not be able to dispose of or cause to be disposed of alone, properties belonging to the T'ongs. Item 1(b) properties have now two new managers, the administrator of the deceased, is one of the two. Any disposition or proposed disposition of the T'ong properties in item 1(b) by these newly appointed managers, including the administrator of the deceased, would be in the hands of them with the administrator not exercising his powers and functions qua administrator but qua one of the two newly registered appointed managers. T'ong properties under item 1(b) are therefore in good hands. The same may be said of T'ong properties under item 1(c) for which a new manager has also been appointed. New managers are expected to be appointed and registered under section 15 of the New Territories Ordinance, Cap. 97, for Tong properties under item 1(d), but that would not alter the position that all these T'ong properties would require no protection extended to trust properties by the Estate Duty ordinance, Cap. 111. As for trust properties under item l(e), they belonged to one Tang Lim Ming, deceased, Letters of Administration of whose estate have also been granted to the personal representatives of the deceased, the applicants in this appeal. Being personal representatives of the estate of Tang Lim Ming, in their capacity as such personal representatives, they would be responsible for the trust properties in the Schedule for the said Tang Lim Ming, deceased. Again, no protection is needed. The same applies to trust properties under items 1(f) and 1(g). They are shops which belonged to Tang Lim Ming deceased. No more need be said. The trust property under item 2A with an insignificant estimated value of $600 also belonged to the same deceased, Tang Lim Ming and the same principle would apply. As for the remaining trust properties in this new Schedule, items 2 and 3, they belonged to the same Tongs for trust properties in items 1(c) and 1(d) respectively. My comment as regards sufficient protection for T'ong properties would apply to these remaining trust properties.

4. Mr Wong is perfectly entitled, therefore, to invite this Court to waive the requirement of the Surety's Guarantee of the Probate Registrar. None of the trust properties, as explained by the applicants, would require the slightest protection of the Probate Court. The appeal of the applicants will therefore be allowed. The applicants' costs be paid out of the estate of the deceased and such costs to be taxed on the trustee basis. The order I make is as follows:-

1. Appeal allowed; requirement of the Surety's Guarantee in respect of the trust properties listed in the Schedule of Trust Property lodged be waived.

2. The applicants do have costs of this appeal, such costs to be taxed on the trustee basis and paid out of the estate.