RE THE HONG KONG AMATEUR FISHING SOCIETY LTD

DCMP 4187/2025

[2026] HKDC 915

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 4187 OF 2025

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JUDGMENT

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Introduction

1.  This is an ex parte application made by way of an originating summons dated 28 July 2025 (“the Summons”) seeking relief concerning the beneficial ownership of Flat D on the 15^th Floor, Lucky House, Nos 20, 22, 22A, 22B & 24 Jordan Road, Nos 62A & 62B Parkes Street and No 65 Piklem Street, Kowloon, Hong Kong (“the Property”). The applicant, the Hong Kong Amateur Fishing Society Limited (“the Applicant”), seeks, inter alia, a declaration of beneficial interest and a vesting order pursuant to sections 45 of the Trustee Ordinance (Cap 29) (“TO”) regarding the whole of the legal title and interest in the Property.

2.  The Originating Summons was supported by the 1^st Affirmation of Mr Kun Hon Man (“Mr Kun”), which set out the factual basis for the relief sought and exhibited the contemporaneous minutes, resolutions and financial records relied upon. At the oral hearing on 23 January 2026, I raised a number of matters requiring clarification, including (1) the factual basis for the asserted trust for members; (2) the continuity of membership between the unincorporated society and the Applicant; and (3) the steps taken to ascertain the status of the registered owners and any personal representatives. Directions were accordingly given for supplemental evidence and submissions.

3.  Subsequently, the 2^nd Affirmation of Mr Kun and the Applicant’s supplemental skeleton submissions were filed on 20 February 2026 in compliance with those directions.

4.  I now set out my judgment and reasoning below.

Background

5.  The relevant background may be stated briefly. The Applicant was incorporated on 17 December 1966, succeeding an unincorporated association of (「香港業餘釣魚會」) whose members had, since the early 1960s, organised activities and meetings for the benefit of the fraternity (“the Unincorporated Society”).

6.  Prior to incorporation, the Unincorporated Society resolved to acquire a permanent clubhouse, and a committee (“the Special Committee”) was appointed to identify suitable premises and manage the acquisition process. On 1 September 1960, the Special Committee resolved that five members i.e. Mak Wai Tin (“Mak”), Tang Kai (“Tang”), Ying Fook Ting (“Ying”), Choi Chun Yin (“Choi”) and Ho Chiu (“Ho”), be appointed to execute the conveyancing documents for the intended purchase.[1] The resolution makes clear that these individuals were nominated in their representative capacity, and not as purchasers in their own right:-

「討論事項

一．關於購置會所應推何人簽約案：

丘瓊生提議：推蔡錚然、何釗、鄧啓、麥為天、應福定五人負責簽約。

鄭春附和。決議：通過。」

7.  The minutes of the 5^th Annual General Meeting on 16 January 1961 record that the premises identified by the Special Committee would serve as the Unincorporated Society’s permanent clubhouse, and that members were informed of the progress of the acquisition as a Society undertaking.[2]

8.  Pursuant to the resolution, the Property was subsequently acquired on 1 June 1962 by the 5 individuals as joint tenants, while renovation and fitting-out works were further entrusted to seven members appointed by an earlier resolution on 15 June 1961.[3] Thereafter, the Unincorporated Society and subsequently, the Applicant, assumed exclusive possession and control of the Property:-

8.1. Meetings were held there shortly after the acquisition of the Property;[4]

8.2. The title deeds were retained by the Unincorporated Society and, after incorporation, by the Applicant.

8.3. The Applicant’s first balance sheet as at 31 March 1967 recorded the Property as an asset[5];

8.4. Relevant utility bills, such as insurance renewal notices and management fee receipts from 2015 to 2022, further identify the Applicant as the payer at the address of the Property.[6]

9.  It is the Applicant’s evidence that, upon incorporation, its membership was identical to that of the Unincorporated Society, and that it assumed all assets and liabilities of its predecessor.[7] Its case is that the Property has since been continuously used as its clubhouse, with all expenses, maintenance, and management undertaken by the Applicant. No member or registered owner has ever asserted any personal beneficial entitlement.

10.  As set out in the 1^st and 2^nd affirmations of Mr Kun, there appears to be no evidence that any of the five registered owners, or any person claiming through them, ever asserted a personal beneficial interest or treated the Property as anything other than the Applicant’s clubhouse.

11.  As to the status of the five registered owners, the Applicant’s evidence establishes that three of them, i.e. (1) Ying, (2) Choi and (3) Ho, are deceased. Their death certificates were obtained by reference to the Hong Kong Identity Card numbers appearing in the 1985 Annual Return filed with the Registrar of Companies.[8]

12.  On the other hand, there is no primary documentary evidence confirming the deaths of (4) Mak or (5) Tang. The Applicant explains that it does not possess their HKID numbers and has therefore been unable to conduct comprehensive death record searches. Probate searches conducted in early 2024 and again in April 2025 yielded no results for either individual.[9] The Applicant submits that it has no means of ascertaining whether Mak or Tang are alive or deceased, nor of identifying or locating any personal representatives or next-of-kin.

13.  Against that factual background, the Applicant further submits that the five registered owners held the legal estate as nominees for the Unregistered Society, and that the beneficial interest has at all material times resided in the Unregistered Society and, following incorporation, in the Applicant.

Applicable Legal Principles

14.  It is trite law that unincorporated associations, lacking legal personality, cannot own property. Yet it is not uncommon to see gifts of property made to unincorporated associations, and such gifts are often treated as being “owned” by the association. The legal framework governing property held for unincorporated associations is well settled. The starting point is the analysis of Le Pichon J (as she then was) in Chap Yick Clansman’s Association Ltd v Mok Fai [1997] HKLRD 580 at 585C-D, where her ladyship identified four distinct juridical bases upon which property may be held for such bodies, namely: (1) joint tenancy; (2) contract-holding theory; (3) trust for purposes; and (4) trust for members.

15.  Where an unincorporated association subsequently incorporates, and the membership of the incorporated body is identical to that of the unincorporated association, the effect of incorporation is to alter the basis upon which the members hold their rights inter se, and the contractual matrix governing the association is “novated” upon incorporation.[10] The members, by adopting the constitution of the incorporated body, collectively assent to a new regime under which the property previously held for their purposes is thereafter to be held for the purposes of the incorporated entity. The members are, in consequence, estopped from asserting any personal beneficial interest inconsistent with the terms of incorporation. This principle has been recently reaffirmed by DHCJ Jonathan Wong in Re Chu Clansmen’s Fraternity Association Ltd [2024] 4 HKLRD 208 at §§3.3-3.7, where the Court emphasised that continuity of membership, coupled with the incorporated body’s express assumption of assets and liabilities, supports the vesting of the beneficial interest in the incorporated entity.

16.  Further, in determining whether “trust for members” is engaged, the Court is concerned not with formalities but with substance. The inquiry is directed to the intention objectively manifested at the time of acquisition i.e. whether the property was purchased as a collective undertaking for the purposes of the association, and whether the individuals in whose names the legal estate was taken were intended to act merely as nominees. Such intention is ordinarily to be inferred from contemporaneous minutes, resolutions, financial arrangements and the subsequent treatment of the property: see Re Chu Clansmen’s (supra).

17.  On the other hand, the Court’s jurisdiction to make a vesting order is found in section 45 of the TO. For present purposes, subsections (c) and (d) are relevant.[11] The jurisdiction is remedial in character and is directed to overcoming practical obstacles to the proper administration of trust property. The Court is not required to insist upon exhaustive or futile enquiries, particularly where the events in question occurred decades earlier and the individuals concerned cannot be traced without basic identifiers such as Hong Kong Identity Card numbers.

18.  These principles guide the analysis in the present case.

Analysis

19.  It appears that the present application falls within the fourth category in Chap Yick, namely property held on trust for the members of the association for its purposes. In that category, the legal estate is commonly vested in individuals nominated to hold title, while the beneficial interest is held collectively by the members from time to time. Here, the trust is not a traditional express trust with fixed beneficiaries, but rather a functional arrangement arising from the contractual relations among members and the purposes of the association. The Court’s task is to ascertain, from the contemporaneous documents and the conduct of the association, whether the acquisition was undertaken as a collective endeavour and whether the individuals in whose names the property stands were intended to act in a representative capacity rather than as beneficial owners.

20.  In the present case, the contemporaneous documents exhibited to the 1^st and 2^nd affirmations of Mr Kun leave little room for doubt as to the character of the arrangement under which the Property was acquired and held:-

20.1. The minutes[12] show that (1) the initiative to secure a permanent clubhouse was conceived, debated and approved at general meetings of the Unincorporated Society; (2) a Special Committee was constituted to identify suitable premises and manage the acquisition; and that (3) the five individuals in whose names the legal estate was ultimately taken were nominated by formal resolution to execute the conveyancing documents on behalf of the Applicant.

20.2. Further, the funding was raised collectively from members, the renovation and fitting-out works were entrusted to members appointed by resolution, and the Property was thereafter used exclusively as the Applicant’s clubhouse.

20.3. No document, conduct or communication suggests that any of the five registered owners asserted personal entitlement or regarded themselves as beneficial owners.

21.  The only coherent inference from the totality of the evidence is that the legal estate was taken by them in a representative capacity, and that the beneficial interest resided in the members of the Unincorporated Society for its purposes.

22.  The evidence further establishes a continuity of membership between the Unincorporated Society and the Applicant upon its incorporation on 17 December 1966. The constitution of the incorporated body was adopted by resolution of the same membership[13], and the Applicant’s first balance sheet as at 31 March 1967 recorded the Property as an asset of the newly incorporated entity.[14]

23.  Meanwhile, that treatment continued consistently in the decades that followed: (1) the Applicant paid the management fees, utilities and insurance premiums; (2) it retained custody of the title deeds and exercised exclusive possession and control of the Property as its clubhouse; (3) no member, whether before or after incorporation, has ever asserted a personal beneficial interest.

24.  In these circumstances, the members, by adopting the constitution of the incorporated Applicant and by their long-standing conduct thereafter, must be taken to have assented to the beneficial interest vesting in the Applicant. They are estopped from asserting any contrary entitlement, and the beneficial ownership has, since incorporation, resided in the Applicant alone: see Chap Yick and Re Chu Clansmen’s (above).

25.  As to the status of the five registered owners, the evidence satisfies the statutory threshold of “uncertainty” for the purposes of section 45(c) and (d) of the TO. As set out in the 1^st and 2^nd Affirmations of Mr Kun, three of the five i.e. Ying, Choi and Ho, are confirmed to be deceased. In respect of Mak and Tang, the Applicant has no HKID numbers, no contact information, and no documentary trail from which meaningful enquiries could be pursued. Negative probate searches in 2024 and 2025 yielded no results, and the events in question occurred more than six decades ago.

26.  In these circumstances, and applying the pragmatic approach endorsed in Re Chu Clansmen’s, I am satisfied that it is genuinely uncertain whether Mak and Tang are living or dead, and equally uncertain whether any personal representatives exist or can be identified. The statutory preconditions for the exercise of the vesting jurisdiction are therefore met.

27.  In light of these findings, it follows that the Applicant is the sole entity presently entitled to the beneficial interest in the Property, and that the continued vesting of the legal estate in the names of the five historical nominees serves no practical or useful purpose. These nominees (or their estates, insofar as they can be identified) have no active duties to perform, no continuing connection with the association, and no basis upon which they could assert any beneficial entitlement. The situation is precisely the kind for which section 45 of the TO is designed where the legal title is stranded in the names of individuals who are deceased, untraceable, or incapable of acting, and where the ascertained beneficiary has for decades exercised all the rights and responsibilities of ownership.

28.  I am satisfied that a vesting order is both appropriate and necessary in this case.

29.  I am also satisfied that this is an application properly brought on an ex parte basis.

30.  As explained in Re Chu Clansmen’s at §§3.8-3.10 (citing Re Lee Yang, Shiu Chuen Joyce [2021] 4 HKLRD 252), the Court may proceed without notice where the evidence demonstrates that no person is likely to be prejudiced by the relief sought. Here, the evidence establishes that the members of the Unincorporated Society and, following incorporation, the Applicant have at all material times been the beneficiaries of the Property, and given the history and the nature of the arrangement, it is highly unlikely that the registered owners and any personal representatives, if they exist, would object or seek to participate. In these circumstances, proceeding ex parte is appropriate.

Conclusion and Disposition

31.  For the reasons set out above, I make an order in terms of paragraphs 1, 2 and 4 of the Summons.

32.  I thank Ms Kong for her assistance.