RE WONG SHU SUN

HCMP 1626/2024

[2024] HKCFI 2617

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1626 OF 2024

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REASONS FOR DECISION

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1.  By an ex parte originating summons of 28th August 2024, the Applicant sought an order that the entire legal and beneficial interest in a piece of land registered in the Land Registry as Lot No.308 in Demarcation District No.385, Tuen Mun, New Territories, together with the messuages, erections and buildings thereon (“the Property”) do vest in him absolutely, and that Wong Kwai (黃貴) be removed as trustee of the Property.

2.  At the hearing, I granted an order in terms of paragraphs 1, 2 and 4 of the originating summons, for the following reasons.

3.  The relevant facts are as follows.

3.1 On 25th October 1976, the Property was transferred, by an assignment executed in a form pursuant to the then s.23 of the New Territories Ordinance (Cap.97) to the Applicant “with Wong Kwai as trustee”.

3.2 The Applicant was a minor at the time. The assignment was therefore presumably executed pursuant to the provisions of s.18 of the New Territories Ordinance, which at the time provided as follows.

“Whenever any land is vested in a minor, it shall be lawful for the Land Officer to appoint some fit person to be a trustee thereof for such minor during his minority and to remove any such trustee and to appoint any new trustee. Every such appointment shall be registered by the Land Officer in the appropriate New Territories Land Office, and upon registration the land the subject of the trust shall vest in the registered trustee for all the estate and interest of the minor therein, and upon registration of the removal of any trustee the land shall divest from the trustee so removed and vest in the continuing trustee or any newly registered trustee as the case may be. The Land Officer before registering a trustee may require him to give security in such manner and to such amount as he may think fit for the due execution of the trust. With the consent of the Land Officer a trustee may buy, sell, mortgage, lease or otherwise deal with or dispose of any property to the like extent as if he were the beneficial owner thereof, anything in the Trustee Ordinance, to the contrary notwithstanding.”

3.3 Wong Kwai died on 15th August 1992 without having vested the legal interest in the Property in the Applicant. The Lands Registry records therefore still show Wong Kwai as the “trustee”, and the Applicant as “beneficiary”, of the property.

3.4 According to the Applicant’s understanding and search at the Probate Registry, no grant of probate or letters of administration were issued in respect of the estate of Wong Kwai.

4.  The Applicant therefore sought a vesting order under s.45 of the Trustee Ordinance (Cap.29), which provides in part as follows:

“In any of the following cases, namely –

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(e) where there is no personal representative of a deceased trustee who was entitled to or possessed of any interest in land, or where it is uncertain who is the personal representative of a deceased trustee who was entitled to or possessed of any interest in land;

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the court may make an 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, or releasing or disposing of the contingent right to such person as the court may direct…”

5.  In the circumstances of the present case, I was satisfied that it would be appropriate to make an order under s.45(e) of the Trustee Ordinance.