RE PACIFIC GOOD INVESTMENT LTD

HCMP 606/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 606 OF 2014

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J U D G M E N T

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The application

1. By an ex parte Originating Summons dated 14 March 2014, the applicant applies for an order for the vesting of all the legal or other estate in the Remaining Interest, namely, a ⅔ share in Lots Nos 774, 775 and 776 in DD 132 (“the 3 Lots”), in the applicant, insofar as such estate may still be vested in the former trustee.

2. This ex parte Originating Summons application is closely related to the application in HCMP 366/2014 (“HCMP 366”) which concerned, inter alia, the other ⅓ share in the 3 Lots (which was referred to in HCMP 366 as “the 3^rd Interest”). On 5 March 2014, I heard the applicant’s application in HCMP 366, and ordered, inter alia, the vesting of the 3^rd Interest in the applicant.

3. This application and HCMP 366 arise out of the same factual background.

Background to the Application

4. The applicant is the owner of the entire interests in, inter alia, the 3 Lots, which are situated in Siu Tong, Tuen Mun.

5. Title of the 3 Lots devolved through the Succession to Tse Kwok Yiu’s Property dated 27 July 1940.  Under the Succession, the 3 Lots were succeeded to by Tse Wai Yau, Tse Tung Yau and Tse Tso Yau.  On the face of the Succession, it appears to suggest that it was only Tse Tso Yau’s ⅓ share which was held by Tse Tang Shi as trustee.  That ⅓ share is the 3^rd Interest which formed one of the subject matters in HCMP 366; whereas the remaining ⅔ share owned by Tse Wai Yau and Tse Tung Yau forms the Remaining Interest being the subject matter in the present proceedings.

6. There has since been some “ambiguity” arisen as to whether Tse Tang Shi was acting as trustee for not only Tse Tso Yau, but also for Tse Wai Yau and Tse Tung Yau. This has arisen from a letter dated 26 September 2013 from the Tuen Mun District Office, which suggested that the 3 Lots were under the Succession held by “Tse Tso Yau, Tse Wai Yau and Tse Tung Yau” all with Tse Tang Shi as trustee.

7. In the devolution of the 3 Lots, there is no document showing that the legal or other estate in the ⅔ share in the 3 Lots which, at the time of the Succession to Tse Tung Yau’s Property and the Division of Property, may have remained vested in the former trustee Tse Tang Shi, have been specifically vested or re-vested back in Tse Wai Yau and Tse Tung Yau.

8. However, from the evidence filed by the applicant in these proceedings and in HCMP 366, I am satisfied that so far as Tse Wai Yau’s ⅓  share in the 3 Lots is concerned:-

(1)   Tse Wai Yau was the sole beneficiary of the same.  Tse Tang Shi could at most be his trustee in holding the same for him.

(2)   Tse Wai Yau did agree to the division of property (with the passing of his ⅓ share in the 3 Lots) as effected and registered by the Division of Property dated 27 April 1961.

(3)   Apparently, Tse Wai Yau had reached majority by 1960.

9. Turning to Tse Tung Yau’s ⅓ share in the 3 Lots, from the evidence filed in these proceedings and in HCMP 366, I am satisfied that:

(1)   Tse Tung Yau was the sole beneficiary of the same and Tse Tang Shi could at most be his trustee in holding the same for him.

(2)   As confirmed by the Tuen Mun District Office, Tse Tung Yau had died in 1956 (before Tse Tang Shi’s trusteeship for him was cancelled).

(3)   Tse Tang Shi’s trusteeship for him was cancelled in 1960.

(4)   By the time Tse Tung Yau’s ⅓ share in the 3 Lots was succeeded to by his son Tse Kam Wah with Tse Tso Yau as trustee (by way of the Succession to Tse Tung Yau’s Property dated 12 April 1961), the trusteeship of Tse Tang Shi for Tse Tung Yau had already been cancelled.

(5)   In the Division of Property, Tse Kam Wah with Tse Tso Yau acting as trustee became the owner of the entire interest in the 3 Lots, and Tse Tso Yau did sign on the Division of Property in the capacity as trustee for Tse Kam Wah.

(6)   After Tse Kam Wah had reached majority, Tse Tso Yau’s trusteeship for him was also cancelled and the 3 Lots were vested in Tse Kam Wah by way of the vesting assignment in 1981.  Later on, he sold the 3 Lots to the applicant’s predecessor in title.

10. As held in paragraph 12(3) and (5) of my judgment dated 5 March 2014 in HCMP 366, I was satisfied that Tse Tang Shi has died some 20‑odd years ago.  No grant of probate or letters of administration in respect of her estate has been made.

Vesting Order

11. By reason of the matters set out in paragraphs 8 to 10 above, I agree that a vesting order ought to be made to vest in the current owner, namely the applicant, whatever interest as may still be held by Tse Tang Shi in respect of the Remaining Interest.

Application made Ex Parte

12. Further, for the reasons stated in paragraph 14 of my judgment in HCMP 366, the application for the vesting order can be made by way of ex parte Originating Summons.

Conclusion

13. Accordingly, I make an order in terms of paragraph 1 of the ex parte Originating Summons herein, with no order as to the costs of the application.