RE CHAN KAM (ALSO SPELT AS KING) WAH

HCMP 1940/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1940 OF 2017

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REASONS FOR DECISION

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1.  The applicant is 59 years old. He was the grandson of Chan Mau Chiu (陳茂昭, “Grandfather”) and the son of Chan Kong Nin (陳光年) also known as Chan Koon Sang (陳觀生) (“Father”). The Father was the only son of the Grandfather. After the Grandfather passed away, by a Succession to Property dated 20 November 1953 and registered under Memorial No N130852 (“1^st Succession”), the Father (named as Chan Koon Sang therein) succeeded to and became the owner of properties known as “LOTS NOS 489 and 981 both IN DEMARCATION DISTRICT NO 44, LOTS NOS 514, 564 and 560 all IN DEMARCATION DISTRICT NO 45, LOTS NOS 114 and 489 both IN DEMARCATION DISTRICT NO 74 and LOT NO 532 IN DEMARCATION DISTRICT NO 75, North, New Territories, Hong Kong” (“Properties”). According to the 1^st Succession, the Properties were “subject to a mortgage for $350.00 vide memorial No 27818 on 8.10.14”.

2.  The applicant claimed the Father passed away soon after the applicant’s mother Mok Sun Kiu (莫新嬌, “Mok”) fell pregnant with him in late 1957. The applicant was born on 17 July 1958. The applicant’s birth certificate gave the Father’s name as Chan Kong Nin (陳光年) and Mok’s name as Mok Sun Kiu (莫新嬌). The applicant claimed he understood from Mok that the Father Chan Kong Nin (陳光年) used the alias Chan Koon Sang (陳觀生) during his lifetime.

3.  Since the Father was the owner of the Properties at the time of his death, Mok applied to the District Officer for approval for the applicant (who was then 2 years old) to be appointed as successor to the Father in respect of the Properties. The applicant had a sister called Chan Wan Tai born out of Mok’s previous marriage (such that Chan Wai Tai was the Father’s step-daughter), but he had no brother. Chan Wai Tai being the Father’s step-daughter was not entitled to share in the Properties as the Father’s properties under the 1^st Succession. According to a Succession dated 15 April 1961 registered at the Land Registry by memorial No N143862 (“2^nd Succession”), the applicant succeeded to and became the owner of the Properties with Mok “as trustee of Luk Keng Village”.  The 2^nd Succession no longer showed any encumbrance over the Properties.

4.  Mok was named in the 2^nd Succession as “Chan Mok San Kiu” which name was slightly different from that found in the applicant’s birth certificate: (a) it was common practice for a married woman to add the surname of her husband to her own name so the word “Chan” was included, and (b) the same Chinese character “新” was spelt as Sun in the applicant’s birth certificate and as San in the 2^nd Succession.

5.  The applicant was named in the 2^nd Succession as “Chan King Wah” which name was slightly different from that found in his birth certificate and Hong Kong identity card in that the Chinese character “錦” was spelt as King in the 2^nd Succession and as Kam in his birth certificate and Hong Kong identity card. The applicant explained that Mok spoke the Hakka dialect, so her pronunciation of the Chinese character “錦” was quite unlike the corresponding pronunciation in Cantonese, which the applicant thought might have accounted for the different English transliterations.

6.  Mok passed away in Scotland on 8 August 1995. According to the applicant, apart from the Properties, Mok did not hold any beneficial interest in other properties during her lifetime, so no grant of probate or letters of administration was issued in respect of her estate in Hong Kong or elsewhere.

7.  After Mok passed away, the applicant approached his solicitors, and was advised to apply to court for a vesting order. On 13 September 2017, the applicant issued an ex parte originating summons for an order that Mok be removed as trustees of the Properties, and that the entire legal and beneficial estate and interest of and in the Properties do vest in the applicant absolutely (“OS”).

8.  On 13 September 2017, the applicant filed his own affirmation in support of the OS and also the affirmation of Chan Tim Yau (“Chan”). The applicant by his affirmation verified the above matters.

9.  Chan is now 80 years old and an indigenous villager of Luk Keng Tsuen. Chan had lived at No 26 Luk Keng Tsuen since birth, and his place of abode was adjacent to the No 27 Luk Keng Tsuen where the Father lived. Chan knew the Father was also an indigenous villager who used to work in Sandakan, Malaysia for many years until he contracted tuberculosis and returned to his home village in Luk Keng Tsuen for rehabilitation. At that time Chan was 15 years old and knew the Father personally as they were neighbours. Chan was aware the Father’s name given to him by the Grandfather was Chan Kong Nin (陳光年), but he adopted his alias Chan Koon Sang (陳觀生) in Malaysia, and the villagers were aware that the Father used both names interchangeably. Chan also knew the Father married Mok (who was a divorcee with a daughter Chan Wai Tai from her previous marriage) in early 1955, that Mok fell pregnant before the Father passed away, and that the applicant was born on 17 July 1958.

10.  Probate search was done, but did not reveal any grant of probate or letters of administration in the names of Chan Mok San Kiu, Mok San Kiu, Mok Sun Kiu, 陳莫新嬌 and 莫新嬌.

11.  The applicant made the application on the basis that he is sui juris and entitled to the Properties by virtue of the 2^nd Succession. On 13 October 2017, the applicant filed a summons for leave to amend the name of the applicant from Chan Kam Wah (陳錦華) to “Chan Kam (also spelt as King) Wah (陳錦華)” in the OS, and for leave to the applicant to file an amended OS within 14 days (“Summons”).

12.  I am satisfied in the circumstances that there is no one to be served with the OS and that it will be in order for the applicant to proceed on ex parte basis.

13.  I therefore made the following orders:

(a) there be an order in terms of the Summons;

(b) Chan Mok San Kiu, deceased be removed as trustee of the applicant in respect of the Properties; and

(c) the legal estate and interest of the applicant being the entire legal estate and interest of and in the Properties do vest in the applicant absolutely.

14.  I made no order as to costs in respect of the OS and the Summons.