RE LAM PAK HING

HCMP 573/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 573 OF 2013

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J U D G M E N T

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1.  This application first came before me on 9 April 2013. I questioned whether Lam Pak Hing (the Applicant), was in a position to apply for the vesting order also on behalf of Lam Dan Foon and Lam Simon (the Successors); as well as whether those acting for Lam Pak Hing had instruction to also act for them. I adjourned the application sine dine with liberty to restore.

2.  Now the queries have been sorted out by further affirmations; and all necessary authorisation and confirmation obtained.  The application was thus restored.

3.  By a New Grant in 1968, the captioned property was granted to minors, namely, Lam Pak Hing, Lam Wong Hing and Lam Koon Sang, as tenants in common in equal shares and their mother, Choi Sin, as their trustee.

4.  In 1988, the mother as trustee vested the 1/3 share of interest in the Property (as co-owner) to Lam Koon Sang.

5.  By way of succession in 1996, Lam Wong Hing’s 1/3 share of interest in the Property (as co-owner) was succeeded by Lam Dan Foon and Lam Simon.

6.  Since then, the Property was held by Lam Koon Sang (1/3), Lam Pak Hing (1/3) and Lam Dan Foon as well as Lam Simon (together 1/3 or each 1/6) as tenants in common. But the interest of the latter 2/3 share of interest in the Property (as co-owner) was nevertheless held under the trusteeship of their mother Choi Sin.

7.  Choi Sin passed away in Canada in 2009.  There has been no personal representative of Choi Sin as the trustee.  I also take the view that the purpose of their mother’s trusteeship has already been served well by now.

8.  I am satisfied that this application may proceed ex parte.

9.  Pursuant to section 45(e) of the Trustee Ordinance:

“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 (in this Ordinance called a vesting 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 ……

[Proviso inapplicable to the present case]”

10.  In the circumstances, I am satisfied that a vesting order in terms of the originating summons should be made with no order as to costs.