SHAM WAN KEUNG AND ANOTHER v. LEUNG SUET FAN

1994, No.MP364

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. Placed before me is a copy of the Originating Summons with, what I am told, proposed amendments underlined in red. There is no formal application for these proposed amendments except for that orally made by Mr Chan who acts for the 2nd plaintiff and purports to act for the deceased 1st plaintiff. I am not prepared to entertain such an informal application, particularly when the proposed amendments are not likely to remedy the defects in the proceedings so inexpertly handled. The proposed amendments seek to amend the 1st plaintiff from "Sham Wan Keung, deceased" to "Yeung Mei Chung and Au Yok Chun, the personal representatives of Sham Wan Keung, deceased". The so-called deceased defendant is, nevertheless, left on the record.

2. The Originating Summons is described as ex parte but it specifically names Leung Suet Fan, deceased, as defendant. One of the applicants, the 1st plaintiff, for whom Mr Chan purports to act is also deceased. It is inconceivable that solicitors could possibly act for and for that matter take instructions from a party who is no longer alive, such as the named 1st plaintiff in these proceedings.

3. Mr Sham Wan Keung, the so-called deceased 1st plaintiff, died on 14th September 1986. Letters of administration of his estate were granted to Yeung Mei Chung, his widow and Au Yok Chun on 7th May 1993. Three sons survived Mr Sham.

4. During the life time of the so-called deceased defendant, she made a Declaration of Trust dated 8th September 1978 in favour of her son, the so-called deceased 1st plaintiff, and the 2nd plaintiff, her daughter. By that Declaration of Trust, she declared herself trustee of her said son and daughter in respect to a flat on the 7th floor of 935 King's Road. Upon her death, a Will of the so-called deceased defendant dated 25th April 1961 was found, in which the Hong Kong Bank (Trustee) Limited were the named executors. The Hong Kong Bank (Trustee) Limited renounced on 14th April 1993. Letters of Administration with the Will annexed were being applied for by the 2nd plaintiff and the surviving daughter-in-law, i.e. the widow of the deceased son who had died earlier on 14th September 1986. The so-called deceased defendant, the mother of the late Mr Sham Wan Keung, herself died on 12th May 1992. After the death of the so-called deceased defendant, her other daughter Leung May Chun, the sister of the 2nd plaintiff, also produced a copy of her Will dated 15th March 1992. That Will submitted by the sister of the 2nd plaintiff has been certified by police evidence to be a forgery. Criminal proceedings are underway, and they are expected to be heard in October 1994.

5. The three surviving sons of the so-called deceased 1st plaintiff are said to be the beneficiaries his intestacy. The widow's entitlement seems to have been overlooked. If Letters of Administration with the Will annexed could be obtained, the named executors having renounced, obviously those personal representatives could appoint a trustee under the Declaration of Trust dated 8th September 1978 of the so-called deceased defendant. But with proceedings Probate 7 of 1993 coming on only in October 1994, in which the Will of the so-called deceased defendant in these proceedings dated 25th April 1961 is to be proved in solemn form and the forged Will dated 15th March 1992 produced by the sister of the 2nd plaintiff is sought to be pronounced invalid, there is at present no person vested with the power to make an appointment. The Declaration of Trust does not confer such a power to appoint. It is desirous of effecting an immediate sale of the flat, hence the instant application is made.

6. In its paragraph (h), the alleged forged Will dated 15th March 1992 produced by the sister of the 2nd plaintiff purports to bequeath the same flat to that sister i.e. the 7th floor flat at 935 King's Road, North Point.

7. In these proceedings, it is an affront to first principle that deceased persons are named as parties. It is somewhat unusual for the senior partner of the firm of solicitors acting for the 2nd plaintiff and purporting to act for the so-called deceased 1st plaintiff, to be proposed as the new trustee. The affidavit as to fitness for Mr Bosco Lau, the senior partner of the solicitors involved, has been affirmed by the 2nd plaintiff. As I understand it, an affidavit as to fitness of a proposed trustee will have to come from a substantial member of the society. Little is known of the standing of the 2nd plaintiff who is a party and for whom the firm of Mr Bosco Lau also acts. In the affidavit as to fitness, it is not stated whether he, Mr Bosco Lau, is in anyway interested in the flat on the 7th floor of 935 King's Road. He has certainly an interest through his firm acting for the plaintiffs. The proceedings were doomed to failure from start to finish. It has been of late, not infrequently, the habit of some solicitors to leave the most extraordinary applications in the hands of the court in the hope that matters might be sorted out in the court's own time for some form of an order to be attempted. That is clearly not the way that responsible solicitors are expected to conduct proceedings in a court of law.

8. For the consideration of the solicitors, acting for the 2nd plaintiff and purportedly for the so-called deceased 1st plaintiff, I would suggest that the proper and necessary parties are first, the personal representatives of the estate of the so-called deceased 1st plaintiff, namely his widow Yeung Mei Chung and Au Yok Chun, secondly the present 2nd plaintiff, thirdly a court appointed representative for the estate of the so-called deceased defendant and fourthly probably her daughter Leung May Chun, a claimant of the same property under an alleged forged Will dated 15th March 1992, subject matter in Probate 7 of 1993. It would not be ill-advised for Mr Bosco Lau to leave these or any subsequent proceedings altogether. The affidavit as to fitness, if needed, will have to come from a proper source with the relevant particulars.

9. There would appear to be two possible ways in which the matter could be satisfactorily resolved subject, of course, to these parties' consultation with counsel. First, probably a vesting order may be sought in respect to the flat on the 7th floor, 935 King's Road in the Declaration of Trust. The property in question could probably be caused to be vested in the personal representatives of the estate of the deceased son and the present 2nd plaintiff, the daughter of the so-called deceased defendant. The proper parties would appear to be the personal representatives of the estate of the so-called 1st deceased plaintiff, namely Yeung Mei Chung and Au Yok Chun, the present 2nd plaintiff as well as her sister Leung May Chun, and probably a court appointed representative for the estate of the so-called deceased defendant. The last proposed party may be necessary for barring all claims for or to the same flat in Probate 7 of 1993 otherwise the title may not be cleared.

10. The other possibility would be an appointment of a new trustee in place of the so-called deceased defendant under her Declaration of Trust dated 8th September 1978. The same parties I have suggested would appear to be also the proper and necessary parties for such an application. Obviously, another trustee should best be proposed instead of Mr Bosco Lau and his fitness to act will have to be affirmed to appropriately.

11. In conclusion, the application is dismissed. I would order this judgment to be published not for the guidance of anyone concerned with the law, but it is hoped that sensibly prepared applications, particularly those concerning trusts and title, may be encouraged.