XCHRX YIP YAT TIM v. SECRETARY FOR JUSTICE OF THE HKSAR

HCMP 3585/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3585 OF 2000

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J U D G M E N T

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1. This is an application by the Plaintiff for a vesting order. The Defendant is the Secretary for Justice of the Hong Kong Special Administrative Region and the reason for the identity of the Defendant will appear shortly.

2. The evidence of the Plaintiff discloses that in 1968, the Plaintiff's late husband, Mr Yu Koon Wan had entered into what was called a "Temporary Agreement" for the purchase of a car parking space in the development in which they were then living. This car parking space was one equal undivided 1496th part or share of and in Kowloon Inland Lot No.8733 known as Car Parking Space No.77 in the Basement of Kingsland Villa, No.19 Man Fuk Road, Kowloon.

3. There has been exhibited a copy of the Temporary Agreement which shows that the vendor's name was Hung Hsing Construction Co. Ltd and that the agreed purchase price was $2,000.00. Hung Hsing Construction Co. Ltd was the builder of the development. The developer was apparently a company called Tak Wah Co. Ltd and this name appears on the Temporary Agreement with Hung Hsing Construction Co. Ltd said to be "acting on behalf of Tak Wah Co. Ltd".

4. Although the document was called a Temporary Agreement, it would appear that there was no formal agreement for sale and purchase, and the evidence has also disclosed that shortly thereafter in 1968, Mr Yu paid the entire purchase price for the car parking space, and this is evidenced by a receipt signed by the manager of Hung Hsing Construction Co. Ltd which was also stamped.

5. The evidence of the Plaintiff shows that thereafter Mr Yu used the car parking space as his own and that there was no formal assignment.

6. The fact that Hung Hsing was acting as agent for Tak Wah Co. Ltd has since been confirmed by a letter from that company, albeit under a new name, which has been exhibited to the Plaintiff's affirmation.

7. In 1998, Mr Yu died and on 8 February 1999, letters of administration of his estate were granted to the Plaintiff, his widow. In the course of administration of his estate, the widow has discovered that there has not been an assignment of the car parking space to the deceased. Accordingly, she wanted to get in the legal estate. Tak Wah Co. Ltd, however, had been dissolved in 1973. Accordingly, the present proceedings have been taken out against the Secretary for Justice.

8. In view of the matters set out above, in particular, in view of the disclosure of the Temporary Agreement, the receipt showing the payment of the entire purchase price and the acknowledgement by Hung Hsing that it was acting as agent for Tak Wah, it is clear to me that the Plaintiff as administratrix of Mr Yu is entitled to an assignment of the legal estate to her as such administratrix. There has been no evidence to the contrary to in any way challenge the matters set out above.

9. Accordingly, I am satisfied that this is a suitable case for a vesting order and I would order that all the estate and interest of the property being the share and the use of the car parking space referred to above do vest in the estate of Yu Koon Wan, deceased.

10. As far as the costs of the application are concerned, I have been referred to a decision of Godfrey J (as he then was) in Wong Shuk Ying & Anor. v. The Attorney General [1987] 2 HKC 457.

11. In this decision, Godfrey J referred to the English practice set out in the Supreme Court Practice and applied that practice to the situation in Hong Kong. The difference between the practice in England and that in Hong Kong is that in England, there is a difference in the functions of the Attorney General and the Treasury Solicitor. The position in Hong Kong is that there is no separate official as the Treasury Solicitor, and it would appear that the functions performed in England by the Treasury Solicitor are performed in Hong Kong also by the Attorney General.

12. As Godfrey J noted in that case, the result is that the Attorney General is involved in cases of that sort in two capacities. First, as representing Government as the person to be divested of the property, and secondly, possibly, for the assertion on behalf of Government that the property is bona vacantia. Godfrey J held that even if, as in this case, the Secretary for Justice does not assert that the property is bona vacantia, nevertheless, it is still necessary for the Secretary for Justice to appear as the person to be divested of the property and that therefore, in any event, the Secretary for Justice must appear in that capacity.

13. In relation to the aspect of costs, Godfrey J held in that case that the plaintiff being the applicant who seeks relief for his own benefit must pay the Secretary for Justice's costs on the trustee basis. Mr Tsui who appears for the Plaintiff today has not sought to challenge the validity of Godfrey J's decision in Wong Shuk Ying. Accordingly, I would order, as far as the costs of the application are concerned, that the Plaintiff pay the Secretary for Justice's costs on a trustee basis.