RE NG SHU WAN also known as NG SHU WAN

DCMP 1775/2022

[2022] HKDC 963

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 1775 OF 2022

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REASONS FOR JUDGMENT

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1.  By an ex parte originating summons dated 24 May 2022, the applicant applies pursuant to section 45(e) of the Trustee Ordinance (Cap 29) for the following relief:-

“All the estate, right, title and interest of Lee Ho (李好) also known as Li Ho, deceased of and in all those pieces or parcels of ground registered in the Land Registry as The Remaining Portion of Lot No. 505 in Demarcation District No.1, Lamma Island, Lot Nos. 513, 531 and 609 all in Demarcation District No.1, Lamma Island and Lot Nos. 51, 106 and 128 all in Demarcation District No.2, Lamma Island, be vested in the Applicant, the said Ng Shu Wan (吳樹允) also known as Ng Shu Wan (吳樹穩)”

2.  I consider that it is appropriate for the application to be dealt with on paper. I therefore directed that the hearing before me on 2 September 2022 to be vacated. These are the reasons for my decision.

Background facts

3.  The relevant facts are set out in the applicant’s affirmation dated 24 May 2022. They may be briefly stated as follows.

4.  The late Madam Li Ho (李好) is the mother of the applicant (the “Mother”).

5.  By a Succession to Property dated 4 November 1959, Lot Nos 505, 513, 531, 543 and 609 all in Demarcation District No 1, Lamma Island, and Lot Nos 51, 106 and 128 all in Demarcation District No 2 were vested in the Mother (identified as Li Ho) as trustee for the sole benefit of the applicant (identified as 吳樹穩, then a minor).

6.  Subsequently:-

(1)  In respect of Lot 505 in DD 1, it was carved into Section A and the Remaining Portion. Section A was then surrendered to the Queen in around 1981;

(2)  Lot 543 in DD 1 was sold to unrelated third parties in May 1994.

7.  After the events described in paragraph 6 above, the Mother was the trustee of the remaining lots (all being the subject of the present application, the “Subject Lots”) in favour of the applicant.

8.  The Mother passed away on 23 March 1999 (the death certificate stated her name to be Lee Ho). The applicant has conducted searches but it would appear that no grant of representation to the Mother’s estate was made.

9.  The applicant was born in 1949 and has long attained majority.

10.  The applicant further explains some of the discrepancies in his name and that of the Mother as follows:-

(1)  For the Mother’s name (Lee Ho as stated in the death certificate vs Li Ho as stated in the Succession to Property), there is a statutory declaration made by the Mother on 1 July 1994 and registered at the Land Registry explaining the discrepancy;

(2)  For the applicant’s name (吳樹穩 as stated in the Succession to Property vs 吳樹允 as stated in his HKID card), I note that in paragraph 3 of the Mother’s statutory declaration described above, she refers to the applicant as 吳樹允 when describing the effect of the Succession to Property. The words 穩 and 允bear very similar pronunciations in Cantonese. I accept the applicant’s explanation that both names refer to him.

11.  Based on the above, the applicant therefore asks for a vesting order in relation to the Subject Lots in his favour.

Analysis

12.  Section 45(e) of the Trustee Ordinance provides as follows:-

“In any of the following cases, namely-

(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…”

13.  I have considered the principles stated in Re Ho Siu Kay [2021] HKCFI 2877. It is clear that the court may vest the property in favour of the beneficiary directly instead of appointing a new trustee: Re Lee Yang, Shiu Chuen Joyce [2021] HKCFI 2468 at §16.

14.  In my view this is a clear case where a vesting should be made in favour of the applicant. I therefore make an order in terms of the ex parte originating summons with no order as to costs.