SHUM WAH MING v. THE ESTATE OF CHEN KING NGO, DECEASED AND ANOTHER

HCMP 213/1995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 213 OF 1995

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AND

HCAP 2/1995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE JURISDICTION NO. 2 OF 1995

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[Heard together]

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J U D G M E N T

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1. In these Miscellaneous Proceedings, the Plaintiff is a nephew of the deceased and he also claims to be an adopted son of the deceased. The 2nd Defendant is the daughter of the deceased. The Miscellaneous Proceedings are about an interest in a property known as Flat F on the 12th Floor of Winning Heights, No. 7 Fu Wah Street, Tsuen Wan, New Territories, Hong Kong, of which the deceased is the registered owner.

2. The evidence disclosed in the affirmations (for which there is an order that they stand as evidence in chief) is that from 1969 to 1975, the Plaintiff worked in Nigeria at much higher wages than he had previously obtained in Hong Kong. There is evidence from the employer and from other persons who knew the Plaintiff at the time that his salary was remitted to the deceased's account in Hong Kong. According to the Plaintiff, the deceased suggested to him that she should acquire on his behalf property with the money which she had invested for him so as to avoid his having to rent property and in preparation for his marriage.

3. The deceased herself was earning relatively little money at the time and indeed she ceased working altogether in 1972.

4. The property was completed in October 1973 and an amount of about $60,000 including solicitors' and other charges was paid for it, free of mortgage.

5. The analysis of the earnings of the Plaintiff at the time showed that from 1969 when he went to work in Nigeria until 1973 when the property was completed, the Plaintiff had given the deceased something like $120,000. Even on the evidence of the bank remittances alone, excluding the overtime pay which he brought back from Nigeria personally, the evidence of the bank remittances showed that an amount as large as $54,000 had been remitted, and this also excludes the amount for which there is no record.

6. It is clear, therefore, that the deceased herself would not have funds to acquire the property and there is now no conflicting evidence as a result of the compromise to which the parties have arrived.

7. In 1975, the Plaintiff returned from Nigeria and lived at the property with the deceased and some other persons until 1983, when the Plaintiff moved out due to incompatibility between the deceased and his wife. However, the evidence appears to be that the Plaintiff had remained on very close terms with the deceased.

8. I am particularly impressed with some of the evidence provided by a granddaughter of the deceased who was living at the time with the deceased and therefore would have been most closely aware of the deceased's situation.

9. The parties having arrived at a compromise, there has been no cross-examination by the 2nd Defendant on the evidence put in on behalf of the Plaintiff.

10. As far as the order is concerned, there was no will left by the deceased and no letters of administration have yet been granted and therefore, it would appear to me that Section 45(e) of the Trustee Ordinance applies. In other words, where there is no personal representative of a deceased trustee who was possessed of interest in land, the court may make an order called a vesting order, vesting the land in any such person, in any such manner, and for any such estate or interest as the court may direct.

11. It would appear from the evidence that the deceased held the property on a resulting trust for the Plaintiff, there being no presumption of advancement from a nephew or even an adopted child to his parent, and the evidence that has been put in, in fact, all shows that the deceased was investing this money and acquiring this property for the benefit of the Plaintiff.

12. Accordingly, I would grant the following declarations and orders:

1) that Chen King Ngo, deceased held the property upon a resulting trust in favour of the Plaintiff;

2) that the Plaintiff is entitled to all the estate, rights, title, benefit and interest of and in the property as the sole beneficial owner thereof;

3) that the property is hereby pursuant to Section 45 of the Trustee Ordinance vested in the Plaintiff for all the estate, rights, title, benefit and interest therein.

13. I make no order as to para. 4 of the Originating Summons and there shall be no order as to the costs of this action. The orders in the Probate Action are:-

1) That leave be granted to the Defendant in the probate action to withdraw his Caveat No. 478 of 1994 dated 1 October 1994.

2) That leave be granted to the Plaintiff in the probate action to withdraw the Warning to Caveator dated 18 November 1994.

3) That leave be granted to the Defendant in the probate action to withdraw the Appearance to Warning to Caveator dated 29 November 1994.

4) That the Plaintiff in the probate action be at liberty to proceed with the application for Letters of Administration in respect of the Estate of Chen King Ngo, deceased.

5) That leave be granted to the Plaintiff in the probate action to discontinue the action.

6) That there shall be no order as to costs of the probate action.