RE LI KAM WAH AND OTHERS

HCMP 2194/2018

[2019] HKCFI 990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2194 OF 2018

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D E C I S I O N

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Introduction

1.  The originating summons herein was issued on ex-parte basis under s 45 of the Trustee Ordinance, Cap 29, to remove the allegedly deceased trustee of various lots in DD 83 and DD 85 in the New Territories, and for vesting orders in relation to the legal and beneficial estate and interest of those lots.

2.  The originating summons was initially issued by the 1^st-3^rd applicants, respectively referred to as A1, A2, and A3, and later the 4^th applicant (A4) was added as an applicant in her personal capacity. 

3.  The relevant section which the applicants rely on is s 45(e) of the Trustee Ordinance, namely the court may make a “vesting order” (as defined in the Ordinance) 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 possess of any interest in land.

The Land Registry records

4.  According to a Memorial No 148689 of the “Succession to Property” dated 28 November 1962 registered in the Land Office, there were 4 successors registered in respect of :

(i)   11 lots in DD 83 and 7 lots in DD 85 (“1^st Group”);

(ii)   ¼ undivided share in another 24 lots, and 7 lots in Lau Shui Heung House, all of which are in DD 85 (“2^nd Group”).

5.  The 4 successors were:

(i)   Li Kwan Yau

(ii)   A2 - Li Tseung Fat (then aged 19)

(iii)   A3 - Li Pun Fuk (then aged 16 and now deceased and is being represented by A4 as executrix)

(iv)   A1 - Li Kam Wah (then aged 6)

6.  As seen in Memorial No 148689, Madam Leung Kiu, the mother of the A1-A3, was registered as trustee for them at the time as they were minors.

7.  By a New Grant No 9822 dated 8 November 1966, Lot 220A in DD 85 was surrendered and exchanged with Lot 733 in DD 85 to the grantees (“Lot 733”), being Li Pun Fuk/A3 (minor), Li Kam Wah/A1 (minor), Li Kwai Yau and Li Tsueng Fat/A2 as tenants in common.  Madam Leung Kiu was registered as the trustee of A1 and A3.

8.  On 23 April 1981, a further Memorial No 201530 of “Removal of Trustee” was registered.  As seen in Memorial 201530, Madam Leung Kiu was removed as trustee for the 3 applicants in respect of the lots in the 1^st Group but not the 2^nd Group.

9.  Madam Leung Kiu passed away on 13 July 2000.

10.  Li Pun Fuk passed away on 31 March 2017, and probate was granted to his wife A4.

11.  The applicants are now desirous of selling the 2^nd Group of properties and also Lot 733 and therefore seek the following orders:

(i)   The 2^nd Group of properties be vested in A1, A2, and A3 as tenants in common in equal shares;

(ii)   Lot 733 be vested in A1 and A3 as tenants in common in equal shares.

Further evidence

12.  At the hearing on 20 February 2019, this Court raised queries about the missing land search records of certain lots, a Deed of Family Arrangement registered in the Land Registry against the concerned lots, and also the Schedule of Property attached to the grant of probate of A3’s estate did not set out all the concerned lots.  As a result, the applicants were granted leave to file a supplemental affirmation to respond to this Court’s queries.

13.  Thereafter, the solicitor for the applicants filed an affirmation to explain:

(i)   It was impossible to perform land search in respect of 5 lots in DD 85 and it was suspected that those lots might have been resumed by the government sometime ago.  This was to explain why land search records for those 5 lots were missing from the earlier affirmation filed by A1 and the applicants are prepared to exclude these 5 lots in their present application;

(ii)   the Deed of Family Arrangement dated 12 January 2009 registered in the Land Registry by Memorial No 09030200146 has nothing to do with the present application;

(iii)   A4 undertakes to file a corrective affidavit in the Probate Registry verifying the additional schedule of assets and liabilities to include the previously omitted lots.

Section 45 (e)

14.  A1 had produced a birth certificate to show that his father was named Li Hung and his mother was named Madam Leung Yung Kiu (梁容嬌).  According to A1, Madam Leung Kiu was the same person as Madam Leung Yung Kiu.

15.  According to A1, the applicants’ mother did not personally hold any assets of which she had beneficial interest during her lifetime, whether in Hong Kong or elsewhere.  As such, no grant of probate or letters of administration had been applied for, or issued, in respect of the estate of his mother.  The applicants’ solicitors had also conducted a search in the Probate Registry in respect of the names of “Leung Kiu”, “Leung Mui”, (梁嬌), (梁妹), and also “Leung Yung Kiu” and (梁容嬌) and their search confirmed that no grant of letters of administration nor probate had even been issued in respect of any person by such name/s who died on 13 July 2000.

16.  Having considered all the evidence, I am satisfied that in the circumstances that there is no one to be served with the originating summons and that the application may proceed on ex parte and that vesting orders sought should be granted.  I make no order as to costs.