WONG SHUK YING AND ANOTHER v. ATTORNEY GENERAL

1987, No. M.P.695

IN THE HIGH COURT OF HONG KONG

HEADNOTE

Where an application is made to the Court for a vesting order in respect of the property of a dissolved company, the Attorney-General is a necessary and proper party to the application and should be named as the defendant accordingly, even if it is not intended that the Crown should assert a claim to the property as bona vacantia.

1987, M.P. No. 695

IN THE HIGH COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS

_____________________________

______________

BETWEEN

__________

JUDGMENT

__________

1. This is an application by the first Plaintiff for a vesting order to which he is, on the evidence, plainly entitled, in respect of the above-mentioned property, formerly owned by a dissolved company, Alpha Estates Ltd. The facts which give rise to the point I have to consider are immaterial. The point concerns the position of the Attorney-General as a respondent to the applications. The correct procedure in this sort of case in England is clearly set out in the Supreme Court Practice, 1985, 102/5/35. This reads as follows:

"Application for a vesting order in relation to the legal interest in property ........... which was vested in a dissolved company as trustee can be made under ........... The Trustee Act ..................... The application is by Originating Summons .................. the sole respondent in the first place being H.M. Attorney-General. The summons is served on the Treasury Solicitor who, after considering the evidence, will indicate by letter whether or not the Crown claims bona vacantia. If that claim is made, then the summons must be amended by adding the Treasury Solicitor as a respondent and will be adjourned into Court when ready for hearing. If there is no bona vacantia claim, the summons proceeds against the Attorney-General alone ................ The explanation of this seemingly technical distinction is that the Treasury Solicitor is by Royal Warrant the proper officer of the Crown to assert the Crown's claim to bona vacantia; the Attorney-General is joined as representing the Crown as the party to be divested of the property if not bona vacantia ........."

Further reference to the point is made at 93/4/17:

"When application is made for a vesting order consequent upon a corporation being dissolved, the Treasury Solicitor need not be made a party unless there is a claim to bona vacantia. It will be sufficient for the plaintiff to produce a letter from the Treasury Solicitor to the effect that there is no claim to bona vacantia. The letter need not be put in evidence."

2. The position in Hong Kong is that there is no such separate official as the Treasury Solicitor. It appears the functions performed in England by the Treasury Solicitor in this connection are performed in Hong Kong by the Attorney-General. The result is that the Attorney-General is involved in cases of this sort in two capacities. First, he is involved as representing the Crown as the person to be divested of the property, whether or not it is asserted on behalf of the Crown that the property is bona vacantia. Secondly, he is involved in a separate capacity if it is sought to assert on behalf of the Crown that the property is bona vacantia. So far as the second matter is concerned, it appeared at an early stage in the present case that the Crown was not intending to assert a claim to the property as bona vacantia. But, and this is the important point, it remains necessary for the Attorney-General to continue as a party in the first capacity to which I have referred. It is incorrect for the Attorney-General to take the view that, no claim for bona vacantia being asserted, there is no reason for him to attend the proceedings at all, and I reject his argument to the contrary. There is, however, no reason whatever why the Attorney-General should be liable for any costs. It is the applicant who seeks the relief for his own benefit and it is the applicant who must bear not only his own costs but also the costs of those required to attend the proceedings. Accordingly, the plaintiffs here must pay the Attorney-General's costs of these proceedings on the trustee basis. In fact, the plaintiffs do not resist the making of such an order. But it has been suggested to me that it would be useful, for the guidance of the profession, for me to deliver this reasoned judgment explaining why I reject the view (contrary to what was submitted on behalf of the Attorney-General) that it was not necessary to join him as a party in the first place.