RE CHEUNG KWAI YIU

HCMP 1568/2025

[2025] HKCFI 5968

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1568 OF 2025

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DECISION

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Introduction and Background

1.  This is an application by Originating Summons dated 11 September 2025 (“OS”) by the Applicant for a vesting order under section 45 of the Trustee Ordinance, Cap. 29 (“the Ordinance”) in respect of Lot No. 1763 (“Lot 1763”) and Lot No. 1774 (“Lot 1774”) in Demarcation District No.121.

2.  According to the Applicant, who has filed an affirmation in support of the OS:

(1)  Cheung Chan Shi is the wife of Cheung Yau Hing;

(2)  Cheung Yau Hing is the husband of Cheung Chan Shi;

(3)  Cheung Sim On is the son of Cheung Chan Shi and Cheung Yau Hing, and the father of the Applicant;

(4)  Wong Lai is the wife of Cheung Sim On and the mother of the Applicant;

(5)  Cheung For Po is the son of Cheung Sim On and Wong Lai, and the brother of the Applicant;

(6)  By a Succession to Property dated 12 September 1938 (“Succession to Property”), Lot 1763, Lot 1774 and Lot 121 were vested in Cheung Chan Shi as trustee for her son Cheung Sim On;

(7)  Cheung Chan Shi died in early 1940s but the Applicant was not able to find her death certificate and no records could be obtained despite enquiries with the Immigration Department;

(8)  The Applicant has however produced photos showing the bone ash niche and memorial plaque of Cheung Chan Shi;

(9)  To the best of his knowledge and belief, no probate or letters of administration had ever been applied for or granted in respect of the estate of Cheung Chan Shi.  Probate search had been conducted which revealed two records of probate or letters of administration under the names of Chan Sui King and Chan Yuet Kiu with aliases of Cheung Chan Shi.  However, the Applicant has never heard of Chan Sui King and Chan Yuet Kiu nor was never told that Cheung Chan Shi was known by these names.  Neither were they names stated in the Succession to Property;

(10)  On 8 October 1979, Cheung Sim On died;

(11)  On 6 February 1990, Letters of Administration for the estate of Cheung Sim On was granted to Wong Lai.  In the Lands and Buildings under the Schedule of Property, it included Lot 1763 and Lot 1774 “as beneficiary created under a trust by Cheung Chan Shi”;

(12)  On 6 June 1991, Wong Lai, the Applicant and Cheung For Po entered into a Deed of Family Arrangement whereby it was agreed various lots including Lot 1763 and Lot 1774 would be transferred to the Applicant as sole beneficiary;

(13)  A vesting assignment was entered into between the Applicant and Wong Lai whereby lots including Lot 1763 and Lot 1774 were assigned to the Applicant;

(14)  On 22 June 2015, Wong Lai passed away;

(15)  In around 2023, the Applicant made an application for redevelopment of Lot 1763.  However, on 16 January 2025, the Lands Development raised the requisition that as Cheung Chan Shi was appointed as trustee of Cheung Sim On but the trusteeship of Cheung Chan Shi has not been removed or cancelled, it follows that the legal estate of the Lot had not been vested in Cheung Sim On and a vesting order from the court was required.

Discussion and Disposition

3.  Section 45(e) of the Ordinance provides, “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… 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 …”.

4.  Once the preconditions set out in the statute have been satisfied, the Court has a discretion to vest the property directly in the beneficiary: see Re Lee Yang, Shiu Chuen Joyce [2021] 4 HKLRD 252 at §16 per DHCJ Paul Lam SC.

5.  The court may make a vesting order in an ex parte application if there is clear evidence justifying making one.  However, the Court must proceed cautiously because it is being asked to make a final, as opposed to interlocutory order which, in practical terms, could be worth millions of dollars without hearing any opposing party, or without anyone challenging the applicant for failing to make full and frank disclosure.  The court must examine the evidence presented by the applicant critically: see Re Man Kin as the administrator of the estate of Man Pak Chun (unrep) HCMP 2565/2014, 18 April 2016, per Chow J (as he then was) at §§11-12.

6.  Having considered the evidence critically before me and the submissions of Miss Wong, counsel for the Applicant, applying the above legal principles, I am satisfied that Cheung Chan Shi who was appointed as trustee under the Succession to Property has passed away, there was no personal representatives of the deceased and that this is a proper case for this court to exercise its discretion to make a vesting order that all rights, title and interest in Lot 1763 and Lot 1774 do vest in the Applicant free and discharged from all trust created under the Succession to Property.

7.  I make no order as to costs.

8.  Accordingly, I will make an order in terms of the Draft Order submitted to me (as amended by me).