HCMP 1107/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 1107 OF 2009
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IN THE MATTER of an Agreement for Sale and Purchase dated 12 November 2007 (“1H Agreement ”) and made between Wan Lin (deceased) (who died on 13 January 2008 and Hon Kam Chuen is the appointed sole executor of the Will of Wan Lin (deceased)) as the vendor and Talent Play Limited as the purchaser (pursuant to a Nomination dated 27 April 2009 from Universal Sight Limited, the initial purchaser in the 1H Agreement, to Hon Kam Chuen, the sole executor of the Will of Wan Lin) for the sale and purchase of the property known as All that one equal undivided 137th part or share of and in the Remaining Portion of Inland Lot No. 953 (Flat H on the First Floor and Flat Roof of Kin Yu Building, No. 46 Belcher’s Street, Hong Kong) (“1H Property ”)
and
IN THE MATTER of an Agreement for Sale and Purchase dated 12 November 2007 (“2E Agreement ”) and made between Wan Lin (deceased) (who died on 13 January 2008 and Hon Kam Chuen is the appointed sole executor of the Will of Wan Lin (deceased)) as the vendor and Talent Play Limited as the purchaser (pursuant to a Nomination dated 28 April 2009 from Universal Sight Limited, the initial purchaser in the 2E Agreement, to Hon Kam Chuen, the sole executor of the Will of Wan Lin) for the sale and purchase of the property known as All that one equal undivided 137th part or share of and in the Remaining Portion of Inland Lot No. 953 (Flat E on the Second Floor of Kin Yu Building, No. 46 Belcher’s Street, Hong Kong) (“2E Property ”)
and
IN THE MATTER of an Agreement for Sale and Purchase dated 12 November 2007 (“1F Agreement ”) and made between Peter Hon Sheung Tin, the administrator of the estate of Kan Suk Ying (deceased) as the vendor and Talent Play Limited as the purchaser (pursuant to a Nomination dated 22 May 2008 from Universal Sight Limited, the initial purchaser in the IF Agreement, to Peter Hon Sheung Tin, the administrator of the estate of Kan Suk Ying (deceased) for the sale and purchase of the property known as All that one equal undivided 137th part or share of and in the Remaining Portion of Inland Lot No. 953 (Flat F on the First Floor and Flat Roof of Kin Yu Building, No. 46 Belcher’s Street, Hong Kong) (“1F Property ”)
and
IN THE MATTER of Section 12 of the Conveyancing and Property Ordinance, Cap. 219, Laws of Hong Kong
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BETWEEN
TALENT PLAY LIMITED
Plaintiff
and
HON KAM CHUEN (韓錦銓)，
1st Defendant
PETER HON SHEUNG TIN (韓相田)，
2nd Defendant
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Before: Hon Reyes J in Court
Date of Hearing: 8 September 2009
Date of Judgment: 8 September 2009
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J U D G M E N T
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I. INTRODUCTION
1. This case involves 3 premises in the Kin Yu Building on Belcher’s Street. I will refer to the premises individually as 1F, 1H and 2E. I have to decide whether the estates of Wan and Kan have properly answered Talent’s requisitions in relation to the 3 premises.
II. BACKGROUND
2. Wan sold 1H and 2E to Universal by Agreements dated 12 November 2007. Wan died in January 2008. Hon Kam Chuen acts in these proceedings as her executor. Universal assigned the benefit of the Agreements to Talent on 27 April 2009.
3. Peter Hon (as administrator of the estate of Kan Suk Ying) sold 1F to Universal by Agreement dated 12 November 2007. Universal assigned the benefit of that Agreement to Talent on 22 May 2008.
4. Talent’s requisitions concern ex parte Restraining Orders which the ICAC obtained in the District Court against the 3 premises in May 1975. The Restraining Orders were extended on an ex parte basis in November 1975. The Restraining Orders and Extended Orders were registered against the 3 premises.
5. The Restraining Orders recite that 1F, 1H and 2E are held “for or on behalf of or to the order of ... Hon Shum or ... the said property is due from [Wan or Kan] ... to ... Hon Shum”. Hon Shum (Hon) was a police officer who is reputed to have enriched himself through bribery while in office. By the Restraining Orders, the ICAC prevented Wan and Kan from dealing with the 3 premises pending investigations into whether the premises constituted the fruits of corruption. Hon himself died many years ago.
6. A Re-Amended Consent Order dated 25 April 2007 has also been registered against the 3 premises. The Consent Order by the High Court broadly sets out terms of settlement reached between the ICAC and the estates of Hon, Wai and Kan in relation to the Government’s corruption claims against Hon.
7. The Consent Order revoked the Restraining Orders registered against the 3 premises. The Consent Order stated that upon revocation of the Restraining Orders “the respective registered owners ... of such landed properties ... shall be at liberty to disposal of and/or otherwise deal with the same...”
8. Talent’s case is that the revocation of the Restraining Orders “did not disturb the finding of the District Court [as originally recorded in the Restraining Orders] or the affidavit evidence placed before the District Court that Wan and Kan were holding the specified properties ... for Hon”. Talent argues that all that was revoked was the restriction against the disposal of the 3 premises by Wan or Kan. There is nothing in the Consent Order (Talent submits) contradicting the “finding” in the Restraining Orders that the 3 premises were held by Kan and Wan on Hon’s behalf.
9. On this footing, Talent raised requisitions as to how the estates of Kan and Wan could claim to sell the 3 premises as beneficial owners, free from the trust on Hon’s behalf recorded in the Restraining Orders.
10. The parties have consented to the postponement of the completion date for the conveyance of 1F, 1H and 2E until 30 days after the final determination of this Originating Summons.
III. DISCUSSION
11. I think that Talent’s understanding of the effect of the Consent Order is erroneous.
12. As Mr Patrick Fung SC (appearing for the estates of Wan and Kan) stresses, the Restraining Orders were obtained ex parte. The Restraining Orders so state on their face.
13. This means that, on the evidence adduced before the District Court in 1975, the judge there was satisfied that the 3 premises were at least arguably held by Wan or Kan as nominees of Hon. One might speculate that the judge regarded the 3 premises as possibly having been conveyed by Hon to Wan or Kan to avoid linkage with Hon and to forestall any questions as to how a police officer could afford so many properties on only a certain salary.
14. But the Restraining Orders were obtained without hearing argument from anyone other than the ICAC. In particular, the statements in the Restraining Orders about the beneficial ownership in the premises could not constitute findings of fact by the District Court. There has never been a trial on the issue of the beneficial ownership of the 3 premises. The District Court may thus have been right or wrong in its provisional view (not “finding”) that there was a case for treating the properties as beneficially held by Hon.
15. By the Consent Order the Court subsequently revoked the Restraining Orders. The consequence of this was that the ICAC’s allegations about beneficial ownership being in Hon remained mere allegations.
16. The Consent Order settled the ICAC’s case against Hon and authorised the registered owners of the 3 premises (Wan and Kan or their estates) freely to deal with the properties. In other words, whatever its evidence may have originally been, the ICAC dropped its allegations in relation to the beneficial ownership of the 3 premises as a result of the settlement. On the other hand, as a party to the settlement, Hon’s estate also agreed to Wan and Kan or their estates freely disposing of or dealing with the 3 premises. Hon’s estate thereby effectively signified that it makes no claim to the 3 premises.
17. As a result, I do not think that the restraining Orders can serve as a basis for querying the ownership of the 3 premises. The actuality is that no one is presently suggesting that the properties are held on Hon’s behalf. The ICAC is certainly not doing so. Hon’s estate is not doing so. The revoked Restraining Orders apart, Talent has no evidence that the registrations should now be taken at otherwise than face value. Whatever may have been the position in 1975 before the District Court, matters have moved on with the filing of the Consent Order. In the circumstances, the possibility of someone turning up in the future and claiming the properties for Hon or his estate strikes me as remote and fanciful.
IV. CONCLUSION
18. The estates of Hon and Kan answered Talent’s requisitions along the lines set out in the Discussion section above. Accordingly, the requisitions were adequately answered.
(AT Reyes)
Mr Mok Yeuk Chi, instructed by Messrs JSM, for the Plaintiff
Mr Patrick Fung, SC, instructed by Messrs Hon & Co, for the Defendants