RE CHEUNG SAI YIN

HCMP 1053/2024

[2024] HKCFI 2352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1053 OF 2024

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REASONS FOR JUDGMENT

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1.  Before me was the application by ex-parte Originating Summons dated 17 June 2024, pursuant to section 45(e) of the Trustee Ordinance, for a order vesting in the Applicant the legal title of the half shares of and in the following 8 lots of land all of which are in Demarcation District No 39 (“the Subject Lots”):

a.  Lot No 1311;

b.  Lot No 1348;

c.  Lot No 1369;

d.  Lot No 1927;

e.  Section B of Lot No 1928;

f.  Lot No Lot No 2569;

g.  Lot No 2596; and

h.  The Remaining Portion of Lot No 2617.

2.  Section 45(e) of the Trustee Ordinance Cap 29 provides:

“45. Vesting orders of land

In any of the following cases, namely –

…

(e) 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, or releasing or disposing of the contingent right to such person as the court may direct…”

3.  It is well established that the Court may make a vesting order under section 45(e) in an ex parte application if there is clear evidence before the Court justifying the making of such order, but the Court must proceed cautiously and must examine the evidence presented by the applicant critically, and where there are gaps in the applicant’s evidence, the Court should require the applicant to address them by satisfactory evidence or provide proper explanation as to why, despite the exercise of reasonable diligence, the applicant cannot adduce further evidence to deal with the evidentiary deficiencies; it should not be assumed that the Court would rubber stamp such applications (see Re MAN KIN as the administrator of the estate of MAN PAK CHUN, deceased HCMP 2565/2014, unrep., 18 April 2016, Chow J (as the learned JA then was)).

4.  This application is supported by the affirmation of the Applicant filed on 20 June 2024 setting out the following facts, which I am satisfied are proved by the documentary evidence exhibited.

5.  By Memorial No N142864 registered in the Land Registry dated 7 December 1960, Cheung Yik Nam and Cheung Yik Mui became the owners of the Subject Lots each owning half shares of all the lots.

6.  As shown by his birth certificate, the Applicant was the son of Cheung Yik Nam, his father, and Madam Chan Kiu, his mother, and was born in 1941.

7.  In about 1967, the Applicant’s father passed away.

8.  By an Approval of Succession issued by the North District Office dated 2 November 1999 and registered in the North New Territories Land Registry by Memorial No 468726, and issued upon the application of the Applicant dated 23 June 1997, the North District Office approved and confirmed that the half shares in the Subject Lots being part of the estate of Cheung Yik Nam had been succeeded by the Applicant with Cheung Chan Shi as trustee.

9.  By a Statutory Declaration made on 11 July 1997 by Madam Chan Kiu, apparently for the purpose of obtaining the said Approval of Succession, she declared that she was the wife of Cheung Yik Nam and was also known as Cheung Chan Shi and that she was the person named as Cheung Chan Shi in the Succession to Property relating to the properties described in the schedule to the Statutory Declaration, which were the Subject Lots.

10.  As shown by a Certified Copy of an Entry of Death issued by the General Register Office of England and Wales on 27 September 2023, Madam Chan Kiu passed away on 22 May 2002 in the County of Staffordshire in the UK.

11.  Madam Chan Kiu died intestate and no application for a grant of probate of her estate has ever been made.

12.  The Applicant has satisfactorily proved by clear evidence that he has been the beneficial owner of the half shares in the Subject Lots, that the same had been held by his mother Madam Chan Kiu as trustee, and that his mother has passed away without any personal representative, and therefore his application falls within section 45(e) and it is appropriate to grant the vesting order.

13.  At the conclusion of the hearing, I therefore made an order in terms of the Originating Summons with minor amendments vesting the legal estates and interests of the half shares in the Subject Lots held by Madam Chan Kiu as trustee to the Applicant absolutely. I also made no order as to costs.

14.  I thank Mr Lau for his assistance.