TANG TUNG FAT, the sole executor of the estate of LAI TZE LIN, deceased AND ANOTHER v. SZTO (or SZETO) MAN FUNG and LEONARD FUNG-SUN LEUNG formerly known as LEUNG FUNG SUN as the executors of the estate of LEUNG WING KUT (or KAT), deceased, as Manager of YAU LOONG PRESERVED GINGER FACTORY

HCMP 325/2023

[2025] HKCFI 4219

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 325 OF 2023

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JUDGMENT

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INTRODUCTION

1.  This is the substantive hearing of the plaintiffs’ action, in which they seek a number of declarations in relation to the 5 Pieces of Land and the Four Assignments.

2.  The defendants have remained neutral in these proceedings and their attendance at the substantive hearing has as a result been excused.

BACKGROUND

3.  The relevant background of the present case may be summarised as follows.

4.  On 29 November 2013, Madam Lai Tze Lin purchased Section B of Lot No.35 (“Lot 35B”), Section A of Lot No.119 (“Lot 119A”) and Lot No.108 (“Lot 108”), all in DD 127, by virtue of 2 Assignments with Szto (or Szeto) Man Fung and Leung Fung Sun (“the Executors”), the executors of Leung Wing Kut (or Kat) (“the Deceased”), deceased.

5.  On the same day, the 2^nd plaintiff purchased Lot No.112 in DD 127 (“Lot 112”) by virtue of another Assignment with the Executors.

6.  Madam Lai together with the 2^nd plaintiff also purchased Lot No.113 in DD 127 (“Lot 113”) as tenants in common from the Executors on the same day.

7.  However, the Land Registry refused to register the Four Assignments against the respective pieces of land, because the 5 Pieces of Land were previously registered under the name of “Yau Loong Preserved Ginger Factory” (“the Factory”).

8.  The plaintiffs have therefore commenced this action so as to apply for various declarations, so that their ownership of the 5 Pieces of Land may be properly recognised.  The question here is: whether they are able to prove to the satisfaction of the Court that “Yau Loong Preserved Ginger Factory” was in fact just a trade name used by the Deceased, and that the Factory was not a distinct legal entity at all.

DISCUSSION

9.  Having considered the overall circumstances and the evidence produced by the plaintiffs, I am satisfied that the “Yau Loong Preserved Ginger Factory” was in fact just a trade name used by the Deceased for the following reasons.

10.  Firstly, Lot 108, Lot 112 and Lot 113 were sold to “Yau Loong Preserved Ginger Factory, with Leung Wing-Kut as Manager” back in 1963.  If the Factory was a separate legal entity, the Deceased’s name would not have been included as a purchaser.

11.  Secondly, although the name of the Deceased was not included as the purchaser when Lot 35B and Lot 119A were sold to the Factory, it is evident that, when the Government issued a waiver letter (“the Waiver Letter”) in relation to Lot 35B and Lot 119A on 25 November 1976, the said letter was addressed to the Deceased. 

12.  Thirdly, it can be seen that the Deceased signed the Waiver Letter in his personal capacity rather than as an officer of the Factory.  This is an important matter to be taken into account, because the waiver granted by way of the Waiver Letter was personal to the grantee.  If the Factory was the grantee, the Government would not have accepted the Deceased’s signature in his personal capacity, but, more likely than not, would have insisted that the Factory’s seal be affixed (which in fact was one of the execution options as provided by the Waiver Letter).

13.  Fourthly, when the Probate of the Deceased’s estate was granted on 22 October 1979, the 5 Pieces of Land were included in the Amended Schedule of Properties of the Probate.  This supports the plaintiffs’ case that those lands were the Deceased’s properties.  More importantly, the Executors have paid for estate duty on the above basis.  

14.  Fifthly, the Executors (who were the Deceased’s widow and son respectively) have executed a statutory declaration on 25 November 2013, by which they confirmed that:

(1)  Prior to his death on 11 June 1976, the Deceased carried on business as a sole proprietor under the name of “Yau Loong Preserved Ginger Factory”;

(2)  To the best of their knowledge, information and belief, the Deceased was the sole legal and beneficial owner of the Factory and all the rights and benefits therein.

15.  Sixthly, it has been confirmed by the Inland Revenue Department that the information of the Factory cannot be found in the Business Register.

16.  Seventhly, it has also been confirmed by the Yuen Long District Lands Office that no information of the Factory can be found.

17.  By reasons of the aforesaid, I agree that it is just and convenient to make the declarations[1] sought by the plaintiffs.

ORDER

18.  I therefore make the following order:

(1)  Order in terms of paragraphs (1) to (5) of the Amended Originating Summons herein[2];

(2)  A declaration that the respective plaintiffs are entitled to register the Four Assignments at the Land Registry against the respective lots of the land.

COSTS

19.  As the plaintiffs do not seek costs, I make no order as to the costs of this action.