XCHRX RE KOON (OR KUN) TIN SANG

HCMP 5748/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5748 OF 2001

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D E C I S I O N

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1. This is the Applicant's ex-parte application by way of originating summons for an order to terminate an alleged trusteeship of the Applicant's uncle and to vest the title to, and interest in, the suit property in the Applicant.

2. According to the Applicant's affirmation dated 17 August 2001 in support of this application, the suit property is located in North, New Territories. Applicant's solicitor informed me at today's hearing that the suit property is located somewhere in the Fanling area. The suit property was first owned by the Applicant's great grandfather. When the Applicant's great grandfather passed away in 1906, the suit property was succeeded by the Applicant's grandfather. The Applicant's grandfather passed away in 1944 and the suit property was succeeded by the Applicant's father and his uncle, the alleged trustee (as tenents-in-common). When the Applicant's father passed away in 1952, the Applicant claims that he was still a minor (aged about 5). The Applicant asserts in the supporting affirmation that for this reason, the "Succession to Property" dated 13 April 1953 was registered by his uncle.

3. Although that document was registered by the Applicant's uncle, it clearly states that the suit property was succeeded by the Applicant and his uncle, presumably also as co-owners. Such being the case, I find it difficult to see how the Applicant can assert in a later part of his supporting affirmation that his uncle has been holding one half share of the suit property as trustee in the Applicant's favour.

4. Further, Section 18 of the New Territories Ordinance, Cap. 97 provides (among other things) that:

"Whenever any land is vested in a minor, it shall be lawful for the Secretary for Home Affairs to appoint some fit person to be a trustee thereof for such minor during his minority and to remove any such trustee and to appoint any new trustee. Every such appointment shall be registered by the Secretary for Home Affairs in the appropriate New Territories Land Registry, and upon registration the land the subject of the trust shall vest in the registered trustee for all the estate and interest of the minor therein ........"

5. It does not appear that the Secretary for Home Affairs has exercised his power of appointment under that provision in relation to the present case. Further, if in fact the Applicant's share in the suit property has been held on trust, this application may more appropriately be proceeded with in accordance with the provisions of the New Territories Ordinance (Cap. 97) and/or the Probate and Administration Ordinance (Cap. 10).

6. When the above matters were raised with Applicant's solicitor at today's hearing, he asks for an adjournment of this application so as to consider the matter further. Accordingly, this application is adjourned sine die with liberty to restore.