WONG CHUNG KI KENNETH AND ANOTHER v. KAM HUNG LEE

1998, No. MP4489

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATION REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4489 OF 1998

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J U D G M E N T

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1. This is an application for replacement of trustee and a vesting order. The evidence shows that in October 1972, the first named Plaintiff, Wong Chung Ki Kenneth was born to Mr. Wong Se Khun ("the father") and the Defendant. The father and the Defendant were then cohabiting.

2. In 1976, the property in question was assigned to the Defendant. The evidence from the father is that the property had been purchased with his money, and that it was the intention of himself and the Defendant that the property should be held in trust for Kenneth and any other children that may be born in the future to him and the Defendant.

3. In 1977 the younger son, Wong Chung Lam was born.

4. In 1989 however the Defendant left, and in 1994 on 22nd June, the Defendant executed a Declaration of Trust by deed. In this Declaration of Trust, it is recited that first of all, there was an assignment of the property in question to the Defendant and secondly, that the sum purported to be paid by the Defendant under the assignment was in fact provided by her sons and that the property so assigned were held by the Defendant for her sons as tenants in common in equal shares.

5. That declaration of trust is not strictly accurate because the money came from the father and not the sons, one of whom in fact had not even been born at the time of the assignment. However, I am satisfied from the evidence that what was intended by all parties was that the property should be beneficially owned by Kenneth and by whatever children may be born in the future to the father and the Defendant, and in fact the younger son, Chung Lam was so born. The class of such beneficiaries is closed because the father and the Defendant are no longer cohabiting and in fact, it is not known where the Defendant now is, although she has been in contact with her sons sporadically.

6. Accordingly, I am satisfied that the evidence enables me to make an order in terms of the Amended Originating Summons which provides for the father to be first made trustee for the sons, for the legal interest in the property to first vest in the father as trustee, and such legal interest to be vested onto the Plaintiffs by the trustee within two months from the date of this order. This seemed a little convoluted:- I do not know why the parties wish that to be so, but both sons have now reached the age of majority, their counsel Mr. Siu tells me that those were his instructions and therefore, I would make an order in terms of paras. 2, 3, 3(a) and 4 of the Amended Originating Summons with no order as to costs.