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Sam Shui Natives Association v Kwok Wai Chiu And Others

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
CourtHigh Court (Hong Kong)
Judgment Date03 August 2007
Judgement NumberHCMP1384/2000
Subject MatterMiscellaneous Proceedings
HCMP004224/1996 SAM SHUI NATIVES ASSOCIATION v. KWOK WAI CHIU AND OTHERS

HCMP 4224/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4224 OF 1996

______________________

IN THE MATTER OF SAM SHUI NATIVES ASSOCIATION
and
IN THE MATTER OF Subsection 3 of Section A of Inland Lot No.681, Subsection 4 of Section A of Inland Lot No.681, Subsection 2 of Section B of Inland Lot No.681, Subsection 1 of Section A of Inland Lot No.762

and
IN THE MATTER OF the Trustees Ordinance, Chapter 29

______________________

BETWEEN

SAM SHUI NATIVES ASSOCIATION Plaintiff
and
KWOK WAI CHIU and KWOK WAI KAI 1st Defendant
KENNETH, the Surviving Executors of
the estate of KWOK CHAN, Deceased
THE PERSONAL REPRESENTATIVE 2nd Defendant
OF LAW WAI KWUN, Deceased
THE PERSONAL REPRESENTATIVE 3rd Defendant
OF LUK YAM FONG, Deceased
THE PERSONAL REPRESENTATIVE 4th Defendant
OF SUM CHEUK TONG, Deceased
THE PERSONAL REPRESENTATIVE 5th Defendant
OF CHIN YEE TIN, Deceased
THE PERSONAL REPRESENTATIVE 6th Defendant
OF TANG MAN HING, Deceased
THE PERSONAL REPRESENTATIVE 7th Defendant
OF TSANG SUM TSUN, Deceased
THE PERSONAL REPRESENTATIVE 8th Defendant
OF HO PING NAM, Deceased
THE PERSONAL REPRESENTATIVE 9th Defendant
OF LEUNG CHI NAM, Deceased
THE PERSONAL REPRESENTATIVE 10th Defendant
OF CHAN YIK TONG, Deceased
THE PERSONAL REPRESENTATIVE 11th Defendant
OF TANG KAM CHI, Deceased
THE PERSONAL REPRESENTATIVE 12th Defendant
OF CHIN SUK CHO, Deceased
THE PERSONAL REPRESENTATIVE 13th Defendant
OF LI CHING KIU, Deceased
THE PERSONAL REPRESENTATIVE 14th Defendant
TANG CHEUK WAN, Deceased
SO CHI CHEONG, the personal representative 15th Defendant
of SO TSE HANG, Deceased
THE PERSONAL REPRESENTATIVE 16th Defendant
OF CHAN HIU CHUEN, Deceased

______________________

HCMP 1384/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1384 OF 2000

______________________

IN THE MATTER OF SAM SHUI NATIVES ASSOCIATION
and
IN THE MATTER OF Subsection 3 of Section A of Inland Lot No.681, Subsection 1 of Section A of Inland Lot No.762

and
IN THE MATTER OF the Trustees Ordinance, Chapter 29

______________________

BETWEEN

SAM SHUI NATIVES ASSOCIATION 1st Plaintiff
and
KWOK WAI CHIU and KWOK WAI KAI 1st Defendant
KENNETH, the Surviving Executors of
the estate of KWOK CHAN, Deceased
SO CHI CHEONG, the personal representative 2nd Defendant
of SO TSE HANG, Deceased

______________________

(Consolidated pursuant to the Order of Master Poon dated 11 September 2000)

Before : Hon Chung J in Court

Date of Hearing : 24 July 2007

Date of Handing Down Judgment : 3 August 2007

____________________

J U D G M E N T

____________________

Introduction

1. HCMP 4224/1996, which was commenced in December 1996, was concerned with:-

(a) a piece of land located at Yu Lok Lane, Western District (“property A”);
(b) a piece of land located at Queen’s Road West (“property B”);
(c) another piece of land located at Yu Lok Lane (“property C”).

2. HCMP 1384/2000, which was commenced in March 2000, was concerned with:-

(1) property B;
(2) property C.

All the above properties are collectively called “the suit properties” below.

3. By a master’s order made on 11 September 2000, the actions were consolidated, with the direction that the affirmations filed in HCMP 4224/1996 are to stand as affirmations in the consolidated action. For convenience, “this action” in the paragraphs below refers to the consolidated action.

4. The relief sought herein is in short:-

(a) a declaration that the plaintiff is (and has been) the legal and beneficial owner of the suit properties;
(b) alternatively, a declaration that the plaintiff has been in adverse possession of the suit properties since September 1960;
(c) a declaration that the plaintiff has thereby become the legal and beneficial owner of the suit properties;
(d) an order vesting the legal title of and the legal estate in the suit properties in the plaintiff (whether by virtue of the primary or alternative claim).

It is common ground the relief sought in sub-para. (a), (c) and (d) above is based on trusts created in the plaintiff’s favour whereas that sought in sub-para. (b), (c) and (d) above is based on the provisions of the Limitation Ordinance (Cap. 347).

5. The Official Solicitor (“OS”) became involved in this action in the following circumstances.

6. As will be set out in more details below, the defendants passed away before the commencement of these proceedings. The plaintiff sought the OS’s consent to represent the estates of the second to thirteenth defendants and the sixteenth defendant. By a consent order dated 12 March 1998, the OS was appointed to represent the said defendants. The fourteenth defendant appears in person.

Background Facts

7. The only source of evidence relating to this comes from the affidavit evidence filed on the plaintiff’s behalf.

(a) Events Leading to the Plaintiff’s Incorporation

8. Prior to about 1888, a piece of land was allocated by the government for use as the communal graveyard of 41 clansmen from Sam Shui (三水). The graves were known as “Sam Shui Yee Chung” (三水義塚).

9. A fund-raising was organised in 1888 by some clansmen from Sam Shui. The fund raised was used for repairing and maintaining the “Yee Chung” and acquiring real properties (in particular, property A (see para. 13 below)).

10. An unincorporated body “Sam Shui Doon Yi Tong” (三水敦義堂) was formed in about 1888. “Doon Yi Tong” became “Lui Kong Sam Shui Sheung Kung Mo Kuk” (旅港三水商工務局) in about 1911. The latter was an organisation approved by the government.

11. In May 1946, the “Sheung Kung Mo Kuk” became “Sam Shui Natives Association” (三水同鄉會), which was registered with the then Secretary of Home Affairs. It was later registered under the Societies Ordinance (Cap. 151).

12. In September 1960, the plaintiff was incorporated and approval was given for the use of the word “limited” to be dispensed with.

(b) Acquisition of the Suit Properties

13. As stated above, surplus from the fund raised in 1888 was used to purchase property A (in 1888). It was registered in the names of 8 members of the “Doon Yi Tong” as tenants-in-common (D4 to D11). The income from property A was used for maintaining the “Yee Chung”, annual worship and memorial ceremony, and providing relief to needy clansmen or the poor.

14. By a declaration of trust dated 27 February 1913 (some 25 years later), 3 of the 8 registered owners (D9 to D11) declared that property A was held on trust for the “Sheung Kung Mo Kuk” and the “Yee Chung”.

15. Property B was purchased in 1928 in the names of 5 members of the “Sheung Kung Mo Kuk” as tenants-in-common (D12 to D16).

16. A declaration of trust was executed by 3 of the said 5 members (D12, D14 and D15) in November 1954 (about 26 years later). The trust instrument states that property B was held on trust for all members for the time being of the “Natives Association”.

17. Finally, property C was purchased on 30 November 1948 in the names of 3 members of the “Natives Association” (D1 to D3). A declaration of trust was executed by them on the same date declaring that property C was held on trust for the “Natives Association”.

18. Hence, the suit properties were all purchased prior to the plaintiff’s incorporation. Likewise, the declarations of trust were all executed before that time.

The Trust Claim

19. It is common ground that the creation of a trust over the suit properties amounted to the disposition of equitable interest in land and hence s. 5(1)(a), Conveyancing and Property Ordinance (Cap. 219) (formerly s. 5, Law Amendment and Consolidation Ordinance (Cap. 23)) is applicable. In short, any such disposition requires a written instrument.

20. Indeed, this part of the plaintiff’s claim is premised on the declarations of trust.

21. Further, leaving aside the issue of the certainty of a trust, an express trust is created where the settlor intends to do so: Underhill and Hayton: Law of Trusts and Trustees (2006) 16th Ed., para. 8.1. There is no difficulty relating to this point because the OS does not dispute the declarations of trust were in the nature of express trusts.

22. The test for the interpretation of trust instruments, though not entirely free from complications, is generally similar to that for the interpretation of contracts: Drafting Trusts and Will Trusts (2007) 8th Ed., para. 4.12 citing Botnar v. IRC [1999] STC 711. Two matters relevant to what the declarations of trust mean are (a) the actual language used therein and (b) all the factual background reasonably known to the parties in which the words therein came to be used: Chitty on Contracts (1999) 28th Ed., especially para. 12-043.

23. The OS has levied various criticisms against this part of the plaintiff’s claim. It is unnecessary to set out or discuss the criticisms except one: the plaintiff was never intended by the declarations of trust to be a beneficiary thereunder. Neither the actual language used in the declarations of trust nor the relevant factual background suggests that the plaintiff was their intended beneficial owner. The...

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