In Fook Tai Investment Co Ltd v Secretary for Justice ([2013] HKEC 1229, CFI) FT sought a declaration that it was the legal and beneficial owner of certain property. Title had been vested in an associated company that had been dissolved. There had in fact been an assignment of the property by the associated company to FT but it appears that this was defective in some respects.
The Court of First Instance approved the following statement of the procedure in such cases:
‘(a) the functions performed in England by the Treasury Solicitor are to be performed by the Attorney General in Hong Kong (there being no such separate official as the Treasury Solicitor);
(b) one of such functions is that, where there is an application for a vesting order in relation to the legal interest in property being vested in a dissolved company (effectively as trustee), the application can be made under the Trustee Act (the equivalent being the Trustee Ordinance (Cap 29) in Hong Kong), and by making the Attorney General as the sole respondent;
(c) the Attorney General is involved in two capacities. First, he represents the government as the person to be divested of the property. Secondly, he is involved in a separate capacity if it is sought to assert on the government’s behalf that the property is bona vacantia;
(d) after having been served with the originating summons, the Attorney General will indicate by letter whether or not the government claims bona vacantia;
(e) it remains necessary for the Attorney General to continue as a party in the first capacity even if there is no claim for bona vacantia;
(f) there is no reason why the Attorney General should be liable for the costs (it being the applicant who seeks the relief for its own benefit), the applicant should thus not only bear its own costs, but also the costs of those required to attend the proceedings.’ ([12] per Andrew Chung J in Chambers).’
Michael Lower
