SECRETARY FOR JUSTICE v. HON KAM WING AND OTHERS

SECRETARY FOR JUSTICE v. HON KAM WING AND OTHERS

The court held that a constructive trust arising from bribes as per Reid is a real/institutional trust arising on receipt of the bribe, so the Government was equitable owner from receipt and section 20(1) of the Limitation Ordinance applies; consequently the Government's claims to recover the trust property or its proceeds are not time-barred.

Citation
SECRETARY FOR JUSTICE v. HON KAM WING AND OTHERS
Parties
Plaintiff: Secretary for Justice; 1st Defendant: Hon Kam Wing (appointed to represent the estate of Hon Kwing Shum aka Hon Shum); 2nd Defendant: Wan Lin; 3rd Defendant: Kan Suk-Ying; 4th Defendant: Lau Miu-Yuk (aka Lau Mei-Yuk / Lau Mee-Yuk / Lau May-Yuk); 5th Defendant: Hon Yuet Ngor (Administratrix of the estate of Ng Yip aka Ng Hei)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
7 February 2003
Case Number
HCA3377/2000
Procedural Posture
Civil Equitable Trust and Limitation / Preliminary Issue Trial and Judgment
Outcome
Plaintiff's claims are not statute-barred; preliminary issue answered in favour of Plaintiff and action to proceed
Legal Topics
Constructive Trust, Remedial Versus Institutional Trust, Statute of Limitations (limitation Ordinance Cap.347), Bribes and Misapplied Trust Property, Attorney General for Hong Kong V Reid
Source Language
EN
Equity Trusts Limitation Law Fiduciary Duty Public Law (state Recovery) Constructive Trust Remedial Versus Institutional Trust Statute of Limitations (limitation Ordinance Cap.347) +2 more

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Parties

Secretary for Justice

Plaintiff

Hon Kam Wing (appointed to represent the estate of Hon Kwing Shum aka Hon Shum)

1st Defendant

Wan Lin

2nd Defendant

Kan Suk-Ying

3rd Defendant

Lau Miu-Yuk (aka Lau Mei-Yuk / Lau Mee-Yuk / Lau May-Yuk)

4th Defendant

Hon Yuet Ngor (Administratrix of the estate of Ng Yip aka Ng Hei)

5th Defendant

Procedural Posture

Civil Equitable Trust and Limitation / Preliminary Issue Trial and Judgment

Legal Issues

  1. 1 Whether plaintiff's claims are time-barred under sections 4(1)(a), 4(2) and 4(7) of the Limitation Ordinance (Cap.347) by analogy
  2. 2 Whether section 20(1) of the Limitation Ordinance excludes limitation for claims by a beneficiary in respect of fraud or converted trust property
  3. 3 Whether a constructive trust arising from bribes (per Reid) is a 'real' (institutional) trust or a remedial/fictional trust to which limitation applies

Ratio Decidendi

The court held that a constructive trust arising from bribes as per Reid is a real/institutional trust arising on receipt of the bribe, so the Government was equitable owner from receipt and section 20(1) of the Limitation Ordinance applies; consequently the Government's claims to recover the trust property or its proceeds are not time-barred.

Court Disposition

Plaintiff's claims are not statute-barred; preliminary issue answered in favour of Plaintiff and action to proceed

Orders

  • Answer to the preliminary issue: No (the claims are not time-barred)
  • Order nisi that the Plaintiff shall have its costs of and occasioned by the Summons dated 11 June 2002, such costs to include the costs of the hearing before Master Mary Yuen on 11 July 2002 and of the hearing before the Deputy High Court Judge