中國遠洋運輸(集團)總公司(前稱中國遠洋運輸總公司) v. TONG BUN alias CHAN MIN YING AND OTHERS

HCMP 853/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO853 OF 2014

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J U D G M E N T

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1.  This is an application by the plaintiff for vesting orders against 6 defendants as trustees for shares to be returned to the plaintiff under section 52(1) of the Trustee Ordinance, Cap 29.

2.  The defendants hold a total of 18,000 non-voting deferred shares in Yick Fung Shipping and Enterprises Company, Limited (“the shares”) particularized as follows:

Defendant	No of shares
1st	300
2nd	1,000
3rd	1,500
4th	4,700
5th	8,500
6th	2,000

3.  The defendants have respectively executed declarations of trust dated 25 October 1990 attested before a Hong Kong solicitor declaring that they hold the shares on trust for the plaintiff.  The original share certificates have been kept by the plaintiff.  The defendants have not participated in the affairs of Yick Fung.

4.  By letters dated 23 January 2014, the plaintiff’s solicitors demanded each defendant to contact the former to arrange for transfer of the shares under his name to the plaintiff within 28 days.  The letters were sent to the last known address of each of the defendants (“collectively the last known addresses”) stated on the declarations of trust.  The letters to D1-D3 met with no response.  The ones to D4-D6 were returned.

5.  The plaintiff has lost contact with the defendants.  Searches have been made at the Births and Deaths Registry (covering 25/10/1990 to 4/5/2014) but no record of the defendants’ death was found. 

6.  Diligent attempts to serve the court process have been made at the last known addresses, including by registered post (all unclaimed), paying actual visits, making enquiries with caretakers and land searches of the properties at the last known addresses.

7.  Pursuant to the order of Master M Wong, substituted service of these proceedings and the notice of appointment was effected by an advertisement in the Sing Dao Daily, together with service by ordinary post and insertion into the letter box at the last known addresses.  Accordingly, I can proceed under section 58 of the Trustee Ordinance to hear this case in the absence of the defendant.

8.  It is clear that the defendants have been holding the shares on trust for the plaintiff under an express trust.  The trustees cannot now be found and have neglected to transfer the shares to the plaintiff for 28 days after the written request for transfer was made.  Pursuant to section 52(1)(b)(iii) and (iv) of the Trustee Ordinance, I order that:

(1) the right to transfer the deferred shares registered in the name of each of the defendant in Yick Fung Shipping and Enterprises Company, Limited and the right to receive the dividends accrued or to accrue thereon prior to the transfer of the share be vested in the plaintiff;

(2) the plaintiff may thereafter transfer the shares to itself or to any other person or entity as the plaintiff may desire; and

(3) there be no order as to costs.

9.  I thank counsel for his assistance.