RE BANK OF CHINA (HONG KONG) TRUSTEES LTD

DCMP 5291/2024

[2025] HKDC 202

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 5291 OF 2024

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JUDGMENT

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1.  This is an application made by Bank of China (Hong Kong) Trustees Ltd (中國銀行(香港)信託有限公司) (the “applicant”) by ex parte originating summons filed on 16 September 2024 for an order, inter alia, to pay into court certain unclaimed assets, identified in the schedule thereto as follows:- HK$4,735.14 and US$13,613.70, presently held by the applicant in bank accounts at Bank of China (Hong Kong) Ltd (“BOCHK”), Nos. 012-875-0-016508-8 and 012-349-5-042220-2, and interest accrued thereon from 2004 and 9 December 2009 respectively (the “Unclaimed Assets”).

2.  The application is supported by the Affirmation of Leung Pui San, dated 16 September 2024 (“Leung’s Affirmation”). Leung is the senior operational risk manager of BOCHK, the parent company of the applicant.

A.  Background

3.  The applicant is and was at all material times a trust company registered under section 78(1) of the Trustee Ordinance (Cap 29) (the “TO”). It is currently a licensed holder of Trust and Company Service Providers (under Licence No TC002348), with its main business focused on managing and administering trust property (including, but not limited to, cash and securities) and holding the trust property on behalf of the beneficiaries according to the instruments of its customers.

4.  Due to the applicant’s plan to terminate and wind down its trust business, the applicant has reviewed all customers’ cases to locate and contact each customer and/or the beneficiaries and/or the next-of-kin of the customers and/or the beneficiaries, should any of them be known to be dead. This is with intent to vest the trust property in the beneficiaries or return the trust property to the customers as settlors.

B.  The Unclaimed Assets

5.  The genesis of the Unclaimed Assets is as follows.

6.  The Unclaimed Assets are related to the estate of Ing Yin Juang (吳耀贊) (the “Deceased”), who died intestate on 1 February 1997, at Withington Hospital, Manchester, UK. A Grant of Administration of the estate of the Deceased (the “Estate”), dated 6 August 1997, was issued by the High Court of Justice, District Probate Registry at Manchester, UK to Ing Kwan Hock (吳群學) (“IKH”), the Deceased’s wife (the “UK Grant”) and the sole beneficiary of the Estate.

7.  On or around 11 May 2000, IKH executed a Power of Attorney (the “PA”) appointing the applicant as her lawful attorney to, inter alia, apply for the resealing of the UK Grant in the Hong Kong SAR for her use and benefit.

8.  As shown in a Statement in Lieu of Affidavit dated 18 May 2000, filed by the applicant with the Estate Duty Office of the Inland Revenue Department, the assets of the Estate comprised cash in two bank accounts held with BOCHK, the particulars of which are as follow: -

(a)  Savings Account No 012-878-1-011279-2, with a balance as at the date of Deceased’s death of HK$1,468.04; and

(b)  Multi-Currency Time Deposit A/C No 878-5832559-8, with a balance as at the date of Deceased’s death of USD 11,742.57 (or the equivalent of HK$$91,451.65).

(the “Bank Accounts”)

9.  The UK Grant was resealed by the High Court of the Hong Kong SAR on 4 October 2000, under HCAG 4667 of 2000.

10.  As the Estate comprised cash in the Bank Accounts, during administration of the Estate, and on or about 6 September 2024, the applicant wrote to BOCHK requesting clearance of the Bank Accounts and asked for a cheque in favor of the applicant for the balance to close the Accounts.

11.  On or around 13 September 2004, the Applicant received two cheques drawn on BOCHK: one for the sum of HK$1,735.14 and the other US$15,844.74, both in favor of the applicant as the balance of the Bank Accounts.

12.  As of the date of Leung’s Affirmation on 16 September 2024, the undisposed Estate comprised the sums of HK$4,735.14 and US$13,613.70, currently held by the applicant in the bank accounts at BOCHK, as set out in §1 above.

C.  Applicable Legal Principles

13.  In the skeleton submissions filed on 23 December 2024, the applicant relied on s 62(1) and s 104 of the TO in support of its application. In relation to the applicant’s reliance on s 62(1), the applicant relied on Re R&K International Ltd [2021] 2 HKLRD 47. However, with respect to the applicant’s reliance on the latter, no authority is cited.

C.1  Application under s 104 of the TO

14.  I first analyze s 104 of the TO.

15.  S 104 of the TO provides: -

“104. Unclaimed money to be paid into court

All money and securities which shall remain in the hands of a trust company, as trustee, unclaimed by the person entitled to the same for a period of 6 years after the time when the same shall have become payable to such person (except where payment has been restrained by order of a court of competent jurisdiction), together with such interest, if any, as shall have been received by the company in respect thereof, less any commission or other charges properly chargeable by the company, shall be paid by the company into court under and in accordance with section 62:

Provided that it shall not be necessary for the company to comply with the provisions of this section more often than once in any year nor shall it be necessary for the company to obtain the concurrence or consent of any person to such payment into court.”

16.  As DHCJ Le Pichon observed in RBC Investor Services Trust Hong Kong Ltd [2018] 5 HKC 80, there is a lack of case law and commentary on s 104 of the TO. Her Ladyship noted (at §§31 & 34) that the wording of s 104 is mandatory: “It imposes a duty on trust companies to make payment into court in accordance with s 62 once the trust assets have been unclaimed by the beneficiaries for 6 years, although it need not do so more often than once a year”. She further stated that s 62 is the prescribed means for payment in under s 104.

17.  Therefore, for the applicant to rely on s 104 of the TO, the following conditions must be satisfied:- (1) the applicant is a trust company; (2) the money and securities remaining in the hands of the applicant must be held by the applicant as trustee; and (3) such money and securities have been unclaimed by the person entitled to the same for a period of 6 years after became payable to that person.

18.  In my view, all the conditions are satisfied.

19.  First, since the applicant is registered under Part 8 of the TO, it qualifies as a trust company within the meaning of s 104.

20.  Second, I am satisfied that the Unclaimed Assets are trust assets: -

(1)  By the PA, IKH, the sole beneficiary of the Estate, appointed the applicant as her attorney to apply for the resealing of the UK Grant in the Hong Kong SAR for her use and benefit. Under §2 of the PA, the applicant was empowered to, inter alia, call in, collect, and receive all money that was payable to the Deceased or that would become due to the Deceased. The Unclaimed Assets are money payable or due to the Deceased; and

(2)  Upon receipt of the Unclaimed Assets from BOCHK on 13 September 2004, the applicant held the Unclaimed Assets as trustee for the beneficiary; therefore, the Unclaimed Assets are trust property.

21.  Third, I am also satisfied that the Unclaimed Assets have been unclaimed by the person entitled to them (ie, IKH, the sole beneficiary of the Estate) for a period of 6 years after the time when they became payable to that person.

22.  As I have concluded that the applicant is entitled to an order under s 104 of the TO, it is strictly speaking not necessary for me to address whether the applicant is also entitled to an order under s 62(1) of the TO. However, for the sake of completeness, I shall address it.

C.2  Application under s 62(1) of the TO

23.  S 62(1) of the TO provides that: -

“62. Payment into court by trustees

Trustees, or the majority of trustees, having in their hands or under their control money or securities belonging to a trust, may pay the same into court, and the same shall, subject to the rules of court, be dealt with according to the orders of the court.”

24.  When considering whether to make an order under s 61(1), the court generally follows a two-stage process. First, the court must be satisfied that the property which is the subject matter of the payment in application is trust property held by the applicant as trustee. If so, the court then proceeds to consider whether it should exercise its discretion to allow the payment in. See Re K&R International Ltd [2021] 2 HKLRD 47 at §40 per DHCJ Winnie Tsui (as she then was).

25.  It is incumbent on the applicant to demonstrate by proper evidence that it has taken all reasonable steps to identify and locate the beneficiaries (in most cases, the applicant’s customers), taking the necessary steps to return the assets to them. What constitutes “reasonable” must depend on the circumstances of each case, including the nature of the business, the circumstances in which the assets were received by the applicant in the first place, and the information available regarding the beneficiaries. See Re K&R International Ltd at §43.

26.  I am satisfied that the conditions under s 61(1) have been met.

27.  First, as noted in §20 above, the money is indeed trust property.

28.  Second, I am also satisfied that the applicant has taken all steps to identify and locate the beneficiaries. In particular: -

(1)  By a letter dated 18 August 2017, Ing Chiu Hung (吳超鴻)(“ICH”), the eldest son of the Deceased and IKH, informed the applicant that IKH had passed away on 18 January 2007.

(2)  Upon learning of IKH’s death, the applicant sent letters dated 28 August 2017, 15 June 2020 and 16 July 2024, requesting ICH to apply and obtain the grant of probate of IKH in the UK and to have it resealed in the Hong Kong SAR so that ICH could collect the Deceased’s estate in the Hong Kong SAR from the applicant.

(3)  In letters dated 16 July and 14 August 2024, the applicant again urged ICH to apply for the grant of probate for IKH in the UK and to have it resealed in the Hong Kong SAR. The applicant also informed ICH that if he failed to do so, the applicant would apply to the Hong Kong court to have the Unclaimed Assets paid into court.

(4)  Despite all the letters sent to ICH, no reply or response was received from him to date.

(5)  It appears ICH is no longer contactable.

(6)  The applicant has not received any instructions or claims from anyone regarding the Unclaimed Assets and has no additional information about the correspondence address or details of ICH. Hence, the applicant, to its best endeavor, has exhausted all reasonable means to trace the person interested in or entitled to the Unclaimed Assets, ICH.

(7)  The Unclaimed Assets have been held by the applicant since 2004, ie, for more than 20 years, during which time the applicant has not received any inquiries or claims regarding these assets. Therefore, the practical likelihood of ICH or any other person interested in or entitled to the Unclaimed Assets coming to the court for payment is not high.

D.  Costs

29.  In the originating summons and skeleton submissions, the applicant asked for the costs of this application. However, at the hearing, Mr Cheung informed the court that the applicant will not ask for the costs of this application. I note that in COL Securities (HK) Ltd v Chan Tsi Ming (2024) HKCFI 3541, Tam J, having considered all the circumstances of the case, including the fact that it was the applicant’s decision to close its business that necessitated the making of the application, made no order as to the costs of the application. The present case is similar. I therefore make no order as to the costs of this application.

E.  Order

30.  In the premises, I make of the following orders: -

(1)  It is declared that the Unclaimed Assets were and are held by the applicant as trustee.

(2)  The Unclaimed Assets and any interest accrued thereon shall be paid into court.

(3)  Notification of this order and the rights of Ing Chiu Hung (吳超鴻) to apply for payment out of the Unclaimed Assets under Order 92 of the Rules of District Court shall be given by way of a letter sent to the last known address of Ing Chiu Hung (吳超鴻) within 21 days of the order.

(4)  It is declared that upon compliance with paragraphs (1) to (3) above, the applicant shall be discharged from any obligations or claims in respect of the Unclaimed Assets, and Order 92, rule 4 of the Rules of the District Court shall be deemed to have been complied with by the applicant.

(5)  There shall be no order as to the costs of this application.

(6)  Liberty to apply.

31.  I thank Mr Cheung for the assistance he has provided to the court.