RE RHB SECURITIES HONG KONG LTD AND ANOTHER

HCMP 2310/2020

[2022] HKCFI 2645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2310 OF 2020

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D E C I S I O N

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1.  This is the adjourned hearing of an ex parte originating summons dated 17 December 2020 (subsequently amended)  taken out by the two applicants.  The background to this matter and the reasons for its earlier adjournment were set out in the decision of DHCJ Winnie Tsui dated 12 May 2021 ([2021] HKCFI 1392), which I shall not repeat.  But, essentially, her Ladyship was not satisfied that the applicants had by that stage done all that they reasonably could to trace and contact all the clients on behalf of which they were holding cash and securities.

2.  The application has now been restored before me and I have been given an affirmation of Loh Wei-min dated 3 August 2022 which details the further efforts made by the applicants.

3.  Again, I will not set out all the efforts made by the applicants save to say that I am satisfied that the applicants have now exercised all reasonable endeavours and taken all reasonable steps in seeking to trace and contact all the clients in an attempt to return the assets to them.

4.  Having regard to that and the fact that the applicants have spent substantial financial resources in the process, which I am told such resources would be exhausted quite soon, balancing all these factors in my view it is now appropriate to make the order in effect for the payment in of all the unclaimed and unidentified cash and deposits and securities into court and I shall do so.

5.  The only other point I want to make is that in the originally drafted order, the applicants also ask for payment into court of abandoned cash and securities, that is, cash and securities which the relevant clients of the applicants have indicated they do not want to claim.  In such circumstances, I believe that it is inappropriate for such cash and securities to be paid into court because it would seem that no one will then come to claim them, with the result that they would remain in court indefinitely.

6.  Mr Alan Kwong, counsel for the applicants, refers me to Rule 23(1)  of the High Court Suitors’ Funds Rules[1], which provides that:

“Any money which remains unclaimed in the court for a period of five years, the Chief Justice may, on application by the Registrar, order such sum to be transferred to the general revenue of Hong Kong.”

7.  Even though this may be a practical solution, I do not think this is an appropriate way to deal with the abandoned money, as that places the burden on the Registrar to monitor and then to make an application in respect of the money which it seems to be most likely to remain in court unclaimed for that period of time.

8.  So, after discussion with Mr Kwong, the application for an order in relation to the abandoned cash and securities is to be adjourned sine die and it is for the applicants and their legal advisors to consider what is an appropriate way of dealing with such abandoned cash and securities.

9.  Subject to that, I shall make the order as revised after discussion with counsel as follows:

(1)  The unclaimed cash and unidentified deposits as set out in Section 1 and Section 4 of the Schedule annexed to this Order be paid into court.

(2)  The unclaimed securities as set out in Section 2 of the Schedule annexed to this Order (whether held in the applicants’ name or in the name of others)  be paid into court by:

(a.)  obtaining share certificates from the Central Clearing and Settlement System or other appropriate share registries or the relevant companies or corporations;

(b.)  registering the certificates in the name of the Registrar of the High Court of Hong Kong;

(c.)  depositing the same with the Registrar of the High Court of Hong Kong.

(3)  If the applicants are unable to obtain the shares certificates in respect of any of the unclaimed securities set out in Section 2 of the Schedule annexed to this Order, the applicants may sell or otherwise dispose of them as they see fit and then pay the proceeds thereof into Court.

(4)  The applicants do have leave to sell or otherwise depose of (including forfeiture thereof)  the suspended securities and delisted securities as set out in Section 3 and Section 5 of the Schedule annexed to this Order as they see fit and to pay any proceeds from the sale proceeds thereof into court.

(5)  The applicants do pay into court dividends, if any, received by the applicants in respect of the unclaimed securities, suspended securities and delisted securities as set out in Section 2, Section 3 and Section 5 of the Schedule annexed to this Order.

(6)  A notification of the order and the rights of the named clients to apply for payment out of their respectively unclaimed assets under Order 92 of the Rules of the High Court be effected by advertisements in one Chinese and one English newspaper respectively within 21 days from the date of this order, and by way of letters to the clients and/or their legal or personal representatives at their last known addresses by post

(7)  There be a declaration that, upon satisfaction of paragraphs (1)  to (6)  above, the applicants be discharged from any obligations or claims in respect of the unclaimed assets and Order 92, rule 4 of the Rules of the High Court (notice of lodgement into court)  is deemed to have been complied with by the applicants.

(8)  The Originating Summons, insofar as it relates to abandoned cash and securities, be adjourned sine die with liberty to restore.

(9)  There be liberty to apply.

(10)  There be no order as to costs.