RE CHINA JIANXIN FINANCIAL SERVICES LTD

HCMP 1600/2021

[2021] HKCFI 3819

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1600 OF 2021

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DECISION

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1.  This is the Applicant’s application by ex parte Originating Summons for an order under sections 56 and 62 of the Trustee Ordinance (Cap 29)  to pay certain assets into court and to dispose of certain other (the “Unclaimed Assets”).

2.  I have considered the 2 affirmations of Lam Kit Sun of 15 October and 8 December 2021.  I have considered the submissions of Mr Ken Lee, counsel for the Applicant.  I have also considered the various authorities cited to me by Mr Lee, which include Re Gainwell Securities Co Ltd [2018] HKCFI 1497, Re Joint and Several Liquidators of Bankamerica Nominees (Hong Kong)  Ltd [2020] HKCFI 399, Re Gold Fund Securities Co Ltd [2020] HKCFI 2884, Re K&R International Ltd [2021] 2 HKLRD 47, and Re Drake & Morgan Ltd (unrep., HCMP 1490/2009, 27 August 2009).  I have considered the relevant legal considerations in Re Gold Fund, which I will not repeat.

3.  The Applicant had been engaging in the business of brokerage services and securities margin financing, and has been licensed to carry out Type 1 and Type 4 regulated activities by the Securities and Futures Commission.  The Applicant ceased its business on 30 June 2018.

4.  I have considered the contractual documents between the Applicant and its clients.  I am satisfied that the Applicant has been holding the Unclaimed Assets as trustee for each of the named clients.

5.  On the evidence, I am satisfied that reasonable endeavours have been made by the Applicant to contact its clients since May 2018 by letters, emails, telephone calls and newspaper advertisements.  Despite such endeavours, it remains unable to obtain instructions from those named clients to deal with the Unclaimed Assets.

6.  In the circumstances, save Item 7 of Part B1 of the Schedule to the Originating Summons, which according to the 2^nd affirmation of Mr Lam has recently been claimed, I make the Declaration and Order in terms of the Originating Summons, as has now been updated in respect of that Item by the draft Order that is placed before me by Mr Lee.