RE BANK OF CHINA (HONG KONG) TRUSTEES LTD

DCMP 5517/2024

[2025] HKDC 203

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 5517 OF 2024

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JUDGMENT

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1.  This is an application made by the 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 27 September 2024 for an order inter alia, to pay into court certain unclaimed assets, identified in the schedule thereto as follows: (1) HK$59,843.20, presently held by the applicant in a bank account at Bank of China (Hong Kong) Limited (“BOCHK”), No. 012-875-0-016508-8 (the “Bank Account”), and interest accrued thereon from 30 August 2012; (2) 2,039 shares in Kowloon Development Company Limited（九龍建業有限公司）(“KDC”); and (3) 501 shares in Transport International Holdings Ltd（載通國際控股有限公司）(“TIH”).

2.  However, at the hearing, Mr Cheung informed the court that the shares in KDC and TIH are not held in the applicant’s name, but rather in the name of Sin Hua Trust Company (“SHT”). He asked for leave to amend the schedule to the originating summons to remove references to the shares in KDC and TIH therefrom, which the court granted during the hearing.

3.  Therefore, the application concerns only the money held by the applicant in the Bank Account (the “Unclaimed Assets”).

4.  The application is supported by the Affirmation of Leung Pui San (“Leung”), dated 26 September 2024. Leung is the senior operational risk manager of BOCHK, the parent company of the applicant.

5.  This application closely resembles that made by the applicant in DCMP 5291/2024, involving similar facts. I handed down the judgment in DCMP 5291/2024 (the “DCMP 5291 Judgment”) on the same day as the judgment in this case. This judgment should be read in conjunction with the DCMP 5291 Judgment. To avoid duplication, I will refer to the relevant paragraphs from the DCMP 5291 Judgment where appropriate.

A.  Background

6.  I refer to §§3-4 of the DCMP 5291 Judgment for the background of this application.

B.  The Unclaimed Assets

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

8.  The Unclaimed Assets relate to the estate (the “Estate”) of Louie Yu Yong（雷玉容）(the “Deceased”), who died intestate in Taishan City, Guangdong Province, PRC, on 21 February 1985.

9.  On 1 August 2007, Zhang Su Qin（張素琴）(“ZSQ”), the Deceased’s daughter and a beneficiary of the Estate, executed a Power of Attorney (the “PA”) appointing the applicant as her lawful attorney to manage all matters related to the Estate and to obtain a grant of representation for it.

10.  The Letters of Administration for the Estate (under HCAG 013103 of 2009) (the “Letters of Administration”) were granted by the Probate Registry of High Court of Hong Kong on 15 April 2010 to the applicant, acting as the lawful attorney for ZSQ, and are limited for her use and benefit until she duly applies for and obtains a like grant.

11.  The Estate consisted solely of the Deceased’s interest in the estate of Louie Ka Ching（雷家禎）, the Deceased’s father, which included 8,156 shares in KDC and 2,007 shares in TIH. On 29 February 2012, the Estate was distributed among the Deceased’s mother, Wu Zhong（伍仲）(“WZ”), deceased, ZSQ, and the Deceased’s younger daughter, Zhang Su Yun（張素雲）(“ZSY”). Following the distribution, the amount held by the applicant in the Bank Account was HK$29,674.49. According to a letter from the applicant dated 5 June 2024, the balance was at HK$59,592.70 as of the same date. This increase is attributed to the fact that, although the shares in KDC and TIH were held in the name of SHT, the dividends were paid into the Bank Account.

12.  As of the date of Leung’s Affirmation on 26 September 2024, the undisposed Estate amounted to HK$59,843.20, currently held by the applicant in the Bank Account, as detailed in §1 above.

C.  Applicable legal principles

13.  I refer to §§13-16 of the DCMP 5291 Judgment for the applicable legal principles.

14.  In my view, all the conditions under s104 of the TO are satisfied.

15.  First, as stated in §19 of the DCMP 5291 Judgment, the applicant is a trust company.

16.  Second, I am satisfied that the Unclaimed Assets are trust assets for the following reasons:

(1)  By the PA, ZSQ appointed the applicant as her lawful attorney to manage all matters related to the Estate and to obtain a grant of representation for the Estate;

(2)  Through the Letters of Administration issued to the applicant and after the distribution referred to in §11 above, the applicant is holding the Unclaimed Assets as trustee for the beneficences.

17.  Third, I am satisfied that the Unclaimed Assets have been unclaimed by the person entitled to them for a period of 6 years after they became payable to that person (see §22 below for further details).

18.  As I have concluded that the applicant is entitled to an order under s.104 of the TO, it is not necessary for me to address whether the applicant is also entitled to an order under s62(1) of the TO. However, for the sake of completeness, I will address this issue.

19.  I repeat §§23-25 of the DCMP 5291 Judgment for the legal principles applicable to an application under s62(1) of the TO.

20.  I am satisfied that the conditions under s62(1) have been satisfied.

21.  First, the money in the Bank Account is indeed trust property.

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

(1)  According to a Certificate of Inheritance（Chinese title: 繼承權公證書）(2007)台証港承字第1號 (the “Certificate of Inheritance”), issued by the Notarial Office of Taishan City, Guangdong Province, PRC (the “Taishan Notarial Office”) on 13 March 2007, the following individuals are entitled to the Estate:

(a)  The Deceased’s husband, Zhang Zhao（張釗）(“ZZ”), deceased;

(b)  WZ;

(c)  The Deceased’s son, Zhang Zhan Min（張湛民）(“ZZM”), deceased;

(d)  The Deceased’s daughter, ZSQ;

(e)  The Deceased’s younger daughter, ZSY.

(collectively the “Beneficiaries”).

(2)  Except for the interests of ZZ and ZZM in the Estate, the Estate has been duly administered and distributed amongst WZ, ZSQ, and ZSY, leaving the shares and interest of ZZ and ZZM yet to be distributed;

(3)  Regarding ZZM’s interest in the Estate, according to a Notarial Certificate attached to a Declaration of Renunciation of Right of Inheritance（Chinese title: 放棄繼承權聲明書）issued by the Taishan Notarial Office on 20 May 2003, one Yang Jiang Hong（楊江虹）(formerly known as Zhang Jiang Hong（張江虹）(“ZJH”)), the daughter and only beneficiary of the estate of ZZM, deceased, declared that she irrevocably renounced all her rights and claims to the Estate;

(4)  Regarding the shares of ZZ in the Estate (the “Remaining Interest”), the applicant made several attempts to administer the Remaining Interest by seeking assistance from the Taishan Notarial Office between 2010 and 2015. Apart from a response from the Notarial Office to the applicant in 2010, which informed the applicant that ZSQ, ZSY and ZJH were entitled to the Remaining Interest, and that administration could not proceed without contacting ZJH, there has been no further reply from the Taishan Notarial Office;

(5)  On 6 June 2024, the applicant sent a letter to ZSQ, suggesting she apply for the grant of representation of the Estate in place of the applicant. However, the applicant was informed that ZSQ, due to her old age and lack of energy and time, had no intention of proceeding with the suggested application for grant of representation of the Estate. Meanwhile, ZSY would renounce all her interests, if any, in the Estate;

(6)  According to the record of the applicant, ZJH was no longer contactable, and neither ZSQ nor ZSY could provide any information on the correspondence address or contact details of ZJH;

(7)  The applicant does not have any instructions or claims from anyone in respect of the Unclaimed Assets and does not have other information or hints on the correspondence address or details of ZJH. Hence, the applicant has, to the best of its endeavour, exhausted all reasonable means to trace all persons interested in or entitled to the Unclaimed Assets;

(8)  The Unclaimed Assets have been held by the applicant since 2012, ie, for more than 12 years, during which the applicant has not received any inquiries or claims in respect of the Unclaimed Assets;

(9)  With the irrevocable renunciation by both ZSQ and ZSY of their respective interests in the Unclaimed Assets, and given that ZJH was no longer contactable, the practical likelihood of any of ZSQ, ZSY and ZJH or any other person interested in or entitled to the Unclaimed Assets, of which the Estate forms part, later coming to the court for payment out is not high.

D.  Costs

23.  I repeat §29 of the DCMP 5291 Judgment which also applies, mutatis mutandis, to the costs of this application as it applies to the costs of the DCMP 5291 Action.

E.  Order

24.  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 Zhang Su Qin（張素琴）and Zhang Su Yun（張素雲）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 Zhang Su Qin（張素琴）and Zhang Su Yun（張素雲）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.

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