WAH YING CHEONG CO LTD v. CHAN KWOK PING AND OTHERS

HCMP 3059/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3059 OF 1997

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DECISION
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1. I have before me a summons issued by the plaintiff on 13 October 2015 seeking an order that the plaintiff do have leave to pay into Court, pursuant to section 62 of the Trustee Ordinance, Cap 29, net of all costs and expenses, the respective balances of the sale proceeds of No 64 Shanghai Street, Kowloon, Hong Kong and the credit balances referred to in paragraphs 2 and 7 of the Order of Rogers J (as he then was) dated 19 November 1997 and amended on 8 September 1998 (“the Rogers Order”) currently held by the plaintiff on trust for the 2^nd, 3^rd and 4^th defendants respectively.

2. The background facts giving rise to the present application were set out in a written decision of Deputy High Court Judge Lam (as he then was) in these proceedings dated 27 August 2003 (“the August 2003 Decision”) and I shall not repeat them here.

3. As stated in paragraphs 2 and 7 of the Rogers Order and as confirmed or clarified by the August 2003 Decision and a further written decision of Deputy High Court Judge Lam dated 30 January 2004, various sums of money are held by the plaintiff on trust for the estate of Chan Leung Sing, deceased (ie the 2^nd defendant), the estate of Chan Yee Kin, deceased (ie the 3^rd defendant), and the estate of Chan Hok Hin, deceased (ie the 4^th defendant), instead of for the beneficiaries of the respective estates or the descendants of said deceased persons individually.

4. There are, however, currently no personal representatives appointed for the estates of said deceased persons. Furthermore, notwithstanding the advertisements placed in 2004 pursuant to paragraph 2 of the order of Deputy High Court Judge Lam dated 15 March 2004 (“the March 2004 Order”) inviting the descendants of the said deceased persons or the beneficiaries of the said estates to apply for the appointment of personal representatives or judicial trustees for the administration and distribution of the trust monies held by the plaintiff for the respective estates of the said deceased persons, no relevant application has been made by any such descendant or beneficiary up to the date hereof.

5. Section 62(1) of the Trustee Ordinance provides as follows:-

“ 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.”

6. Section 62(2) of the Trustee Ordinance further provides as follows:-

“ The receipt or certificate of the proper officer shall be a sufficient discharge to trustees for the money or securities so paid into court.”

7. As I mentioned in the course of the hearing of the present application, I am concerned about the plaintiff’s delay in making the present application.  Mr Gary Lam (for the plaintiff) said that the plaintiff had been trying to locate the beneficiaries to represent the 2^nd to 4^th defendants but its effort had not been successful.  Mr Lam recognised, however, that this explanation was not entirely satisfactory.  Although I am not convinced by this explanation, I do not think the plaintiff’s delay should affect the present application, save as to costs.

8. On the materials currently before me, it seems clear that the trust moneys held by the plaintiff have remained unclaimed notwithstanding the advertisements placed pursuant to the March 2004 Order.  In these circumstances, it would, in my view, be appropriate to direct the plaintiff to pay the trust moneys into Court pursuant to section 62 of the Trustee Ordinance notwithstanding the plaintiff’s delay in making this application.  This course of action was, I believe, envisaged by Deputy High Court Judge Lam in paragraph 6 of the August 2003 Decision, where the learned judge stated as follows:-

“ … I asked the parties if there was any reason why the shares of the proceeds of sale and credit balances belonged to the estates could not be paid into court awaiting proper representative appointed for the respective estate to collect the same. This could apparently save the Plaintiff from incurring further costs on disputes about further distribution amongst the descendants of each estate and the Plaintiff would be discharged from its duty as trustee towards these estates.”

9. In all, I make the following order:-

(1) the plaintiff do have leave to pay into Court, net of all proper and reasonable costs and expenses, the moneys referred to in paragraph 8 of the 8^th affirmation of Yu Shuk Mei filed on 13 October 2015, together with all interest accrued thereon since that date;

(2) the plaintiff shall give notification of this order and the rights of the 2^nd to 4^th defendants to apply for payment out of their respective entitlements to the moneys paid into Court by way of advertisements in one Chinese language newspaper and one English language daily newspaper within 14 days from the date of payment into Court;

(3) upon compliance with paragraphs (1) and (2) above, Order 92 rule 4 of the Rules of the High Court, Cap 4A, shall be deemed to have been complied with by the plaintiff;

(4) any unclaimed trust monies shall be dealt with in accordance with Rule 23 of the High Court Suitors’ Funds Rules, Cap 4B;

(5) the plaintiff’s costs of and occasioned by this application be paid out of the trust monies pursuant to Order 62, rule 31 of the Rules of the High Court, Cap 4A, such costs to be summarily assessed.