RE JS CRESVALE CAPITAL LTD

HCMP 653/2026

[2026] HKCFI 2993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 653 OF 2026

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DECISION

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A. INTRODUCTION

1.  This is an ex parte application by the Applicant (by ex parte Originating Summons dated 24 April 2026 (“Originating Summons”)) for an order under sections 56 and 62 of the Trustee Ordinance (Cap 29) (“Ordinance”) to deal with unclaimed assets of its clients (the “Unclaimed Assets”).

2.  The application is supported by the Affirmation of Yu Tai Lung dated 23 April 2026 (“Yu’s Affirmation”). Mr Yu is the Managing Director of, and Responsible Officer accredited with, the Applicant.

B. BACKGROUND

3.  The Applicant is a limited company incorporated in Hong Kong. It was incorporated on 27 December 1985 under the name "LIBANIUS LIMITED". The name of the Applicant had been changed on various occasions, i.e. on 1 July 1986, 4 August 1987, 14 March 1991, 15 December 1999 and 9 October 2002 respectively. It changed to its current name “JS CRESVALE CAPITAL LIMITED (日盛嘉富資本有限公司)” on 6 September 2011.

4.  The Applicant was at all material times (before ceasing its business on 23 May 2025) licensed to carry on Type 1 (dealing in securities) regulated activities under the licence granted by the Securities and Futures Commission pursuant to section 116 of the Securities and Futures Ordinance (Cap 571) (the “Business”).

5.  In the course of the Business, when its clients opened cash accounts with the Applicant for the purpose of trading in securities, they would have to complete an Account Opening Information Form, be given Risk Disclosure Statements and enter into a Cash Client Agreement (the “Cash Client Agreement”) with the Applicant. As for clients who opened margin accounts with the Applicant, they would also have to enter into a Margin Client’s Agreement with the Applicant.

6.  In carrying on the Business, the Applicant had been holding various client accounts in which client’s cash and securities were deposited and held by the Applicant as custodian and on trust for them in accordance with the provisions of the Cash Client Agreement.

7.  In or about July 2023, the Applicant decided to cease the Business and formed a task force to reach out to its clients, informing them about its intended cessation of business and urging them to take back their assets. Details of the steps taken by the Applicant to contact its clients for the return of their assets have been set out in Yu’s Affirmation with supporting documents. A summary is provided below.

8.  On or about 23 August 2023, the Applicant sent the first written notice (written in both English and Chinese languages) (“1^st Written Notice”) to its clients by serving them at their respective last known correspondence addresses in the client records, informing each of its clients that the Applicant intended to cease the Business and terminate its brokerage services on 25 September 2023. The clients were urged to make arrangements: (i) to withdraw and/or collect all cash balance, securities or such other assets in their accounts; and (ii) to transfer all cash and securities and such other assets in their accounts to their accounts maintained with another intermediary at their own costs and expenses. The Applicant also notified its clients (inter alia) that if they failed to provide the Applicant with written direction or instructions as to how to deal with their assets (including securities, funds, bonds and cash) under their respective accounts, or if the Applicant was unable to contact the clients, after 25 September 2023, the Applicant may apply to deposit any unclaimed assets to a judicial trustee under Sections 56 and 62 of the Ordinance.

9.  As there were still clients who had not reclaimed their assets after the issuance of the 1^st Written Notice, the Applicant postponed its cessation of Business several times. It also issued further written notices (written in both English and Chinese languages) by way of mail to those clients at their respective last known correspondence addresses in the client records, informing them of its decision to postpone its cessation of Business, respectively on 19 October 2023, 16 November 2023, 11 January 2024, 31 January 2024, 7 March 2024, 26 April 2024, 26 August 2024, 27 September 2024, 30 October 2024, 28 November 2024 and 20 February 2025. The contents of these notices were otherwise substantially the same as the 1^st Written Notice.

10.  In about April 2025, the Applicant decided to advance the date of cessation of the Business from 29 August 2025 to 23 May 2025. On about 25 April 2025, the Applicant sent a written notice by way of mail to outstanding clients at their respective last known correspondence addresses in the client records, informing them of the updated date of cessation of Business. Such written notice again contained substantially the same contents as the abovementioned written notices.

11.  As mentioned in Yu’s Affirmation, apart from the aforementioned written notices, in about May 2023, the Applicant attempted to contact by telephone those outstanding clients who had telephone numbers recorded in its database, but without success. In about June 2025, the Applicant attempted to contact those outstanding clients who had other contact details (e.g. telephone numbers, facsimile numbers and email addresses) recorded in its database, but again without success.

12.  By December 2025, there were still clients who had not responded to the Applicant's notices or who had not claimed their assets in their accounts. As the Applicant’s records indicate that the addresses of these clients were in Hong Kong, Ithaca (United States of America), Tokyo (Japan) and Kuala Lumpur (Malaysia), the Applicant tried to contact them by causing advertisements to be published in newspapers in their respective locations.

13.  On 29 December 2025, advertisements were published in The Standard (in English) and Sing Tao Daily (in Chinese) in Hong Kong, in Ithaca Journal in the United States of America (in English), in Asahi Shimbun Tokyo Morning edition in Japan (in Japanese), in New Straits Times in Malaysia (in English) respectively. These advertisements stated that the Applicant has ceased business and any outstanding clients should approach the Applicant as soon as possible to claim back of their assets; otherwise, these assets would be paid into court or be disposed of as the Applicant sees fit.

14.  Since 2025, the Applicant has also attempted to return unclaimed cash to its clients by transferring the same to designated bank accounts of the clients. While some of these attempts were successful, some were not. This was due to, among other reasons, that the designated bank account turned out to be invalid. There were also other clients to whom the Applicant could not return their cash by this means as they did not provide any designated bank account.

15.  Despite the efforts made by the Applicant, there are still 12 clients who have yet to contact the Applicant to collect or withdraw their cash and/or securities.

C. APPLICABLE LEGAL PRINCIPLES

16.  Section 56 of the Ordinance provides as follows:

“56. Power of court to authorize dealing with trust property

(1) Where in the management or administration of any property vested in trustees, any sale, lease, mortgage, surrender, release, or other disposition, or any purchase, investment, acquisition, expenditure, or other transaction, is in the opinion of the court expedient, but the same cannot be effected by reason of the absence of any power for that purpose vested in the trustees by the trust instrument, if any, or by law, the court may by order confer upon the trustees, either generally or in any particular instance, the necessary power for the purpose, on such terms, and subject to such provisions and conditions, if any, as the court may think fit and may direct in what manner any money authorized to be expended, and the costs of any transaction, are to be paid or borne as between capital and income.

(2) The court may, from time to time, rescind or vary any order under this section, or may make any new or further order.

(3) An application to the court under this section may be made by the trustees, or by any of them, or by any person beneficially interested under the trust.”

17.  Sections 62(1) and (2) of the Ordinance further provide as follows:

“62. Payment into court by trustees

(1) 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.

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

18.  The applicable principles in relation to applications under sections 56 and 62 of the Ordinance are well-established and summarized by DHCJ Jenkin Suen SC in Re KVB Kunlun Asset Management (HK) Ltd [2023] HKCFI 907 at §13 as follows:

(1) What has to be established generally for an application of this nature are that: (a) the assets in question were held by the applicant as trustee; and (b) despite reasonable endeavours, the beneficiaries cannot be contacted or are unresponsive, or the trustee is otherwise unable to obtain instructions as to how to deal with, dispose of or return the trust assets: see Re Gold Fund Securities Ltd [2020] HKCFI 2884 at §12.

(2) Unless the otherwise is shown, a broker generally is a trustee over the money and securities it holds on behalf of its clients: see Re Gainwell Securities Co Ltd [2018] HKCFI 1497 at §4.

(3) Allowing securities companies to pay unclaimed cash and deposit into Court under s.62 of the Ordinance is a “flexible and pragmatic” solution for them to cease business and deal with the unclaimed assets in a way which protects the interest of their clients: see Re K&R International Ltd [2021] 2 HKLRD 47 at §§41-42.

(4) The Court has discretion under s.56 of the Ordinance to confer on trustees any necessary power to effect any transaction (such as the sale of the trust assets) that in the opinion of the Court is expedient in the management or administration of trust property: see Re Joint and Several Liquidators of Bankamerica Nominees (Hong Kong) Ltd [2020] HKCFI 399 at §17.

(5) It is incumbent on the applicant trustee to demonstrate that it has taken all reasonable steps to try to identify and locate the beneficiaries, notify them of the cessation of business and take the necessary step to return the assets to them. What is reasonable depends on the circumstances of each case: see Re K&R International Ltd at §§43-46, 48-54.

D. ANALYSIS

19.  I have considered the evidence set out in Yu’s Affirmation and I am satisfied that the Applicant has established both requirements set out in Re Gold Fund Securities Ltd (supra) at §12, namely: (a) the Unclaimed Assets are held by the Applicant as trustee, and (b) despite reasonable endeavours, the Applicant’s named clients (as beneficiaries) cannot be contacted or are unresponsive, or the Applicant (as trustee) is otherwise unable to obtain instructions as to how to deal with, dispose of or return the trust assets.

20.  The Unclaimed Assets fall into 4 categories:

(1) Unclaimed cash (as set out in Part A of the Schedule to the Originating Summons);

(2) Unclaimed securities of listed companies (as set out in Part B of the Schedule to the Originating Summons);

(3) Unclaimed securities of defunct and/or delisted companies (as set out in Part C of the Schedule to the Originating Summons); and

(4) Unclaimed securities of a company which is not listed (as set out in Part D of the Schedule to the Originating Summons).

21.  With respect to the unclaimed cash set out in Part A of the Schedule to the Originating Summons, the Applicant seeks an order for the stated sums to be paid into Court. As stated in Yu’s Affirmation, these sums include account balances which have not been claimed by 4 clients, as well as a sum of HK$47,661.41 which the Applicant received as dividends of various companies before 2002, and despite its best efforts, has not been able to identify the beneficiary. I am satisfied that such order should be granted pursuant to section 62 of the Ordinance.

22.  With respect to the unclaimed securities of listed companies set out in Part B of the Schedule to the Originating Summons, as stated in Yu’s Affirmation, these include shares which the Applicant received before 2002, but despite its best efforts, has not been able to identify the beneficiary, as no client has claimed that those shares belonged to them despite the long lapse of time. With respect to these shares, the Applicant seeks an order that the Applicant do have leave to withdraw the physical share certificates and deposit the same into Court. The Applicant further seeks a fallback order for leave to sell those shares and deposit the proceeds into court in the event that the physical share certificates cannot be obtained; and for leave to forfeit those shares if and only if it is unable to sell those shares. This is intended to obviate the need for the Applicant to seek further direction from the Court, thereby saving time and costs which may otherwise be incurred, should such contingency arise (a similar order was made in Re KVB Kunlun Asset Management (HK) Ltd (supra) at §17). I am satisfied that such orders should be granted pursuant to sections 56 and 62 of the Ordinance.

23.  As for the shares set out in Part C of the Schedule to the Originating Summons, they are shares of defunct and/or delisted companies, and hence prima facie of little or no value. These shares have not been claimed by any of the beneficiaries. As stated in Yu’s Affirmation, 3 of the companies set out in Part C, i.e. Siu-Fung Holdings Limited, Apex Quality Group Limited and Lerthai Group Limited, the Applicant has not been able to identify as belonging to any client(s). The Applicant received these shares in Siu-Fung Holdings Limited and Lerthai Group Limited before 2002. No client has contacted the Applicant to claim these shares. The Applicant seeks an order to forfeit those shares pursuant to section 56 of the Ordinance. However, as I mentioned to Mr Ken Lee (Counsel for the Applicant) during the hearing, I am minded to adopt the formulation employed by the Honourable Mr Justice Keith Yeung (as he then was) in Re Gold Fund Securities Ltd (supra) at §18, i.e. that the Applicant be granted leave to sell or otherwise dispose of (including forfeiture thereof) the same as it sees fit, and to pay any proceeds into Court. This would provide more flexibility to the Applicant in the event that the value of the relevant shares could be realized due to any change of circumstances. Mr Lee confirmed that the Applicant is agreeable to this proposed formulation.

24.  As for Part D of the Schedule to the Originating Summons, it contains shares of one company which is not listed i.e. Mountbatten Corporation. As stated in Yu’s Affirmation, the shares of this company were distributed as interim dividends of Allied Properties (H.K.) Limited (stock code: 56), which was a listed company in about 1998. While the Applicant has in its possession a share certificate for the said shares in Mountbatten Corporation, the said share certificate covers shares for three different clients, one of which is a client of an associate company of the Applicant. The Applicant seeks an order for leave to sell those shares and pay the proceeds into Court; and that in the event that those shares cannot be sold, an order to forfeit the same. I agree to make such orders as proposed under sections 56 and 62 of the Ordinance.

25.  Lastly, should there be any dividends (whether in cash or physical share certificates), bonus shares and/or right shares received by the Applicant in respect of from the Unclaimed Assets in Parts B to D of the Schedule to the Originating Summons, the Applicant seeks orders for leave to pay / deposit them into Court; as well as fallback orders for leave to sell those shares and deposit the proceeds into court in the event that the physical share certificates cannot be obtained, and if and only if they cannot be sold, for leave to forfeit the same. I agree that it is appropriate to grant such orders pursuant to sections 56 and 62 of the Ordinance.

E. DISPOSITION

26.  In the premises, I make an Order in terms of the draft order submitted by Mr Lee, to the effect that:

(1) it be declared that the Unclaimed Assets as set out in Parts A to D of the Schedule to the Originating Summons are held by the Applicant as trustee for each of the named clients;

(2) the 4 categories of Unclaimed Assets be dealt with as above (i.e. as per the draft order, but subject to the amendment in respect of the assets in Part C of the Schedule to the Originating Summons as explained in §23 above);

(3) if the currency of any Unclaimed Assets in cash, cash dividends, proceeds of sale or interest (if any) under the previous paragraphs is not in Hong Kong Dollar, the Applicant do have leave to convert the same into Hong Kong Dollar equivalent at the prevailing rate and deposit such Hong Kong Dollar equivalent into the Court thereafter;

(4) notification of this order and the rights of the clients of the Applicant to apply for payment out of their respective Unclaimed Assets under Order 92 of the Rules of the High Court (Cap 4A) be given by advertisements in one Chinese-language and one English-language daily newspapers in Hong Kong, one English-language daily newspaper in the Ithaca, United States of America, one Japanese-language daily newspaper in Tokyo, Japan, and one English-language daily newspaper in Malaysia, within 28 days from the date of this Order;

(5) upon compliance of the above, the Applicant be discharged from any obligations or claims in respect of the Unclaimed Assets;

(6) liberty to apply; and

(7) there be no order as to costs.