廣西華錫集團股份有限公司 v. CHEUNG CHO TIK

HCMP 329/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 329 OF 2011

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BETWEEN

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J U D G M E N T

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1.  This is an application by the plaintiff for an order that 200 shares of a company called Ever Channel Development Limited (“the Company”) are subject to a trust created by a declaration of trust made by the defendant in favour of the plaintiff on 11 October 1995 in Hong Kong in the presence of a solicitor.

2.  The declaration made by the defendant stated that 200 shares of the Company (“the Shares”) standing in his name in the books of the Company did not belong to him but to one Dachang Administration of Mines (the plaintiff’s former name) of No. 1 Beihuan Road, Hechi, Guangxi, China, as the beneficial owner, and that he was holding the Shares on trust for the beneficial owner, and he undertook to transfer, pay and deal with the Shares, dividend and interest therein in such manner as the beneficial owner may, from time to time, direct.

3.  According to an affirmation of a Mr Li Chao, the exports and imports business manager of the plaintiff since 1991, and filed on 8 March 2011, the plaintiff has lost contact with the defendant since 1996. 

4.  The plaintiff used to be called Dachang Administration of Mines (大廠礦務局).  It was reorganised into a state-owned enterprise and changed its name to 柳州華錫集團有限責任公司 on 9 November 1995.  This reorganisation and change of name was registered at the Administration for Industry and Commerce of Hechi (河池市工商行政管理局) in Guangxi.  It further changed its name to 廣西華錫集團股份有限公司, which is its present name, on 19 December 2008. 

5.  Prior to issuing these proceedings, the plaintiff’s solicitors sent a letter of demand to various addresses that are associated with the defendant. 

6.  The first address is at No. 22 Somerset Road, Kowloon Tong, Kowloon.  This is the defendant’s address as stated in the declaration of trust.

7.  The second address is at No. 20 Somerset Road, Kowloon Tong, Kowloon.  It appears in the annual return of the Company. 

8.  The third address is at Flat F, 25th Floor, Block 3, Belair Monte, No. 3 Ma Sik Road, Fanling, New Territories, Hong Kong. This address appears in the return filed by a Will Glad Limited dated 3 December 2010 with the Companies Registry and the defendant was a director of Will Glad Limited. 

9.  The fourth address is at Flat B, 24th Floor, Mainway Building, 17-21 Yuen Yuen Street, North Point, Hong Kong.  This address appears in the return filed by a Delighted International Limited dated 3 December 2010 with the Companies Registry and the defendant was a director of Delighted International Limited.  This address appears to contain a typographical error because there is no Yuen Yuen Street but a Yuet Yuen Street in North Point. 

10.  Hence, another demand letter was sent to the fifth address at Flat B, 24th Floor, Mainway Building, 17-21 Yuet Yuen Street, North Point, Hong Kong. 

11.  However, there is a publication of Hong Kong maps which shows that the building in Yuet Yuen Street is called Mainway Mansion rather than Ming Wei Building.  Therefore a further demand letter was sent to the sixth address at Flat B, 24th Floor, Mainway Mansion, 17-21 Yuet Yuen Street, North Point.

12.  There was no response to any of these demands. The first and second addresses are currently occupied by a school, and the staff there confirmed to the process server of the plaintiff’s solicitors that there was no such person known as the defendant.  The security guard at the third address also told the process server that there was no such person as the defendant.  The security guard at the sixth address also told the process server that there was no such person as the defendant at that address. 

13.  After these proceedings were instituted, the plaintiff’s solicitors again effected service of the originating summons at the six addresses.  They further obtained an order for substituted service from Master de Souza on 2 June 2010, which ordered that service of a copy of the originating summons by prepaid ordinary post at the first, second, third and six addresses above and by an advertisement of a Chinese notice of these proceedings once in the Hong Kong Economic Journal shall be good and sufficient service of the originating summons on the defendant, and that service should be deemed to have been effected on the date of publication of the advertisement. This order has been complied with by the plaintiff.

14.  However, there is still no response from the defendant and no acknowledgement of service filed by him.  I am therefore satisfied that the defendant cannot be found, and I proceed to hear and determine the originating summons pursuant to s. 58 of the Trustee Ordinance. 

15.  In the light of the terms of the declaration of trust, I am satisfied that the defendant is a trustee holding the Shares of the Company, and the plaintiff is entitled to a vesting order under s. 52(3) of the Trustee Ordinance.  I therefore order that the right to transfer the Shares of the Company registered in the name of the defendant, as specified in the schedule of the originating summons and the right to receive the dividends accrued or to accrue thereon prior to the transfer of the Shares be vested in the plaintiff.

16.  I further order that the plaintiff may hereafter transfer these shares to the plaintiff itself, or to any other person or entity as the plaintiff may desire. 

17.  I make no order as to costs for these proceedings despite a request by the plaintiff for costs to be paid by the defendant.  The reason being that I have already found that the defendant cannot be found, and I do not see it fair or right to require the defendant to pay these costs.