YICK FUNG SHIPPING AND ENTERPRISES CO, LTD v. HUANG BING

HCMP 851/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO851 OF 2014

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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 a vesting order against the defendant as trustee for a share to be returned to the plaintiff pursuant to section 52 of the Trustee Ordinance, Cap 29.

2. The plaintiff owns 9,998 out of 10,000 ordinary shares in its subsidiary, Li Lin Shipping Limited.  The defendant holds 1 ordinary share (“the share”) on behalf of the plaintiff pursuant to a trust deed dated 20 April 1995.  The original share certificate has been in the possession of the plaintiff.

3. By a letter dated 23 January 2014, the plaintiff’s solicitors demanded the defendant to contact the former to arrange for transfer of the share to the plaintiff within 28 days.  The letter was sent to the last known address of the defendant at Kennedy Town Praya (“the last known address”) but was returned marked “removed out”. 

4. The plaintiff has lost contact with the defendant.  A search has been made at the Births and Deaths Registry but no record of the defendant’s death was found. 

5. Diligent attempts to serve the court process have been made at the last known address, including by registered post (unclaimed), paying actual visits, making enquiries with the caretaker and land search of the property at the last known address.  Pursuant to the order of Master Hui, substituted service of these proceedings and the notice of appointment was effected by an advertisement in the Sing Dao Daily, together with service by ordinary post and insertion into the letter box at the last known address.  Accordingly, I can proceed under section 58 of the Trustee Ordinance to hear this case in the absence of the defendant.

6. It is clear that the defendant has been holding the share on trust for the plaintiff under an express trust.  The trustee cannot now be found and has neglected to transfer the share to the plaintiff for 28 days after the written request for transfer was made.  Pursuant to section 52(1)(b)(iii) and (iv) of the Trustee Ordinance Cap 29, I order that:

(1) the right to transfer one ordinary share in Li Lin Shipping Limited registered in the defendant’s name and the right to receive the dividends accrued or to accrue thereon prior to the transfer of the share be vested in the plaintiff;

(2) the plaintiff may thereafter transfer the share to itself or to any other person or entity as the plaintiff may desire; and

(3) there be no order as to costs.

7. I thank counsel for his assistance.