Re Habib Finance International Ltd

HCMP 711/2018

[2018] HKCFI 1193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 711 OF 2018

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D E C I S I O N

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1.This is the application of Habib Finance International Limited (“Company”) by way of Originating Summons dated 10 May 2018 (“Originating Summons”) for an order, inter alia, that the unclaimed cash particularized in the Schedule thereto (the “Schedule”) be paid into court pursuant to s.62 of the Trustee Ordinance (Cap. 29) and Order 92 of the Rules of the High Court.

2.The Company was incorporated on 16 March 1976 under the former Companies Ordinance, Cap. 32 (the “predecessor Ordinance”). The majority shareholder of the Company is Habib Bank Limited (incorporated in Pakistan). The Company has since been carrying on business as a provider of local and foreign trade financial services, remittance and deposit-taking services for its customers.

3.The Company is desirous to cease business on 30 June 2018. To this end, a resolution was passed on 19 April 2018 for the affairs of the Company to be wound up. The records maintained by the Company show various sums (either in Hong Kong or United States currencies) standing to the credit of some of its customers, consisting of natural persons and body corporates.

4.In February 2018, effort was made by the Company to contact each of these customers by letter with a view to advising them to take steps to liquidate and close their accounts with the Company. In view of the lack of response, reminders were sent in March 2018.

5.In April 2018, Messrs. Wilkinson & Grist, acting on behalf of the Company, issued Final Notices, either by letter or by email, to the non-responsive customers. Further, on 25 April 2018 an advertisement was placed in two locally circulated newspapers, namely, Sing Tao Daily and The Standard.

6.Despite the efforts as aforesaid made by the Company and its solicitors, the non-responsive customers as enumerated in the Schedule (collectively the “Non-Responsive Customers”) could not be traced and the various sums belonging to the respective Non-Responsive Customers as particularized in the Schedule remain unclaimed.

7.The entries in the Schedule have been classified according to the relevant currencies in which the various sums were held. In fact, there are only 18 Non-Responsive Customers, instead of 19 as enumerated in the Schedule, since one Yokohama International Co. held accounts in both Hong Kong and United States currencies and was therefore listed twice (Nos. 15 and 19 in the Schedule).

8.Amongst the 18 Non-Responsive Customers, 8 were body corporates of which 7 had been struck off the register between 27 December 1996 and 5 October 2007 (Nos. 3, 7, 10, 11, 13, 14 & 17 in the Schedule) either under s.290A of the predecessor Ordinance (for failure to forward annual returns) or under s.291 thereof (for being defunct in the opinion of the Registrar after due enquiry).  The remaining one (No. 18 in the Schedule) was deregistered on 12 February 2006 by virtue of s.751 of the Companies Ordinance (Cap. 622).  

9.The other 10 Non-Responsive Customers are natural persons. They were either operating businesses as sole-proprietor(s) or in partnership(s) with use of the accounts maintained with the Company or simply depositor(s) (Nos. 1, 2, 4, 5, 6, 8, 9, 12, 15 (repeated in 19) & 16 in the Schedule).

10.On the information given in the Affirmation of Tariq Hussain and the 2^nd Affirmation of Tariq Hussain filed herein on 10 May 2018 and 24 May 2018 respectively, I am satisfied that these various sums enumerated in the Schedule are held by the Company on trust for the respective Non-Responsive Customers.   

11.In the circumstances, I am also satisfied that reasonable efforts have been made to contact the Non-Responsive Customers by the Company and its solicitors but to no avail.

12.At the hearing on 30 May 2018, Miss Lee of Messrs. Wilkinson & Grist sought to apply for an order that the respective sums standing to the credit of the said 8 Non-Responsive Customers (referred to in Paragraph 8 hereinabove) be paid into the Treasury, instead of the Court, by virtue of s.292 of the predecessor Ordinance and s.752 of Cap. 622.

13.In brief, these 2 provisions stipulated that any property vested in or held on trust for a company immediately before its dissolution “is deemed to be bona vacantia and shall accordingly belong to the Government” (see s.292(1) of the predecessor Ordinance in respect of companies struck off and dissolved pursuant to ss.290A and 291 thereof) or “is vested in the Government as bona vacantia” (see s. 752 of Cap. 622 in respect of companies deregistered under s.751 thereof).

14.There is however no evidence before the Court as to (a) when the Company came by the various sums now standing to the credit of the respective Non-Responsive Customers; and (b) whether they were received before or after the striking off or deregistration.  

15.More importantly, there is no evidence as to whether the Non-Responsive Customers in turn held the sums, whether in whole or in part, on behalf of other third parties, which shall not be regarded as bona vacantia (see. s.292(1) of the predecessor Ordinance).

16.Further, a company may be restored to the register within a period of 20 years after having been struck off or deregistered (see s.290A(6) of the predecessor Ordinance which, despite having been repealed in 1999, continues to apply in respect of companies struck off thereunder; s.760(3) of Cap. 622 in respect of companies struck off pursuant to s.291 of the predecessor Ordinance; and s.765(2) as read with s.766(1)(b) of Cap. 622 in respect of deregistered companies).

17.The possibility of the restoration of these 8 Non-Responsive Customers to the register of companies may be remote but there is no good reason to rush into dealing with the relevant unclaimed cash particularized in the Schedule as bona vacantia.  This part of the application, which in any event is not in the Originating Summons, is refused.

18.Accordingly, I grant the relief sought in Paragraphs (1), (3) to (5) of the Originating Summons. Paragraph (3) thereof is to be re-numbered as Paragraph (2) in an Order to be drawn up for approval of the Court, with the following provision added:

“3. Upon compliance of Paragraph (2) herein, Order 92, Rule 4 of the Rules of High Court is deemed to have been complied with by the Applicant”.

Miss Lee Lai of Messrs. Wilkinson & Grist for the Applicant