Keong Gaik Cheng v. Sun Hung Kai (Nominees) Ltd. and Others

HCMP005254/2000

HCMP 5254/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANCEOUS PROCEEDINGS NO. 5254 OF 2000

____________________

____________________

Coram: Hon Yuen J in Court

Date of Hearing: 6 December 2000

Date of Judgment: 6 December 2000

_______________

J U D G M E N T

_______________

1. This is an application for various declaratory orders.

2. The evidence disclosed in the affidavits is that the Applicant is what is described as the "common-law wife" of a Mr Alex Stephen Wee. Mr Wee has filed an affirmation to the effect that in April 1988, he acquired a number of shares in what was then the Hong Kong and Shanghai Banking Corporation using, as his purchasing broker, the Singapore branch of the DG Bank. In relation to one lot of 20,000 shares, Mr Wee has deposed that he intended that to be acquired as an absolute gift to the Applicant. He deposes in his affirmation that upon acquisition of those shares, they were held in the Applicant's custody.

3. The Applicant has also made an affirmation to the effect that she had received these 20,000 HSBC shares and she still holds the original certificates of these HSBC shares. However, these shares were held not in her name but in the name of either the 1st Respondent, Sun Hung Kai (Nominees) Limited or the 2nd Respondent Sun Tai Cheung Credits Limited.

4. It would appear that the Applicant, after getting the share certificates, put them away and it was not until 1996, some eight years thereafter that she asked her daughter to find out if these share certificates were still valid. Apparently, enquiries took quite some time and it was not until 1988 that HSBC referred the matter to the 1st and 2nd Respondents. The 1st and 2nd Respondents could not, however, find any contract note which would connect these shares with any trade done by DG Bank. As far as the DG Bank itself is concerned, they had destroyed all their relevant documents in 1997.

5. Accordingly, a Court declaration was sought by the Applicant to the effect that those shares had been her property since Mr Wee acquired them in April 1988. The links, as it were, between the shares and the trade done by DG Bank comes from (i) a letter dated 26 April 1988 from the DG Bank to the Applicant care of Mr Alex Wee in which they say that as per the Applicant's instructions, they enclosed the following shares for her retention. The share certificates referred to there are the share certificate numbers which are held by the Applicant and which have the 1st or 2nd Respondents' names as their registered holders; (ii) furthermore, in an affirmation filed in the past couple of days, Mr Kenneth Tsui of the 1st Respondent had deposed to the fact that although the records of the 1st and 2nd Respondents did not show any customers in the name of DG Bank or the Applicant during the relevant period (nor has the Applicant produced any contract notes), it is relevant to note that amongst the unclaimed shares kept by the 1st Respondent, there were replacement shares for the said 20,000 shares of HSBC together with related dividends and other benefits.

6. In view of the above connecting factors, I am satisfied that the relevant shares had been acquired from the 1st or 2nd Respondent by the Applicant acting through DG Bank as the purchasing broker. In the circumstances, I am prepared to make a declaration in terms of the draft order handed up to me this morning together with amendments I have made thereto.

7. I should also add that the solicitors for the 1st to 4th Respondents have indicated in correspondence with the solicitors for the Applicant last night that they had no objection to the draft order. However, I do not know whether the draft order that they had agreed to is the same as that handed up to me this morning. However, the Applicant's solicitors have undertaken to swear and file an affirmation by today to the effect that the draft order handed up to me this morning is the same version as the draft order agreed to by the solicitors for the 1st to 4th Respondents.

8. Accordingly, I would order in terms of the draft order handed up to me this morning with amendments indicated thereto.

Representation:

Mr James McGowan, instructed by Hwang & Co., for the Applicant

Messrs Woo Kwan Lee & Lo, for the 1st and 2nd Respondents, Absent

Messrs Johnson Stokes & Master, for the 3rd and 4th Respondents, Absent