WONG PUI YIN GEORGEANNA (as the administratrix of the estate of WONG CECILIA PUI LUEN, deceased) v. HIROSHI TECHNOLOGIES LTD

CACV 218, 219 & 220/2023 & CAMP 351, 352 & 353/2023

(Heard together)

[2026] HKCA 726

On Appeal From [2023] HKCFI 1663

CACV 218/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 218 OF 2023

(ON APPEAL FROM HCMP NO 800 OF 2022)

____________

CACV 219/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 219 OF 2023

(ON APPEAL FROM HCMP NO 801 OF 2022)

____________

CACV 220/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 220 OF 2023

(ON APPEAL FROM HCMP NO 802 OF 2022)

________________________

CAMP 351/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 351 OF 2023

(ON AN INTENDED APPEAL FROM HCMP NO 800 OF 2022)

____________

CAMP 352/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 352 OF 2023

(ON AN INTENDED APPEAL FROM HCMP NO 801 OF 2022)

CAMP 353/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 353 OF 2023

(ON AN INTENDED APPEAL FROM HCMP NO 802 OF 2022)

____________

___________________

JUDGMENT

___________________

Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  There are before this court the Intervener’s 3 appeals in CACV 218, 219 & 220 of 2023, and the Intervener’s 3 applications for leave to appeal in CAMP 351, 352 & 353 of 2023.  We heard the latter on the basis that if leave to appeal is granted, the hearing will be treated as the hearing of the appeals as well.  At the end of the hearing, judgment was reserved, which we now give. 

2.  The principal debate is whether or not the originating summonses issued by the plaintiff for registration of herself as a shareholder in the 3 companies concerned and for orders for general meetings to be held, should be stayed pending the determination of a separate action brought by the Intervener claiming beneficial ownership of those 3 companies.

Background

3.  The 3 companies whose beneficial ownership is in dispute are Hiroshi Technologies Ltd (“Hiroshi”), Cheer Creation Ltd (“Cheer Creation”), and Elite Giant Ltd (“Elite Giant”).  They are all incorporated in Hong Kong.  Cheer Creation and Elite Giant are companies holding real properties and shares in other companies, but Hiroshi is a trading company engaged in the business of selling and distributing professional audio products.

4.  At the time of the death of the plaintiff’s sister, Wong Pui Luen Cecilia (“Cecilia”), in December 2020, the shareholdings and directorships of the 3 companies were as follows:

(1)     In the case of Hiroshi, 19,999 shares out of its 20,000 issued shares were held in the name of Cecilia, with the remaining 1 share held in the name of Cheer Creation.  The two directors of Hiroshi were Cecilia and Cheer Creation. 

(2)     Of the 2 shares Cheer Creation had issued, 1 share was held in the name of Cecilia and the other in the name of Elite Giant.  The two directors of Cheer Creation were Cecilia and Elite Giant.

(3)     Elite Giant also has only 2 issued shares, which were held by Cecilia and Cheer Creation respectively.  The two directors of Elite Giant were Cecilia and Cheer Creation.

5.  Cecilia died intestate on 18 December 2020.  As a result, given their shareholding structures and directorships, these 3 companies have since not had a functioning board of directors; nor is there any functioning shareholder that can vote at a general meeting even if one is convened.

6.  On 4 May 2021, the plaintiff, Wong Pui Yin Georgeanna (“Georgeanna”), obtained letters of administration in respect of Cecilia’s estate.

7.  Lee Chi Wang (“Lee”), the intervener herein, had been in a romantic relationship with Cecilia for many years.  He said that he has always been the beneficial owner of the 3 companies and that the shares in the 3 companies registered in Cecilia’s name were held by her on trust for him.  This is not accepted by Georgeanna.

8.  On 9 February 2022, Lee commenced an action (HCA 176 of 2022) against, among others, Georgeanna as administratrix of Cecilia’s estate, Hiroshi, Cheer Creation and Elite Giant (“Writ Action”). In that action, Lee claims, inter alia, declarations that he is the sole beneficial owner of the shares registered in Cecilia’s name in Hiroshi, Cheer Creation and Elite Giant respectively.

9.  On 24 June 2022, Georgeanna issued an originating summons against each of Hiroshi, Cheer Creation and Elite Giant as a defendant (HCMP 800, 801 & 802 of 2022), seeking (1) an order under ss 158-159 of the Companies Ordinance (Cap 622) that the company in question do register Georgeanna as the holder of the shares hitherto held in Cecilia’s name; (2) insofar as necessary, an order under s 633 for rectification of the register of members; and (3) further or alternatively, an order under s 570 that a general meeting of the company be held and that the resolution set out in the originating summons be deemed passed (namely, that Wong Wing Hong Joseph, the brother of Cecilia and Georgeanna, be appointed a director of Hiroshi, and that Georgeanna be appointed a director of Cheer Creation and Elite Giant).  We shall refer to these three sets of proceedings as the “Originating Summonses” or the “OS proceedings”.

10.  On 7 July 2022, Lee issued a summons in each set of the OS proceedings seeking an order that (1) he be joined as intervener; and (2) the proceedings be stayed pending the determination in the Writ Action of the beneficial ownership of the shares held in Cecilia’s name in the companies concerned.  We shall refer to these summonses as the “Stay Summonses”.

11.  On 7 September 2022, Ng J gave directions for the filing of further evidence on and the hearing of the Stay Summonses. The Originating Summonses were stayed in the interim pending determination of the Stay Summonses.

12.  On 26 April 2023, the Stay Summonses were heard by Harris J.  There was no opposition to Lee’s joinder as intervener in the OS proceedings, which was granted.  The hearing was adjourned to allow the parties time to attempt to reach consensus.  The direction given in each case was that the parties do submit an agreed consent summons by 5 May 2023, “failing which the Court shall determine [Lee’s] Summons on paper”.

13.  When the matter could not be resolved by agreement, Harris J proceeded to make a decision without a further hearing.  By his judgment handed down on 28 June 2023 (“Judgment”),[1] however, the judge not only dismissed Lee’s Stay Summonses, but also gave judgment in favour of Georgeanna on the Originating Summonses, ordering that each company do register Georgeanna as the holder of the shares hitherto registered in Cecilia’s name, that the register of members be rectified accordingly, and that a general meeting be convened and the specified resolution for the appointment of director be deemed passed.

14.  On 12 July 2023, Lee lodged appeals as of right against the orders Harris J made in the OS proceedings (i.e. CACV 218, 219 & 220 of 2023).  Lee also sought leave from the judge to appeal against the dismissal of his Stay Summonses.  This was dismissed by the judge in his decision dated 10 November 2023 (“Leave Decision”).[2] Lee then issued summonses in this court (CAMP 351, 352 & 353 of 2023) re-applying for leave to appeal.  On 23 May 2024, G Lam JA directed a rolled-up hearing and also granted a stay of execution of Harris J’s judgment in the OS proceedings pending the determination of Lee’s appeals in CACV 218, 219 & 220 of 2023.[3]

15.  In the Originating Summonses relating to Cheer Creation and Elite Giant (HCMP 801 & 802 of 2022), there is another (the second) defendant, namely, e-Corporate Service Ltd (“e-Corporate”), a company which had apparently been providing company secretarial services to Cheer Creation and Elite Giant.  It had decided not to take part in Lee’s Stay Summonses, and did not appear at the hearing before the judge on 26 April 2023.  After judgment was given in the Originating Summonses, it too applied for leave to appeal.  Harris J granted leave to appeal for the reason that he had “proceeded on the mistaken assumption that [e‑Corporate] was neutral as to the order to be made on the Originating Summonses in HCMP 801 and 802”.[4] The judge also stayed the orders in HCMP 801 and 802 of 2022 as against e-Corporate pending its appeals.

16.  On 28 February 2024, e-Corporate’s appeals from HCMP 801 and 802 of 2022 were allowed by consent,[5] with the orders for registration of Georgeanna as shareholder and rectification of the register of members set aside in so far as e-Corporate is concerned.

CACV 218, 219 & 220 of 2023

17.  We deal first with the appeals in CACV 218, 219 & 220 of 2023.

18.  Lee has raised two main grounds of appeal. First, he contends that there was a serious procedural error for the judge to give judgment on the Originating Summonses when (1) they were not listed for hearing before him on 26 April 2023, (2) the judge did not indicate to the parties that he intended to determine the Originating Summonses, and (3) Lee had had no opportunity to file evidence and make submissions on the Originating Summonses.

19.  The second ground is that the judge failed to direct himself in accordance with the approach established by authorities that where there is a pending dispute over the beneficial ownership of shares, such dispute should generally be resolved before the court exercises its powers under ss 159, 570 and 633 to order registration, rectification or a general meeting.  It is also contended that the judge failed to take into account the possibility of the appointment of an interim receiver and wrongly assumed that the companies would be left without steer if the reliefs sought in the Originating Summonses were not granted.

20.  In our judgment, the first ground alone is sufficient for us to allow the appeals.  It is not in dispute that the Originating Summonses were not listed for hearing before the judge on 26 April 2023, and that the judge did not indicate to the parties that he intended to make a substantive decision on the Originating Summonses.  In fact the OS proceedings had been and remained stayed by order of Ng J dated 7 September 2022 pending the determination of the Stay Summonses.  Neither party expected the judge would proceed to give judgment in the Originating Summonses.

21.  The reason the judge adopted this course was set out in §7 of his Judgment:

“ The originating summonses were not listed before me for hearing on 26 April 2023, but having dismissed Mr Lee’s application it seems to me that the order sought by the Plaintiff should obviously be granted and it is unnecessary to have the originating summonses listed for a further hearing.”

22.  The judge also said this in his Leave Decision at §4:

“ I took the view that the Intervener had had the opportunity to advance evidence and submissions in opposition to the Originating Summonses, albeit the evidence and submissions were filed in respect of the applications for a stay, but there was nothing to suggest that the Intervener had any more to say either by way of evidence or argument if the stay application failed as the grounds for seeking a stay could be the only grounds for opposing the Originating Summonses.”

23.  At that time, the evidence filed by Lee in the OS proceedings had been directed to his own Stay Summonses, not at the Originating Summonses.[6]The judge was laudably motivated by the objective of bringing about an expeditious determination of the OS Proceedings.  But, with respect, there was insufficient basis for him to be satisfied that Lee had filed all the evidence and made all the submissions on the Originating Summonses that he could properly have filed and made.  In fact, in his solicitors’ letter to the court dated 5 May 2023, Lee asked for an opportunity to file written submissions on, inter alia, “directions in respect of the further conduct of the Plaintiff’s Originating Summonses … (if necessary).”  In Georgeanna’s solicitors’ letter to the court dated 9 May 2023, it was also emphasised that the court was “presently only concerned with the Intervener’s stay summonses” and “the stay summonses … are the only application placed before this Court”.

24.  In these circumstances we are satisfied that the orders granting the reliefs sought in the Originating Summonses should be set aside for irregularity.  In fact, by letter dated 27 June 2024, Georgeanna indicated she was prepared to withdraw her opposition to the appeals, albeit without conceding on their merits.  By another letter dated 8 November 2024, she indicated willingness to sign a consent summons for the appeals to be allowed.  It is unfortunate that the parties were eventually unable to resolve the appeals without a hearing.  There were 2 stumbling blocks.

25.  The first is Lee’s insistence that Georgeanna should agree the grounds upon which the appeals are to be allowed.  We do not think this is necessary.  It is well established that this court will only allow an appeal by consent where it is satisfied that it is appropriate to do so: A v Torture Claims Appeal Board [2024] HKCA 471, §30; Johannesen v Cibean Development Co Ltd [1998] 2 HKLRD 106, 113B; Store Friendly Self Storage Group Ltd v Walon Entrepreneurs Ltd (CACV 101/2017, 22 November 2017), §2.  There usually has to be some material on the basis of which the court is enabled to be so satisfied.  But it does not follow that the respondent has to sign a confirmation of agreed grounds for allowing the appeal.  Nor is it incumbent upon the court, in allowing an appeal by consent, to specify the grounds on which the appeal is allowed or to give any reasons.  In the present case, given the materials that led to the order for stay of execution, a consent summons for each appeal to be allowed would have been sufficient.

26.  The second obstacle is the question of to which judge should the Originating Summonses be remitted once the appeals are allowed.  On this question we accept Lee’s contention that they should be remitted to another judge given what has already happened.

27.  Since each side has partial responsibility for the appeals having to be heard, we would make a costs order, on a nisi basis, that (1) Georgeanna do pay Lee’s costs of the appeals, including the costs of the applications for stay of execution, up to 11 November 2024; and (2) there be no order as to costs thereafter.

CAMP 351-353 of 2023

28.  We turn to consider Lee’s applications for leave to appeal against the dismissal of his Stay Summonses.

29.  Whether the Originating Summonses should be stayed pending the determination of the Writ Action is a matter of case management on which the judge had a discretion.  There is a high hurdle for challenging a decision of this nature: Xiamen Xinjingdi Group Co Ltd v Eton Properties Ltd [2023] 1 HKLRD 1301, §§18-22.  The question for this court is not whether we would have granted a stay if we were the first instance court but whether the judge’s decision can be impugned on the limited grounds for intervening in the exercise of a discretion.

30.  For the proposed appeals, 3 grounds have been advanced on behalf of Lee, as follows:

(1)     The judge erred in failing to apply the case law that supports the proposition that where there is a pending dispute over the beneficial ownership of shares, that dispute should generally be resolved first before the court exercises its summary jurisdiction under ss 159, 570 and 633 of the Companies Ordinance.

(2)     The judge wrongly probed into and took account of the relative strengths of the parties’ cases.  In assuming that unless the reliefs sought in the Originating Summonses were granted, the companies would be left without a functioning board and incapable of operating lawfully, the judge failed to take into account the possibility of appointing an interim receiver over the shares, which was an option Lee had raised.  The judge failed to take into account the irreparable prejudice that would be caused to Lee if the OS proceedings were not stayed.  The judge also failed to take into account that if the companies were left without a functioning board upon a stay of the OS proceedings, that would have been caused by Georgeanna’s unreasonable rejection of the various proposals put forward by Lee.

(3)     There was procedural unfairness in that the oral hearing was adjourned without an opportunity for Lee to make full submissions including a reply to the points raised by Georgeanna for the first time, and the judge made his decision without giving Lee an opportunity to lodge further written submissions.

31.  We shall deal with these grounds in turn below.

Whether dispute over beneficial ownership of shares should be determined first

32.  As to the first ground, it seems to us it would be overstating the position to suggest that there is a rule of law or principle that whenever there is a dispute over the beneficial ownership of shares, that dispute should be resolved first before the court exercises its powers to order registration of a person as a member of a company (s 159), or order rectification of the register of members of a company (s 633), or order a general meeting of the company to be held (s 570).

33.  There is no dispute that the court’s jurisdiction under these provisions is discretionary, and that in exercising its powers the court ought to take into account all relevant circumstances.  There is also no dispute that orders made under these provisions may have an impact on the rights of the true beneficial owner of the shares.  But it does not follow that these powers cannot be exercised where there is a dispute over the beneficial ownership of shares pending determination.

34.  A number of cases have been cited by the parties. Ms Sara Tong SC, appearing for Lee, refers us to Cheng Yuk Lin v Chan Choi Wah [1990] 1 HKC 52, which concerned an application by Chan, registered holder of 75% of the issued shares, for an order for a general meeting of the company to be held pursuant to s 114B of the previous Companies Ordinance (Cap 32). The application was opposed by the holder of the remaining 25% of the shares, Cheng. The primary issue arising from the affirmations filed was whether Chan was the beneficial owner of the shares registered in her name or held them on trust for Cheng.  During cross-examination of the deponents of the affirmations, the judge made an order barring further cross-examination as to Chan’s title to the shares, and eventually made an order for a general meeting to be held.  On appeal, Kempster JA, with whom Power and Nazareth JJA agreed, said that the judge erred in debarring himself from determining “that issue which was critical to the exercise of the discretion afforded him by s 114B”, and that inherent in the order made by the judge without determining this key issue was “at the very least, a potential injustice” to Cheng.  In the result, the order for the meeting was set aside and the application was remitted to the judge with a direction that he determine the issue of beneficial ownership before exercising his discretion under s 114B.  This case illustrates the relevance of beneficial ownership but did not, in our view, lay down any hard and fast rule.  Since the issue of beneficial ownership had arisen in the evidence, and the court having ordered cross-examination was in a position to determine that issue in the very proceedings, it was not surprising, if we may say so, that the Court of Appeal required that issue to be determined before the application under s 114B.

35.  In Re China Merchants Kin Swiss Transportation Co Ltd (HCMP 333/2014, 16 July 2014), CAU, registered holder of a majority of the shares in the company in question, applied for an order for a general meeting to be held pursuant to s 114B of the previous Companies Ordinance and for inspection of the company’s accounts pursuant to s 152FA of that Ordinance.  CML, who claimed that the shares were held by CAU on trust for it and had commenced separate proceedings to assert its rights, applied for an order that CAU’s originating summons be adjourned pending the resolution of the dispute over the beneficial ownership of the shares.  G Lam J accepted that CML’s claim over the shares materially affected the questions arising on CAU’s application and said: “There is therefore something to be said for adjourning the hearing of the originating summons herein until after the determination of the dispute over the beneficial ownership of the shares.”  In the end, taking into account all the circumstances, the adjournment was ordered.  This was a case management decision in the circumstances of that case.  It should be noted that there was a substantial amount of documentary evidence in support of CML’s case, including a certificate previously signed by CAU confirming the trust arrangement.  Further, the court was not satisfied that there was any urgency in dealing with CAU’s application or any prejudice to it if the application was adjourned.

36.  For his part, Mr Laurence Li SC, appearing for Georgeanna, relies heavily on Re Yuen Kiu Kwan [2009] 3 HKLRD 371 to argue that Lee’s claim for beneficial title to the shares has no bearing on the Originating Summonses.  That, with respect, would be to go too far.  In that case the administrator of the estate of a deceased shareholder of several companies applied under ss 69(1B) and 100 of the Companies Ordinance to be registered as a member of those companies.  The companies asked inter alia for a stay of the application pending the resolution of a writ action in which the deceased’s cohabitee claimed to be the sole beneficiary of the estate, but the court refused a stay.  Although Mr Li pointed out there were claims by the cohabitee to the shares themselves based on proprietary estoppel and constructive trust, it is clear that the court’s reasoning was based on the fact that the cohabitee was claiming to be the sole beneficiary of the deceased’s estate (see §§27-30, 36, 40).  As Kwan J said in §36: “There is no question of conflicting claims of beneficial interests over the shares of the deceased vis-à-vis the applicant as the administrator.”  The trust claims were understood by Kwan J as founding “Ms Lo’s claim for her alleged interest in the estate” (see §31), hence her “only right, as a putative legatee, is to have the estate duly administered by the administrator in accordance with law” (§30).

37.  The cases show that the existence of a dispute over the beneficial ownership of the shares is a relevant factor and, in an appropriate case, one that may influence the court as a matter of case management to defer deciding an application such as those in the present case pending the resolution of that dispute.  It is not a valid criticism that the judge did not deal with the authorities cited on Lee’s behalf, which do not stand for a rigid principle contrary to the judge’s decision.  There is no duty on a judge to deal with every submission of counsel or set out all the cases cited to him in giving reasons: Tao Soh Ngun v HSBC International Trustee Ltd [2018] HKCA 691, §69.  We do not believe Harris J overlooked the relevance of the existence of a dispute about beneficial ownership.  But it is not the only relevant factor.  Another matter, which evidently weighed in the judge’s mind, was that the 3 companies did not have any functioning board of directors.  Thus his Lordship said: “A company must have a functioning board in order to operate lawfully.  The suggestion that the Companies are left incapable of operating lawfully is unsatisfactory.”[7] This is plainly a matter the judge was entitled to take into account.  Lee’s argument that there are other ways to produce functioning boards will be dealt with below.  But we do not think the judge misdirected himself on the applicable principles. 

Whether the judge considered irrelevant matters and ignored relevant matters

38.  Ms Tong submits that the judge correctly said the court should not probe into the relative strengths of the parties’ cases in the Writ Action but wrongly went on to take into account the following matters:[8]

“ (1) Mr Lee does not explain why (on his own case) he allowed himself to be persuaded to transfer control of what would appear to be a large proportion of his valuable assets. The suggestion in one of his affirmations that there was a period when he was travelling a lot and it was convenient sounds at best naive.

(2) Mr Lee does not explain why he did not ask Cecilia to execute a declaration of trust.

(3) Mr Lee does not explain why there is nothing in writing other than some instruments of transfer and bought and sold notes, which is consistent with his version of events—no letters, no emails or any other document in which Cecilia expressly acknowledges she was his nominee.

(4) Mr Lee does not explain why he did not ask Cecilia to put something in writing recording what he says was their arrangement once it became apparent that her illness was unfortunately likely to be fatal.

(5) Mr Lee does not suggest in the evidence before me that the Plaintiff knew that Cecilia held the shares in the Company on behalf of Mr Lee.”

39.  We do not think that in referring to these matters the judge was trying to assess the relative strengths of the parties’ cases.  There was simply insufficient material for the court to do so.  What they did show was that there was no direct documentary evidence of the trust he alleges such that Lee could claim he had an iron-clad case, which could have been a strong factor in favour of a stay: see Re China Merchants Kin Swiss Transportation Co Ltd discussed above where there was a certificate signed by the registered shareholder confirming the trust arrangement.  The matters referred to by Harris J were relevant in showing that there was no obvious winner in the Writ Action, which remained to be litigated.

40.  Ms Tong also submits that in assuming that unless the Originating Summonses were granted, the companies would be left without a functioning board and incapable of operating lawfully, the judge wrongly failed to take into consideration the possibility of appointing an interim receiver over the shares.  We do not agree.  The judge was only dealing with the Stay Summonses in the OS proceedings.  It was not within his power to appoint a receiver in that context.  There was no application made by any party in the Writ Action for the appointment of interim receiver over the shares of any company, and no basis for the judge to assess the prospects of such application on the assumption one was made.  If there was such an application and if it was submitted to the judge that the OS proceedings should be stayed pending the determination of that application, different considerations might arise.  The undertaking, offered on appeal by Lee, to issue such an application if the appeals in CACV 218, 219 & 220 of 2023 are allowed, does not alter the fact that there was and is no such application on foot.  It is not fair to criticise the judge for not taking into account a hypothetical application.

41.  It is also submitted that the judge wrongly failed to take into account the prejudice that would be caused to Lee if the OS proceedings were not stayed, and that if upon a stay, the companies were left without a functioning board, that would have been caused by Georgeanna’s unreasonable rejection of the various proposals put forward by Lee.  Again we do not agree.  The judge was aware that Hiroshi is a trading business.  It is plain that if the companies’ interests were harmed and their values reduced, their beneficial owner would suffer.  On the other hand there was an impasse and no functioning board.  There were certain undertakings given by Georgeanna. A refusal to stay the OS proceedings simply means those proceedings will continue.  There is no irreparable prejudice flowing from this.  Any complaint of prejudice resulting from the actual orders sought on the Originating Summonses (such as the appointment of Georgeanna and/or her brother as director) can be addressed at the hearing of the Originating Summonses and/or any application for interim relief Lee may choose to launch.

Whether there was any procedural unfairness

42.  It is submitted on behalf of Lee that there was procedural unfairness because the oral hearing of 26 April 2023 was adjourned, and the judge issued his decision subsequently, without an opportunity for Lee to make full submissions including a reply to the points raised by Georgeanna for the first time.

43.  We do not think there is a valid complaint here.  Lee had the opportunity of filing full evidence and full written submissions in advance of the hearing of the Stay Summonses.  Lee’s counsel addressed the judge orally.  When the parties were unable to reach agreement after the hearing was adjourned for them to negotiate, it was open to the judge, if satisfied it would be fair, to proceed to deal with the matter on the basis of the papers without a further oral hearing.  We do not see any unfairness in the procedure adopted.  The only point said to have been raised by Georgeanna for the first time in her skeleton submissions is that without the orders sought in the OS proceedings, the companies would be unable to fulfil their statutory obligations.  We do not think this was in substance a new point to which Lee had unfairly been deprived of the opportunity of replying.  Georgeanna’s affidavits were replete with the point that because of the cross-holding structure and cross-directorships of the 3 companies, there was an “impasse” following Cecilia’s death and no “functioning board of directors”.  It simply follows – and it should take no one by surprise – that without something being done there would be default in compliance with the duties placed by the Companies Ordinance on directors, e.g. financial reporting requirements.  In addition Mr Li submits that the point had in fact been squarely raised in Georgeanna’s prior submissions at the call-over hearing of the Originating Summonses in September 2022, but even without referring to those submissions, we do not see that there was a new point sprung on Lee such that he must be given an oral hearing or a chance to put in further written submissions.

44.  As to the matters occurring after the hearing, in particular the proposals Lee made during the negotiations, the judge was informed of them by the parties’ correspondence.  By his solicitors’ letter dated 11 May 2023 to the judge’s clerk, Lee suggested that he had proposed reasonable solutions to enable the companies to have a functioning board, and that Georgeanna had unreasonably rejected his proposals.  We do not think there was any unfairness for the judge not to hold an oral hearing or invite further submissions for Lee to elaborate on these matters.  If appropriate they could be ventilated again at the hearing of the Originating Summonses and any application for the appointment of interim receiver and the like.

Conclusion on CAMP 351-353 of 2023

45.  For the above reasons, we do not find any reasonable prospect of success in the proposed appeals against the dismissal of the Stay Summonses.  There being no other reason in the interests of justice why the appeals should be heard, leave to appeal ought to be refused pursuant to s 14AA(4) of the High Court Ordinance (Cap 4).  Lee’s applications for leave to appeal are therefore dismissed.

46.  We make an order nisi that Lee pay Georgeanna’s costs of and relating to his applications for leave to appeal.

[1] [2023] HKCFI 1663.

[2] [2023] HKCFI 2893.

[3] [2024] HKCA 489.

[4] Leave Decision, §3.

[5] CACV 226 and 227 of 2023.

[6] There were the following affidavits or affirmations filed at the time: (1) CW Lee’s affirmations dated 7 July 2022 for an order to join him as intervener and to stay the OS proceedings; (2) Georgeanna’s affidavits dated 21 July 2022 in support of her Originating Summonses, stating that she was “not in a position to consent to [CW Lee’s] application to be joined”; (3) CW Lee’s 2^nd affirmation stated 22 August 2022 replying to Georgeanna’s affidavits which he took to have been filed in opposition to his Stay Summonses; (4) Georgeanna’s 2^nd affidavits dated 28 September 2022 made pursuant to Ng J’s directions of 7 September 2022 given in relation to the Stay Summonses, to respond to certain specified paragraphs in CW Lee’s 2^nd affirmations (concerning alleged prejudice that would be caused by any change in directorship); and (5) CW Lee’s 3^rd affirmations dated 16 November 2022, made pursuant to Ng J’s directions of 7 September 2022, replying to Georgeanna’s 2^nd affidavits.

[7] Judgment, §7.

[8] Judgment, §6.