FUNG KAM KWONG v. FUNG KAU

HCMP 1152/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1152 OF 2015

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D E C I S I O N

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1.  This is an application of the plaintiff by originating summons dated 12 May 2015 for, principally, two declarations in respect of a company called Keen Rich Development Limited (“the Company”).  The plaintiff is the son of the defendant.  They are the only two shareholders of the company.  Despite the fact that the defendant has filed his intention to contest these proceedings, he has not taken any part and he failed to comply with the unless order to file any affirmation in opposition to this application.

2.  This morning, Mr Lee, appearing for the defendant, informed the court that on the following day they would make an application to cease to act for the defendant and up to this moment they do not have instruction in respect of this application.  I believe I can treat the defendant to abandon his opposition to this application.  

3.  Now I turn to the merits of the plaintiff’s application.

4.  As helpfully set out in the skeleton submissions of Mr Law, the declaration sought in the originating summons basically mirrors the terms of a declaration signed by both parties dated 7 January 2008.  The declaration was written in the Chinese language and the parties set out their arrangement in respect of their respective liabilities and interests in the matters of the Company.  In gist, the defendant would take up all the interests, rights and liabilities of Haikou Harbourside Entertainment, whereas the plaintiff would take up all the interests, rights and liabilities of the Company in respect of two projects to be carried out in Haikou City.

5.  I understand substantial investment has already been made on the projects by the Company. The declaration signed by the parties was actually based on a resolution of the Company, but the resolution has been lost. That is why the parties find it necessary to make the declaration.  Despite the declaration, the Chinese authorities still do not accept the fact that the Company has already gone out of the picture and they do not accept the plaintiff taking over the projects. 

6.  Notwithstanding the declaration, the defendant, according to the plaintiff, has been unhelpful to resolve this dispute with the Chinese authorities.  In the circumstances, the plaintiff finds it is necessary to make the present application so that the declaration sought, if granted, will be produced to the Chinese authorities.

7.  In the premises, I am persuaded that there is a genuine purpose to be served by the declaration sought and on the basis that the evidence is well supported by documents and is not contradicted, I am minded to grant the declaration sought. 

8.  Therefore, I make an order in terms of paragraph 1 of the draft order submitted by Mr Law.

9.  As regards costs, the plaintiff does not ask for costs.  In the circumstances, I make no order as to costs.

10.  Lastly, I thank Mr Law for his succinct and helpful submission.