XCHRX BANK ONE, NA v. CELLSTAR (ASIA) CORPORATION LTD.

HCMP 781/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 781 OF 2001

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J U D G M E N T

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1. This is an application under Section 86 of the Companies Ordinance for the substitution of a document dated 16 February 2000 by another document of the same date, the wrong document having been filed with the Companies Registry on 14 March 2000.

2. The Applicant is a bank with branches in Beijing and Hong Kong. The final loan structure as agreed between it as lender and the Company was that the Beijing branch would issue standby letters of credit to a subsidiary of the Company. The standby letters of credit were secured by the Defendant's US dollar cash deposits which were to be placed with the Hong Kong branch of the bank.

3. On 14 February 2000, according to the affidavit of Mr Chan Che Kin, a Marketing Assistant of the bank, certain documents were couriered from the Beijing branch to the Company here in Hong Kong and were couriered back to the Beijing branch.

4. On 2 March 2000, the Beijing branch sent various documents back to the Hong Kong branch of the bank save for a document known as "Pledge of Deposits Agreement" which had been apparently omitted. A copy of that document had, however, been faxed to the Hong Kong branch.

5. It would appear that the Company then informed the Hong Kong branch that it had the original of this missing document. On 7 March, the Company provided a document to the Hong Kong branch which purported to be the "Pledge of Deposits Agreement" and this was the original document which the Hong Kong branch sent to the Companies Registry for registration.

6. It would appear that due to a mistake this was in fact not the agreement which had been finalised between the parties, that document having been superseded by another document entitled also "Pledge of Deposits Agreement" and also of the same date. It transpired that the fax copy which the Hong Kong branch obtained was slightly different from the original document which the Company gave to the Hong Kong branch and which the Hong Kong branch sent to the Companies Registry for registration.

7. The mistake was finally discovered and by this originating summons filed on the 10 February 2001 an application under Section 86 of the Companies Ordinance has been made. No other charges have been registered against the Company in the Companies Registry, and the Company is not opposing the present application.

8. In the circumstances, I am satisfied that this application falls within Section 86 of the Companies Ordinance as I am satisfied that the failure to register the proper form of "Pledge of Deposits Agreement" was inadvertent and is not of a nature to prejudice the position of creditors or shareholders of the Company.

9. Consequently, I am prepared to make an order for the substitution of the document entitled "Pledge of Deposits Agreement" dated 16 February 2000 exhibited as "CCK-5" to the affirmation of Chan Che Kin for the "Pledge of Deposits Agreement" also dated 16 February 2000 exhibited as "CCK-6" filed with the Companies Registry on 14 March 2000 and that the time for registration of the "Pledge of Deposits Agreement" exhibited as "CCK-5" be extended to 29 March 2001.