CHEUNG WAI MAN ELMO v. KO HOK SHING AND OTHERS

HCMP 1501/2022

[2022] HKCFI 3668

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1501 OF 2022

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D E C I S I O N

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1.  I have before me an originating summon issued on 7 October 2022 by the Plaintiff, seeking the following relief:

“(1)  There shall be a declaration that the following forms and notices in relation to Juicy Fruitti Company Limited (‘Company’)  submitted to and/or filed to the Companies Register (collectively referred to hereinbelow as the ‘Impugned Documents’)  are null, void, and of no legal effect:-

(a)  Form ND4 No. 23202186003 for the purported resignation of company secretary and director of the Company (‘Purported Resignation’), submitted on 2 June 2022; and

(b)  Form NRl No. 23202186004 for the purported change of address of the registered office of the Company (‘Purported Change of Registered Office’), submitted on 2 June 2022;

(2)  There shall be an Order that the Impugned Documents be removed from the Companies Register by the 3^rd Defendant;

(3)  Further or alternative to paragraph 2 above, the 3^rd Defendant do rectify the information on the Companies Register by removing all references, if any, to the Purported Resignation and the Purported Change of Registered Office;

(4)  There shall be a further Order allowing the 3^rd Defendant to register the Company's Annual Return (Form NARl)  filed by the Plaintiff.”

2.  The application arises in unusual circumstances, it would appear from the Plaintiff’s evidence that the 1^st Defendant with whom the Plaintiff is not familiar had caused the documents referred to in [1] of the originating summons to be filed in the Companies Registry for reasons which have not been explained.  The 1^st Defendant has been served and has taken no part in these proceedings.  Clearly an order of some sort is required in order for the Companies Registry to rectify the fact that the Company’s records inaccurately record the identity of  both the director and secretary of the Company and also its registered office.  This can be done in one of two ways: (a)  either by ordering that the false documents are removed from the Companies Registry; (b)  alternatively, by changing the documents currently filed to delete the misleading and false information and replace it with accurate statements of the identity of the Company’s secretary, director and the location of its registered office.

3.  I summarize the legal principles governing application under Section 42(1) and (4) of the Companies Ordinance (Cap. 622)  which are the provisions applicable to the present application, as follows in my decision in Ho Yu Shun v Project Space Limited[1]:

“25. Broadly speaking the section is engaged if the court is satisfied that (1)  information recorded on the Companies Registry is incorrect, for example, it records a person as being a director, who had not been validly appointed, and (2)  even if a new document, which has the effect of correcting the information on the Companies Registry is registered, for example, showing correctly the validly appointed directors, allowing the earlier incorrect information to remain on the Companies Registry will cause material damage to the company and ‘the company’s interest in removing the information outweighs the interest of other persons in the information continuing to appear on the Companies Register.’ ”

4.  In Madam Justice Linda Chan’s judgment of Wang Zhihua v Registrar of Companies[2], her Ladyship also explains that:

“(1)  Section 42 (4)  prescribes and restricts how the Court’s power to order removal of information may be exercised. Removal is to be ordered only if (i)  the plaintiff has shown that registration of a document showing the rectification is not good enough; the continuing presence of the incorrect information will cause material damage to the company; and (ii)  the company’s interest in removing the information outweighs the interest of other persons in the information continuing to appear on the register.

(2)  The fact that the information is incorrect, or relates to an invalid or ineffective transaction, or has been filed without proper authority of the company in question or that a document is a nullity or is one that should never have been registered, is not in itself a sufficient reason for removing it as opposed to rectifying it.

(3)  The order made by the Court is to be registered, so that the basis of the rectification (or removal)  ought to be apparent from an inspection of the record.”

5.  Given the fact that it would appear the 1^st Defendant for unexplained reasons has filed falsified documents in the Companies Registry which necessarily might lead to the confusion in the mind of anybody inspecting it, I accept the Plaintiff’s argument that this is an appropriate case in which to order that the documents which should never had been filed are removed from the Companies Registry, rather than that the Companies Registry are required to alter what is already filed.  I will therefore make an order in the terms of paragraphs 1, 2 and 4 of the originating summons.  So far as the costs are concerned it seems to me in the circumstances that the 1^st  Defendant should clearly pay the costs of the application.  I assess those costs at HK$25,000.