ZHANG LIQIN v. THE REGISTRAR OF COMPANIES AND OTHERS

HCMP 1910/2017

[2019] HKCFI 568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1910 OF 2017

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D E C I S I O N

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1. This is an application for restoration of the company to the Companies Register pursuant to s 765 of the Companies Ordinance, alternatively for a declaration that the dissolution of the company by way of deregistration in March 2015 was null and void, and for orders pursuant to s 42 for the removal or rectification of certain documents now appearing in the Companies Register in respect of the company.

2. The company was incorporated on 15 April 2011 with the Applicant as its sole member and director. Between 24 April 2012 and 13 November 2014, a number of documents were lodged with the Companies Registry, mainly by the 2^nd respondent, without the knowledge or approval of the Applicant, stating inter alia that the Applicant had resigned as a director, that the 3^rd respondent had been appointed in his place, and that the Applicant had sold all his shares in the company to the 3^rd respondent on 16 October 2012.  On 13 November 2014, an application for deregistration of the company which was signed by the 3^rd respondent purportedly as a director was delivered to the Registrar of Companies.  As a result, it was published in the Gazette dated 27 March 2015 that the company was deregistered and dissolved.  It was only then, when the company’s bank account was frozen, that the Applicant became aware of these matters.

3. On this application, which the 2^nd and 3^rd respondents have not opposed or even responded to, I am satisfied that none of the impugned documents was authorised by the Applicant and that the 3^rd respondent had never been entered into the register of members of the company.  There was no resolution by the Applicant to appoint the 3^rd respondent as a director and the Form D2A (which gave notice of the change of director from the Applicant to the 3^rd respondent) was not authorised by the Applicant.  The signature appearing on the last page of that form was forged.

4. In these circumstances, this is not a case of a director in respect of whose appointment a defect is subsequently discovered. It seems to me the 3^rd respondent had not been appointed a director at all.  He had no colour of right whatsoever to act as a director of the company.  S 461 of the Companies Ordinance (Cap 622)[1] does not apply to salvage the validity of the acts of such a person: Morris v Kanssen [1946] AC 459, 470‑472.  It follows that the application for deregistration of the company filed by the 3^rd respondent was a nullity.  For this reason I agree with the view of the Registrar of Companies, expressed in her statement made pursuant to s 43(2) of the Ordinance, that it is more appropriate for the Applicant to seek a declaration that the deregistration and dissolution of the company was void, rather than an order under s 767 for restoration of the company to the Companies Register.

5. There will also be orders for the removal of the impugned documents from the Companies Register pursuant to s 42, it being evident that they were part of an overall scheme designed to deceive and that their continued presence on the Register is likely to cause damage to the company: see Re China Nice Education Research Publishing Investment and Management Co Ltd [2016] 3 HKLRD 525; Re Honour Island Development Ltd [2018] HKCFI 636.