CHEN YUNG NGAI KENNETH AND ANOTHER v. HO YUK WAH DAVID (A BANKRUPT) AND OTHERS

HCA 971/2012

[2023] HKCFI 2625

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 971 OF 2012

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BETWEEN

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D E C I S I O N

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1.  On 28 September 2020, Ng J

(1) Declared amongst others, that D2 (“Gladius”) held and holds all the shares of D6 and D9 on behalf of David Ho (D1).

(2) Ordered, amongst others, D2 to take all necessary steps to transfer the shares in D6 and D9, registered in D2’s name, to the Plaintiffs within 56 days (“Ng J’s Order”).

2.  Ng J’s order was served on 6 October 2020 on Gladius’ then solicitors, Oldham, Li & Nie (“OLN”).

3.  On 9 October 2020, OLN informed the Plaintiffs that their retainer with Gladius had been terminated. OLN obtained an order to formally cease to act for, amongst others, Gladius, by an order dated 16 December 2020.

4.  The 56-day period expired on 23 November 2020 without action by Gladius.

5.  In fact, both Gladius and Pacific Di Yi (later changed its name to D9’s) had been struck off and dissolved before that, on 5 June 2020 and 22 November 2019 respectively.

6.  Subsequently, given the position taken by the Registrar of Companies that they would not execute a transfer in place of Gladius, the Plaintiffs applied to restore Gladius and D9 under section 765(4)(b) of the Companies Ordinance, Cap 622, which was granted by Keith Yeung J on 25 February 2022.

7.  On 24 February 2023, the Plaintiffs issued formal demand letters to Gladius, Liu Shu (the last sole director of Gladius) and Yu Yang (one of the only 2 last shareholders of Gladius, the other shareholder being Ferdinan Limited, which was dissolved by striking off on 19 February 2016) at the registered office address of Gladius and the usual and/or last known address of Liu Shu and Yu Yang respectively. There was no reply to those letters.

8.  This is the Plaintiffs’ Summons issued on 28 March 2023 under section 25A of the High Court Ordinance, Cap 4 for an order that the Registrar or a suitable person do execute documents on behalf of Gladius pursuant to Ng J’s Order.

9.  The present Summons and supporting affirmation (Chen 4^th) were duly served on Gladius and D9 by leaving the same at the reception of their respective registered office address on 29 March 2023. This Court’s directions letter dated 16 June 2023 for paper disposal of the Summons were similarly served on 10 July 2023.

10.  Under section 25A of the High Court Ordinance:

“(1) Where the Court of First Instance has given or made a judgment or order directing a person to execute any conveyance, contract or other document, or to endorse any negotiable instrument, then, if that person—

(a) neglects or refuses to comply with the judgment or order; or

(b) cannot after reasonable inquiry be found,

the Court of First Instance may, on such terms and conditions, if any, as may be just, order that the conveyance, contract or other document shall be executed, or that the negotiable instrument shall be endorsed, by such person as the Court may nominate for that purpose.

(2) A conveyance, contract, document or instrument executed or endorsed in accordance with subsection (1) shall have the same effect as if it had been executed or endorsed by the person originally directed to execute or endorse it.

(3) Nothing herein shall be held to abridge the powers of the Court of First Instance to proceed by attachment against any person neglecting or refusing to execute or endorse any such instrument.”

11.  Applying section 25A, I am satisfied that Ng J’s order was a judgment directing Gladius to execute documents to transfer the shareholding in D6 and D9 to the Plaintiffs.

12.  I am satisfied as to service of this summons. The Plaintiffs have exhausted all reasonable means to elicit action from Gladius but was met with no reply.

13.  As the conditions in section 25A of the High Court Ordinance have been met, I therefore make an order as follows:

(1) Lam Siu Sun Dennis, a partner of Lee, Wong & Lam, Solicitors for the Plaintiffs, be directed under section 25A of the High Court Ordinance (Cap 4) to take all steps and execute all documents as may be necessary (including but not limited to instruments of transfer, and bought and sold notes) to transfer D2’s shareholding in D6 to the Plaintiffs;

(2) Lam Siu Sun Dennis, a partner of Lee, Wong & Lam, Solicitors for the Plaintiffs be directed under section 25A of the High Court Ordinance (Cap 4) to take all steps and execute all documents as may be necessary (including but not limited to instruments of transfer, and bought and sold notes) to transfer D2’s shareholding in D9 to the Plaintiffs;

(3) There be liberty to apply; and

(4) Costs of and occasioned by this application be payable by D2 to the Plaintiffs forthwith summarily assessed at $50,000.

14.  I thank Mr Joseph Wong for his assistance.