LI TIN SANG ADAM v. POON BUN CHAK AND OTHERS

HCCW 1196/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP NO. 1196 OF 2004

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D E C I S I O N

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1.  These proceedings involve a minority shareholder’s petition brought under sections 177(1)(f) and 327 of the Companies Ordinance seeking to wind up Giant Wizard Corporation, the 6^th Respondent (“Giant Wizard”).  Giant Wizard is an overseas company which appears to carry on business in Hong Kong. 

2.  The petition is brought by Mr Adam Li who is, he says, a shareholder in Giant Wizard, the extent of his shareholding at present being one of the causes of the dispute between himself and the other parties to the petition.  Apart from Giant Wizard, there are five other parties to the petition.  The 1^st to 4^th Respondents are four brothers, members of the Poon family - Messrs Poon Bun-chak, Poon Kai-chak, Poon Kei-chak and Poon Kwan-chak respectively.  The 5^th Respondent is a company called Farrow Star Limited. 

3.  The Petitioner and the 1^st to 5^th Respondents constitute the whole of the shareholders in Giant Wizard.  Giant Wizard, the Petitioner and the 1^st to 4^th Respondents are also shareholders in a company called Texwinca Holdings Limited (“Texwinca”).  Texwinca is itself a Bermudan company which is listed on the Hong Kong Stock Exchange.  Its main business is in the textiles field, operating knitting factories, dyeing factories and a chain of retail shops under the name of “Baleno” in Hong Kong.  It is a substantial company with a market capitalisation, at present, of somewhere in excess of HK$6 billion. 

4.  Giant Wizard is the holder of some 505,200,000 shares in Texwinca.  At one time, its shareholding represented some 51 per cent of Texwinca’s issued shares although it appears from a recent announcement made by Texwinca to the Stock Exchange that Giant Wizard’s shareholding may now be somewhat less, in proportionate terms, amounting to some 38 per cent.  It is, nonetheless, the largest single shareholder in Texwinca.

5.  Giant Wizard, in turn, has as its shareholders Farrow Star Limited, the 1^st to 4^th Respondents and the Petitioner.  It appears from the petition that initially some 80 per cent of Giant Wizard’s shares were held by Farrow Star, the remaining 20 per cent being held by the other shareholders, with 7.6 per cent being held by the Petitioner and 12.4% being held by the 1^st to 4^th Respondents between them.

6.  However, following a share issue in respect of Giant Wizard which took place in about 2000, to which the Petitioner did not subscribe but in respect of which the other shareholders appear to have taken up their entitlements, with the Petitioner’s entitlement being taken up in default by Farrow Star, the position has changed so that the Petitioner is now only a 0.09 per cent shareholder in Giant Wizard, whereas the 1^st to 4^th Respondents have maintained their combined shareholding in Giant Wizard at the same level as previously and Farrow Star has increased its shareholding from some 80 per cent to some 87-odd per cent of Giant Wizard’s issued shares. 

7.  As I have indicated, Texwinca is a substantial company.  The value of the shares held by Giant Wizard in Texwinca was in the region of some HK$3.7 billion at the time of the issue of the petition but it has currently fallen, as a result of changes in its share price on the Stock Exchange, to a value that is still slightly in excess of HK$3 billion. 

8.  The Petitioner’s case as to the basis of which he seeks to wind up Giant Wizard is set out in his petition.  In essence, he alleges that Giant Wizard was set up by agreement between himself and the 1^st to 4^th Respondents, and perhaps the 5^th Respondent as well, and that it was the mutual agreement and understanding between them that the only purpose for which Giant Wizard would exist would be to hold shares in Texwinca, some of which represented an entitlement contributed by the Petitioner, and that apart from holding such shares, all that Giant Wizard was to do was to receive dividends declared by Texwinca on its shares and to pass on such dividends immediately on receipt to its, that is, Giant Wizard’s, own  shareholders in the proportion in which they held shares in Giant Wizard. 

9.  The Petitioner has alleged that this in fact happened on three occasions - twice in 1993 and once in 1994.  On those occasions, Texwinca declared dividends and the petitioner received some dividends directly from Texwinca in respect of shares which he held in Texwinca in his own name and, on the same day or within the next day, received a cheque from Giant Wizard which appeared to represent the dividends payable on his proportionate interest in the Texwinca shares owned by Giant Wizard. 

10.  However, on about 1 October 1994, the Petitioner resigned from Texwinca, of which he had been an executive director, following what he describes as disagreements with the 1^st Respondent.  He complains that since then the other Respondents have conducted the affairs of Giant Wizard in a manner that is unfairly prejudicial to him so as to justify the winding-up of Giant Wizard on the just and equitable ground. 

11.  The principal complaints are as follows:  the Petitioner complains in paragraph 14 of his petition that since his resignation, Giant Wizard has wrongly refused or failed to pay any dividends which it has received on to him.  There is an allegation that dividends by Giant Wizard were paid to other shareholders of that company but not to the Petitioner.  He says that despite demands, that has remained the position ever since.  According to the Petitioner, by the time of the presentation of the petition, there should have been some HK$47-odd million in dividends received by Giant Wizard which should have been paid on to him alone.  He says that he has not received any of such payments and he complains that this is conduct that is unfairly prejudicial to him and to his interests. 

12.  A further complaint that the Petitioner makes relates to the issue of additional capital in Giant Wizard in about 2000.  It appears that there was an expansion of the capital of Giant Wizard in 2000 by way of a rights issue.  The Petitioner did not take up his entitlement under that rights issue, pointing out that, from his point of view, it made no sense for him to do so, given that to do so would mean he would have to contribute capital to Giant Wizard on which he would get no return, having regard to its track record since 1994 of failing to pay on to him the dividends to which he says he was entitled as a result of the declaration of dividends by Texwinca to Giant Wizard.  He says it is therefore unsurprising and must have been anticipated by the 1^st to 5^th Respondents that he would not subscribe to that rights issue, the consequence of which was that his interest in Giant Wizard was substantially diluted. 

13.  Mr Yu, SC, who appears for the Petitioner, has indicated that on the basis of the current market capitalisation of Texwinca, the extent of the dilution of the petitioner’s interest in monetary terms, is that it has fallen from an attributable shareholding in Texwinca worth some HK$287 million to an attributable shareholding worth only HK$2.8 million.  This, says Mr Yu, is quite apart from the dividends which have been declared by Texwinca, presumably received by Giant Wizard but not paid on to the petitioner which, so far as he is concerned, amount to HK$47-odd million at least. 

14.  It is also said that the price that was set for the subscription for the rights issue was set too low in that it represented less than the proportionate asset value of Giant Wizard at the time.  The effect of this would be to prejudice the petitioner doubly in that not only was his interest diluted, but his interest in the underlying assets of Giant Wizard as a shareholder was substantially transferred to the other shareholders at less than full value. 

15.  He says that the rights issue cannot be justified, given the nature of the agreement between the parties, which was that Giant Wizard should carry on no business other than the holding of the Texwinca shares and the receipt and on-payment of the dividends received from Texwinca.  He says, therefore, that there is no basis on which Giant Wizard or its directors could have considered that there was any good reason or bona fide purpose to call for a rights issue to raise capital for it.  He says, in essence, that the only reason for the rights issue must have been to dilute his interest and to prejudice him and benefit the other shareholders at his expense. 

16.  The final matter complained of relates to provision of information in relation to the affairs of Giant Wizard.  The Petitioner complains that he has never received any notice of any meetings of Giant Wizard or any financial information relating to it.  It is against this background that the Petitioner presented this petition in November 2004.  Of the various Respondents to the petition, only the 3^rd Respondent has filed evidence in opposition so far.  The 1^st Respondent, who is said to be the chairman and managing director of Texwinca and, as far as the petitioner knows, the sole director of Giant Wizard has not, so far, seen fit to file any evidence in these proceedings. 

17.  It is against that background that the Petitioner has sought specific discovery of certain classes of documents which he says are relevant to matters in issue in these proceedings and which are prima facie in existence and in the possession, custody or power of the 1^st Respondent and also of the 6^th Respondent, Giant Wizard itself.  So far as Giant Wizard is concerned, as the subject matter of this petition, it does not, of course, take any active role in the proceedings.  However, it is well-recognised that one of the steps that a company that is the subject of a just and equitable petition to wind up can and should take is to provide discovery of relevant documents in relation to the matters in issue in the proceedings. 

18.  As I understand it, one of the points taken by Mr Kwok, SC, in opposition to the application, is that it is unnecessary at this stage to order specific discovery on the basis that the 1^st Respondent and, one assumes, Giant Wizard, are perfectly prepared to give discovery to the petitioner, but on the basis that mutual discovery should be provided. 

19.  However, having regard to the fact that the nature of Mr Kwok’s submissions are, in essence, either either no case for existence had been made out in relation to certain of the categories of documents of which discovery is sought, or that, even if a case for existence is made out, there is no prima facie case of relevance shown, it does not seem to me that there would be very much benefit in putting off a decision on this application until after mutual discovery has been carried out.  Given the stance of the 1^st Respondent in relation to the question of relevance, it cannot be supposed that any list of documents that he may file is likely to contain any of the documents which are now sought.  I therefore propose to deal with the application on its merits. 

20.  I therefore turn to consider each of the classes of documents that are sought and to consider the objections which Mr Kwok has raised to an order being made in respect of them.  Mr Kwok started by drawing my attention to the decision of Chu J in Re Estate of Ng Chan Wah (unreported, CFI, HCAP5 of 2003, 5 March 2003).  In that decision, Chu J held that in order to be relevant, documents sought must relate to one or more specific allegations particularised in the pleadings.

21.  Mr Yu did not quarrel with this approach.  In that case, there had been a general complaint against administrators of an estate of misconduct and wrongdoing.  The general complaint was, however, narrowed down by reference to particulars specifying particular acts of misconduct which were complained of.  Against that background, Chu J held that the court should consider the actual allegations of misconduct made, and test relevance by reference to the actual allegations as particularised, rather than the general allegation prior to particularisation.

22.  I entirely accept that but in this case, it seems to me that there have been reasonably clear particulars given of the complaints that are made by the Petitioner, which I have summarised earlier in this judgment. 

23.  Against that background, I turn to consider each of the categories of documents that are sought.  I shall do so by reference to the application made against the 1^st Respondent as the documents are sought from the 6^th Respondent correspond, in my view, entirely with classes of documents sought from the 1^st Respondent.  No point has been taken as to control of such documents, or the difference between the 1^st and 6^th Respondents as separate legal entities in terms of control. 

24.  The first category of documents that is sought is bank statements of the 1^st Respondent showing receipts of dividend payments and other payments made by Giant Wizard to the 1^st Respondent.  Mr Kwok submitted first that, in so far as this related to other payments apart from dividends paid by Giant Wizard to the 1^st Respondent, this was not in issue in these proceedings.  He pointed to the fact that there was no mention of shareholders’ loans or other payments in the petition and drew my attention to paragraph 14 of the petition to which I have earlier referred. 

25.  With respect to Mr Kwok, it seems to me that that is not right.  The nature of the allegation and the complaint is that dividends were received by Giant Wizard from Texwinca.  The nature of the agreement between the shareholders that is alleged is that Giant Wizard would, having received such dividends, immediately pass them on to the other shareholders.  Although it is fair to say that the precise wording of paragraph 14 of the petition refers to dividends paid by Giant Wizard, or payment of dividends by Giant Wizard, it seems to me that read properly in the context, the complaint is not so much as to the payment of dividends by Giant Wizard to other shareholders but not to the petitioner, but in relation to the failure to make on-payment to the Petitioner of dividends received by Giant Wizard from Texwinca, it being alleged that such dividends received were paid on to other shareholders but not to the Petitioner. 

26.  In those circumstances, it seems to me that the question of receipt of dividends or other payments representing the proceeds of dividends received by Giant Wizard from Texwinca is clearly a matter in issue in these proceedings.  I therefore think that this category of documents is one that is properly to be disclosed.

27.  Mr Kwok also suggested that it was oppressive to seek disclosure of all of the 1^st Respondent’s bank statements without any limitation in terms of time.  Mr Yu made it clear that all that was sought was such of the bank statements as would disclose payments received by the 1^st Respondent from Giant Wizard, whatever the form or description of such payments. 

28.  It is perfectly open to the 1^st Respondent to disclose only those bank statements which contain a record of payments of this nature and, in doing so, to blank out all irrelevant entries.  That being the case, I do not consider that it would be unduly oppressive to order disclosure of this category of documents and I therefore make an order in relation to these documents requiring that disclosure of them be made on affidavit. 

29.  The second category of documents sought is copies of cheques of Giant Wizard which represent dividend payments or other payments made by Giant Wizard to the other Respondents.  So far as the 1^st Respondent is concerned, it does seem to me that this may be too wide, in that there would seem to be no particularly good reason to think that copies of cheques of Giant Wizard itself issued in favour of other Respondents, other than himself, would be likely to be in his possession notwithstanding that he is a director (and, apparently, the sole director) of Giant Wizard. 

30.  However, it seems to me, in any event, that this item is in any case covered by paragraph 8 in the schedule, which refers to bank statements, cheques and cheque stubs of Giant Wizard.  I therefore think that it is not necessary to order disclosure of this item separately and distinctly and I therefore decline to make an order in relation to paragraph 2. 

31.  As to paragraphs 3 and 4 of the schedule, these relate to notices to convene shareholders’ meetings and directors’ meetings of Giant Wizard and relevant resolutions passed thereat.  Mr Kwok submits that as none of the Respondents has alleged that there was any shareholders’ or directors’ meeting or any resolution passed, this is not a matter in question.  With respect, this is far too narrow a view.  The fact that no Respondent has alleged that a shareholders’ meeting or directors’ meeting was held is neither here nor there.  The Petitioner has clearly alleged that he has not been informed of any such meeting.  It is therefore relevant to see whether such meetings were held and, notwithstanding the fact that the Respondents, with the exception of the 3^rd Respondent, have not chosen to file their evidence so far, the matter remains in issue.  Their silence cannot, of course, be taken as acceptance of the Petitioner’s allegations.  The Petitioner’s complaint is therefore one which has not been admitted and the question of whether such meetings have been held and, if so, whether appropriate notices have been given, is clearly a matter in issue and such documents are clearly relevant to that question. 

32.  Next, the Petitioner seeks disclosure of the financial statements of Giant Wizard, including its balance sheets and profit and loss accounts and updated management accounts.  Mr Yu explained that this is a category of documents that is relevant because it relates to, among other things, whether or not Giant Wizard has received dividends from Texwinca and also whether or not it carries on any business other than the receipt of dividends from Texwinca.  It seems to me that these documents are clearly relevant and must, if they exist, be disclosed. 

33.  Mr Kwok has suggested that as an offshore private company, there is no reason to think that such documents exist in that companies of this nature often have less than full financial records.  That may or may not be correct but it remains the case that in the case of most companies, one would expect there to be some financial records and it seems to me that there is, at least, a prima facie case that such documents can, by their very nature, be expected to exist.  I shall therefore make an order requiring the disclosure of any such documents of this category as may exist. 

34.  So far as the register of members and directors and secretaries of Giant Wizard are concerned, it seems to me that although the 1^st Respondent may have admitted or asserted in other proceedings that the Petitioner is a shareholder of the company, it is clearly a matter in issue in these proceedings since the 3^rd Respondent, the only Respondent to have filed an affirmation in these proceedings, has put the Petitioner to proof of his status as a shareholder of Giant Wizard.  I therefore consider that the register of members is a relevant document which ought to be disclosed and, so far as the register of directors and secretaries is concerned, it seems to me that it is likely that such a document exists and as the question of control of Giant Wizard is likely to be an issue in these proceedings, I am satisfied that it is sufficiently relevant to call for its disclosure. 

35.  Turning to the next two categories - bank statements, cheques and cheque stubs of Giant Wizard Corporation, and ledgers, vouchers, books and accounts of Giant Wizard, and also paragraph 10 which is the list of inventories of Giant Wizard showing its assets including its shareholdings in Texwinca - all of these will go to show the asset value of Giant Wizard at the time of the rights issue in question and also will be relevant to the question of whether or not it carried on any business other than that which the Petitioner asserts it was set up to carry on.  It seems to me that these documents are clearly relevant and must be disclosed. 

36.  Finally, the last item sought is receipts from Giant Wizard showing receipt of dividend payments made by Texwinca to Giant Wizard.  It seems to me that these are clearly relevant documents which ought also to be disclosed since the receipt of such dividends lies at the heart of the dispute between the parties in this matter.

37.  For those reasons, subject to hearing submissions as to the time to be allowed for filing the necessary affidavits of discovery, I shall make an order in terms of each of the summonses issued to the 1^st and 6^th Respondents respectively, save only that I will not make any order in relation to the documents referred to in paragraph 2 of the schedule to each summons.