NGAI CHUN NGOR IRENE AND OTHERS v. LING FAT CO LTD AND OTHERS

HCA 161/2020

[2022] HKCFI 1557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 161 OF 2020

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D E C I S I O N

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1.  There are 2 applications before the court both issued by the 6^th defendant (“D6”). The first is an application by summons dated 18 January 2022 (“Summons”) for variation of the “Injunction” (as defined in §17 below) and partial release from the “Undertakings” (as defined in §23 below) both for the purpose of allowing him to have the shares beneficially owned by the late Madam Cheng Yiu Chun (“Mother”) be registered in his name qua administrator of her estate (“Estate”). The other summons dated 21 April 2022 is for leave to amend the Summons to make clear that the application is made by D6 qua administrator of the Estate.

2.  The plaintiffs (“Ps”) oppose the Summons but not the application for leave to amend the Summons.  There is no prejudice to Ps as they had been told in January 2022 that the application would be made by D6 qua administrator of the Estate.  It is appropriate to give leave to D6 to amend the Summons to make clear that the application is made by him qua administrator. 

Background

3.  The parties to this action are members of the same family.  The 9^th defendant (“Father”) and Mother[1] begotten 5 children, who are the 1^st plaintiff (“P1”), the 2^nd plaintiff (“P2”), the 3^rd plaintiff (“P3”), D6 and Mr Ngai Chun Ming Tommy (“Tommy”) who resides in Canada.  D6, P2, P3 and Tommy are respectively the eldest, the 2^nd, the 3^rd and the youngest son.  P1 is the daughter.  The 7^th defendant (“D7”) is the son of D6 while the 8^th defendant (“D8”) is D7’s wife. 

4.  The 1^st to 5^th defendants are companies founded by Father and the parties regarded them as “family companies” (collectively “Companies”).

5.  Amongst the Companies:

(1)  the 1^st defendant (“Ling Fat”) operates a Chiu Chow cuisine restaurant, founded in 1955, which became very successful;[2] and

(2)  the 2^nd to 5^th defendants (“D2” to “D5”) are property holding companies and they hold 9 properties in Hong Kong.  These properties were acquired with the income generated by Ling Fat.  Father and P2 resided in 2 of the properties while the other 7 properties have been leased out for an aggregate  monthly rental of HK$568,500.[3]

6.  Until the impugned resolutions passed on 10 and 11 February 2020, the shareholders and directors of the Companies were as follows:

Company	Shareholder	No.  of shares  (Shareholding)	Director
Ling Fat	Father	4,000 (40%)	Father D6 P3
	D6	3,000 (30%)
	P3	3,000 (30%)
D2	D6	7,000,000 (25%)	Father D6 P2
	P1	4,666,667 (16.66%)
	P2	5,833,333 (20.83%)
	P3	5,833,333 (20.83%)
	Tommy	4,666,667 (16.66%)
D3	D6	4,050,000 (23.82%)	Father D6 P2 P3
	P1	2,050,000 (12.05%)
	P2	3,750,000 (22.05%)
	P3	3,750,000 (22.05%)
	Tommy	3,400,000 (20%)
D4	D6	3,000,000 (25%)	Father D6 P1 P2
	P1	2,000,000 (16.66%)
	P2	2,500,000 (20.83%)
	P3	2,500,000 (20.83%)
	Tommy	2,000,000 (16.66%)
D5	D6	200,000 (25%)	Father D6 P2
	P1	133,330 (16.66%)
	P2	166,670 (20.83%)
	P3	166,670 (20.83%)
	Tommy	133,330 (16.66%)

7.  It is Ps’ case that the 5 siblings hold their shares in the Companies as trustees for Father and Mother[4], while D6 says that he holds some of the shares in D2-D5 as trustee for Mother.  Ps produced various declarations of trust executed by the 5 siblings (as trustees) and duly stamped (collectively “DoTs”).  The DoTs show that the 5 siblings held the shares described in the last column in the table on trust for Mother (collectively “Shares”):

Company	Shareholder	No.  of shares held (Shareholding)	Shares held on trust for Mother
Ling Fat	Father	4,000 (40%)	--
	D6	3,000 (30%)	--
	P3	3,000 (30%)	--
D2	D6	7,000,000 (25%)	3,499,999
	P1	4,666,667 (16.66%)	2,333,333
	P2	5,833,333 (20.83%)	2,916,666
	P3	5,833,333 (20.83%)	2,916,666
	Tommy	4,666,667 (16.66%)	2,333,333
D3	D6	4,050,000 (23.82%)	975,000
	P1	2,050,000 (12.05%)	1,025,000
	P2	3,750,000 (22.05%)	825,000
	P3	3,750,000 (22.05%)	825,000
	Tommy	3,400,000 (20%)	650,000
D4	D6	3,000,000 (25%)	1,499,999
	P1	2,000,000 (16.66%)	1,000,000
	P2	2,500,000 (20.83%)	1,250,000
	P3	2,500,000 (20.83%)	1,250,000
	Tommy	2,000,000 (16.66%)	1,000,000
D5	D6	200,000 (25%)	100,000
	P1	133,330 (16.66%)	66,665
	P2	166,670 (20.83%)	83,335
	P3	166,670 (20.83%)	83,335
	Tommy	133,330 (16.66%)	66,665

8.  The terms of the DoTs are identical and provide that:

(1)  the shares standing in the names of the trustees do not belong to them but to Mother and they hold the shares as nominees for Mother (cl. 1);

(2)  the trustees hold the shares and all dividends and interest accrued thereon upon trust for Mother (cl. 2);

(3)  the trustees, when called upon to do so by Mother, will transfer the shares to Mother or as she may direct (cl. 3); and

(4)  the trustees irrevocably appoint Mother as their attorney to insert the name of Mother or such other person(s) as she shall nominate or to make any necessary alterations or additions as regards the particulars of the shares in the transfers and to redeliver the same after such insertion, alterations or additions have been made thereto (cl. 4).   

9.  There is no dispute that before his demise, Father made all the decisions for the Companies with the assistance of D6, P2 and P3.[5]  Mother did not have involvement in the Companies.

10.  On 1 December 2015, D7 was appointed as an alternate director of Father in Ling Fat.  According to Ps, the appointment was made in light of Father’s poor health and immobility at the time.

11.  It is Ps’ case that in December 2019, they discovered that various sums totalling HK$16.7 million had been transferred away from Father’s bank accounts between October 2018 and November 2019, of which at least HK$15 million was received by D7.  This led to Ps to commencing HCMH 4/2020 on 15 January 2020 under s.7 of the Mental Health Ordinance (Cap. 136) for an inquiry on Father’s mental capacity (“MIP Proceedings”).

12.  On 20 January 2020, P1 and P3 gave notice to hold annual general meetings of D2-D5 to be held on 11 February 2020.[6]

13.  On 7 February 2020 (Friday), D6 issued a notice of board meeting of Ling Fat to be held on 10 February 2020 (Monday) for the purpose of passing a resolution to appoint D8 as additional director.  The notice was sent to Ps’ solicitors and to P3 by WhatsApp on 8 February 2020. 

14.  On 10 February 2020:

(1)  Ling Fat held the board meeting at which a resolution was passed by D6 and D7 (as alternate director of Father) to appoint D8 as an additional director.  P3 did not attend the meeting.[7]

(2)  Ps were informed that D7 had been appointed as Father’s alternate director in D2-D5. 

(3)  D6 issued notices of board meetings of D2-D5 for the purpose of passing resolutions to (a) approve the transfer of shares from Ps and Tommy to Father (pursuant to instruments of transfer dated 5 February 2020 signed by Father (collectively “ITs”)), and (b) appoint D7 as an additional director of each of D2-D5.   

15.  At the board meetings of D2-D5 held on 11 February 2020, resolutions were passed to (1) approve the transfer of shares from Ps and Tommy to Father pursuant to the ITs; and (2) appoint D7 as an additional director of D2-D5.[8]

16.  Ps say that all the resolutions passed on 10 and 11 February 2020 (collectively “Impugned Resolutions”) are invalid as they were passed in breach of the articles of associations (“Articles”) of D2-D5 which provide that an alternate director could only be appointed and be entitled to attend a board meeting in place of a director when he is or about to go abroad, but Father was present in Hong Kong at the relevant times[9].

17.  On 21 February 2020, Ps applied for and obtained an ex parte injunction from Lok J (“Injunction”) to restrain:

(1)  the Companies from giving effect to or implementing any of  the Impugned Resolutions (§§1, 3-6);

(2)  D8 from performing any act and holding out as director of Ling Fat (§2);

(3)  D7 from performing any act and holding out as director of D2-D5 (§7);

(4)  D2-D5 “whether by themselves, their servants, agents, officers or howsoever otherwise” from taking, causing or procuring “any steps or measures to act on, approve, register and/or confirm” (a) the transfer of shares in D2-D5 approved at the board meetings held on 11 February 2020, and (b) the appointment of D7 as a director of D2-D5 (§8).

(5)  D6 and Father from altering the shareholding or composition of the board of the Companies save with the express written consent of Ps or leave of the court (§9).   

18.  In the writ filed on 24 February 2020[10], Ps seek the following relief against the Companies, D6-D8 and Father:

(1)  Declarations that the Impugned Resolutions are null and void (§§1-2);

(2)  A declaration that the ITs are null and void (§3);

(3)  An injunction to restrain the Companies, D6-D8 and Father from taking, procuring or causing any steps or measures to give effect to or implement the Impugned Resolutions (§4); and

(4)  An order to rectify the register of directors of Ling Fat and the register of members of D2-D5 to give effect to the declarations in §§1-3 of the writ (§5).   

19.  The bases for invalidating the Impugned Resolutions and the ITs, as pleaded in the SOC filed on 12 March 2020, are as follows:

(1)  The ITs are invalid in that (a) they were purportedly executed by Father without the knowledge or consent of Ps and Tommy; (b) Father did not have mental capacity to enter into the ITs; (c) the ITs were not Father’s deed; and (d) the ITs were procured by the undue influence of D6 and D7 over Father (§§19-22);

(2)  The appointment of D7 as an alternate director of Father in the Companies are invalid given that (a) Father was in Hong Kong at all times after 2013; (b) Father has since 10 June 2019 ceased to have mental capacity in acting as director or signing any notes to appoint D7 as his alternate director; and (c) the majority of directors of D2-D5 did not approve such resolution (§§23-29); and

(3)  The Impugned Resolutions are invalid by reason of (a) Father’s unsound mind which resulted in vacation of his office as director of the Companies; (b) the board meetings on 10 and 11 February 2020 were inquorate as D7 was not a director at the time; and (c) no reasonable notice of the board meetings were given to Ps (§§30-34).   

20.  On 20 March 2020, Lisa Wong J continued the Injunction pending determination of Ps’ summons for continuation of the Injunction (“Continuation Summons”).  In his affirmation filed on 10 July 2020 in opposition to the Continuation Summons, D6 said that he would vote using inter alia the shares held by him on trust for Mother.[11]

21.  On 15 July 2020, D6 filed an affirmation in support of his application for letters of administration in respect of Mother’s estate.  Amongst the assets listed in the schedule are the Shares held by the 5 siblings (as described in §7 above).  The application was made without the knowledge of Ps. 

22.  Shortly before the substantive hearing of the Continuation Summons, on 24 August 2020, Ps, D6-D8 and Father filed a consent summons for continuation of the Injunction.[12]  On 27 August 2020, Au Yeung J ordered by consent (“Consent Order”) that:

(1)  the Injunction be continued “until the final determination of [MIP Proceedings] (including but not limited to the issue of the mental capacity or otherwise of [Father]) or further Order” (§1);

(2)  the Continuation Summons be adjourned sine die with liberty to restore after final determination of the MIP Proceedings (including but not limited to the issue of the mental capacity or otherwise of [Father]) (§2); and

(3)  there be liberty to apply (§3).

23.  The Consent Order was made upon the undertakings from:

(1)  Ps that until final determination of the MIP Proceedings they would not convene any general or board meetings of the Companies or take steps with a view to altering the shareholding or composition of the board or bank signatories of the Companies (“Ps’ Undertaking”); and

(2)  D6-D8 and Father that until final determination of the MIP Proceedings they would not convene any general or board meetings of the Companies or take steps with a view to altering the bank signatories of the Companies (“D6-D9’s Undertaking”) (together “Undertakings”).

24.  On 5 October 2020, letters of administration of the Estate were granted to D6 (“LoA”). 

25.  In the meantime, D6-D7 joined and opposed the MIP Proceedings.  Father instructed his own team of counsel to oppose the application for appointment of a committee to manage his finances.  Lok J varied the Injunction to allow HK$2.1 million and HK$6.4 million to be withdrawn from Father’s bank accounts to pay for his living and legal expenses.

26.  After a contested hearing which lasted for 8 days, on 27 July 2021, Lok J handed down judgment in the MIP Proceedings (“MIP Judgment”),[13] declaring Father[14] to be a mentally incapacitated person  in that he cannot remember the money he gifted in the past few years, how his monthly expenses were spent and the amount of legal expenses incurred in the MIP Proceedings[15]; and is incapable of appreciating the situation he faced in the MIP Proceedings[16] and making decisions relating to his finances[17].   

27.  By notices of appeal dated 20 August 2021 and 21 September 2021, Father and D6-D7 appealed against the MIP Judgment. 

28.  By letter dated 5 January 2022, D6 through his solicitors informed Ps that the LoA had been granted to him and requested Ps to consent to a variation of the Injunction so as to permit:

“the transmission and transfer of the [Shares] and for the approval of the board of directors of [D2-D5] for registration of the [Shares] (which beneficially belonged to [Mother, forming part of the estate of [Mother]) under the name of [D6] as the Administrator of the estate of [Mother].”

29.  In reply, Ps through Messrs. Hart Giles’ letter dated 13 January 2022, requested D6 to inter alia explain why Ps had not been notified of D6’s application for the LoA, provide the documents filed at the Registry and confirm that he agrees to appoint P1 and P3 as additional administrators of the Estate.  D6 then issued the Summons.

Discussion  

30.  The application for variation of the Injunction is made by D6 qua administrator of the Estate so as to allow him to take steps to have the Shares be registered in his name. 

31.  Mr Ronny Tong SC (leading Mr Herbert Leung and Mr Anson Tso) submits that the application should be allowed for the following reasons:

(1)  As administrator of the Estate, D6 is under a duty to collect, get in and administer the assets of the estate which include the Shares. 

(2)  By operation of law, the Shares have devolved to D6 in his capacity as administrator of the Estate.  He has an inalienable right to be registered as holder of the Shares under the articles of association of D2-D5.

(3)  Mother is not a party to, and the Shares are not the subject matters of, this action.  The Estate should not be affected by the Injunction.  The application for variation is made to avoid any suggestion that by transferring and registering the Shares in D6’s name, D6 (qua administrator of the Estate) and Ps (qua directors of D2-D5) act in breach of the Injunction or the Undertakings. 

(4)  The allegations made by Ps against D6 have been responded to.  In any event, they are irrelevant to the application which concern the Shares belonging to the Estate. 

(5)  Although Ps belatedly assert that all the shares registered in their names were gifted by Father and Mother to them, such assertion is inconsistent with their pleaded case in the SOC and should not be accepted. 

32.  Ps oppose the application.  In his skeleton argument, Mr Benjamin Yu SC (leading Mr Anthony Chan) opposes the Summons on the following grounds:

(1)  The application is an abuse of process and a breach of an agreement to which D6 is a party.  The Consent Order has “contractual force between the parties, supported by considerations from both sides in the form of their undertakings”, and D6 is only entitled to apply to the court if good grounds are shown[18] (Abuse of Process point);

(2)  The “liberty to apply” in §3 of the Consent Order does not assist D6 as the provision cannot be extended to allow variation of the Consent Order (Next Digital v Commissioner of Police [2021] 2 HKLRD 857, §5, per Wilson Chan J)[19](Liberty to Apply point); and

(3)  There are good reasons not to vary the Injunction[20] (No Good Reasons point).

33.  The Liberty to Apply point may be disposed of briefly.  I do not think that the statement in Next Media assists Ps as the order in that case was a final order.  By contrast, the Consent Order is an interlocutory order and the reference to “until … or further Order” makes it clear that the court does have jurisdiction to vary the Order.  Mr Yu confirms that it is not Ps’ stance that the Consent Order should be treated as a contract or that the court does not have jurisdiction to vary the same. 

Abuse of Process point

34.  Mr Yu submits that the Court will not entertain an application to vary an injunction or undertaking unless there has been a material change of circumstances or some other good reason such as where the judge in the original application had been misled in a material respect, or that there has been a manifest mistake, or the applicant has become aware of facts which he did not know and could not reasonably have discovered at the time of the hearing.  The principle applies whether or not the court determined the original application (Gee, Commercial Injunctions 7^th ed., §21-059; Chanel Ltd v Woolworth & Co Ltd[1981] 1 WLR 485, 492E-493B, per Buckley LJ; Orb a.r.l. v Ruhan[2016] EWHC 850 (Comm), §82, per Popplewell J (as he then was);Compania Sud Americana Da Vapores SA v Hin-Pro International Logistics Ltd [2015] 2 HKLRD 458 (CA), §§16-17).

35.  The Chanel principle is founded on the basis that an applicant has a responsibility to take a point when it is first reasonably available to him before the court such that it would be an abuse to delay taking it until a subsequent application.  The principle only applies, at any rate with full force, where no specific reservation is made before the court by the applicant (Gee, Commercial Injunctions §21-059). The position would be different if the parties had contemplated at the time of the interim order that the issues thereunder would be revisited such as where the terms of the injunction show that it was not substantively disposed of but was adjourned sine die with liberty to apply.  In such circumstances, the parties may be able to re-open the arguments afresh (Keep Bright Ltd v Super Auto Investments Ltd,HCCT 16/2010, 12 January 2012, at §45(3), per Au J (as he then was), citing Butt v Butt [1987] 1 WLR 1351 at 1353H-1354D, per Nourse LJ, 1355, per Mustill LJ; Gantenbrink v BBC [1995] FSR 162, 164-165, per Sir Donald Nicholls VC). 

36.  In the present case, the Consent Order stated that the Continuation Summons was adjourned sine die with liberty to restore after final determination of the MIP Proceedings.  Mr Yu contends that as “final determination” of proceedings includes determination of any appeals therefrom[21], it is not open to D6 to ask the court to revisit the terms of the Injunction until the appeals against the MIP Judgment are finally determined.  The argument is right insofar as it concerns §2 of the Consent Order.  However, §3 of the Consent Order expressly provides that there is liberty to apply.  This indicates that although the parties agreed that the Continuation Summons should only be heard after the final determination of the MIP Proceedings, they contemplated the possibility of, and reserved the right to, apply for variation of the Injunction and of the Undertakings if the need arises.  In light of this specific reservation, I do not think that the Chanel principle applies to D6’s application.   

37.  In any event, it seems to me that the Chanel principle only applies to the parties who participated at the earlier hearing leading to the interlocutory order.  It has no application to a third party who has not taken part in the earlier hearing or the proceedings leading to the Consent Order.  As Mr Tong submits, neither Mother nor the administrator of the Estate was a party to the action.  Nor had they taken any step in the action which resulted in the Consent Order.  As a matter of law, there is a distinction between a person being sued in his personal capacity and his representative capacity (Lemas v Williams [2013] EWCA Civ 1433, §§43, 62-63).  It is wrong to equate D6’s earlier involvement in his personal capacity with his present role as administrator of the Estate. 

38.  Mr Yu submits that Lemas is a case which concerns with issue estoppel and has nothing to do with the present application.  He emphasises that at the time the Consent Order was made, D6 must knew that he had applied for letters of administration in respect of the Estate.  However, no matter how Mr Yu puts it, the fact remains that until the Summons was issued, D6 qua administrator of the Estate has no involvement in the action and has not participated in the proceedings leading to the Consent Order.  Indeed, it would not be possible for D6 qua administrator to do so as the LoA were only granted to him on 5 October 2020.  

39.  Even if there is any proper basis to suggest that the Chanel principle applies to D6 qua administrator of the Estate (none has been identified), in my view, the grant of the LoA to D6 on 5 October 2020 constituted a material change of circumstances which entitles D6 qua administrator to apply for a variation of the Injunction.  It also provides a good reason for D6 qua administrator to seek a variation of the Injunction.  This is because the terms of the Injunction, as they now stand, have the effect of enjoining the administrator and the directors of D2-D5 from registering the Shares in the name of D6 qua administrator of the Estate. 

40.  I do not think that it is just and convenient for the Injunction to have the effect of prohibiting D6 qua administrator from taking steps to have the Shares be registered in his name in circumstances where:

(1)  all the causes of action pleaded in the SOC are concerned with the validity of the Impugned Resolutions and the ITs which, in turn, depend on whether Father had the necessary mental capacity to carry out the acts complained of by Ps;

(2)  the Shares are not the subject matters of the action and no relief is sought by any party in respect of the Shares.  To the contrary, on the basis of the pleadings filed by the parties, it is common ground that the Shares are beneficially owned by Mother and hence the Estate; and

(3)  Mother or the personal representative of the Estate is not and has never been a party to the action.  Nor have they taken any step in the proceedings leading to the Consent Order.

41.  For these reasons alone, I consider that there are good reasons for the court to vary the Injunction and to release D6 and Ps from the Undertakings so as to allow the Shares to be registered in D6’s name qua administrator of the Estate. 

No Good Reasons point

42.  In light of my conclusion on the Abuse of Process point, it is strictly speaking not necessary to consider the No Good Reasons point.  Nevertheless, as both counsel have advanced full arguments on the point, I will deal with the arguments and explain why I do not agree with Ps’ contentions.  Before I deal with counsel’s respective arguments, I shall set out the principles which are not in dispute.

43.  The court has jurisdiction to vary an injunction and release a party from the undertaking given to the court where it is just to do so (Hong Kong Civil Procedure 2022, §§29/1/34, 29/1/36). A personal representative is under a duty to take steps to get in the estate (Williams, Mortimer & Sunnucks on Executors, Administrators and Probate, 21^st ed., §42-20).  A personal representative is entitled to full ownership of the property of the deceased’s estate, without any distinction between legal and equitable interest (Karupayee Ammal (Administratrix of the Estate of Karupaya Selvaraj, Deceased) v G-Toys Manufacturing Ltd [2020] 6 HKC 59 at 63B;Probate and The Administration of Estate: A Practical Guide, 2^nd ed.,§20-32).

44.  As far as company law is concerned, the position of a personal representative and his entitlement to have the shares or interest held by the deceased in a company has been summarised in G-Toys Manufacturing Ltd [2020] 6 HKC 59, §§25-29:

“25. It is well established that upon the death of a member, the shares or interest he held in a company devolves by operation of law to his personal representative. This is generally described as ‘transmission’ of shares, which is to be distinguished from a ‘transfer’ of shares from a member to another person, which requires execution of a proper instrument of transfer (see s 150 of the Ordinance).

26. The personal representative is entitled to full ownership of the property of the deceased’s estate, without any distinction between legal and equitable interest. He is to hold the property for the purpose of carrying out his duties and function as administrator, subject to the directions of the Court (Re Yuen Kiu Kwan [2009] 3 HKLRD 371, [2009] HKCU 569, §30, per Kwan J (as she then was). That the personal representative is recognised by law as the full owner of the shares or other interest held by a deceased member in a company is enshrined in section 153 of the Ordinance, which provides:

‘A transfer of a share or other interest of a deceased member of a company by his or her personal representative is as valid as if the personal representative had been the registered holder of that share or interest at the time of execution of the instrument of transfer.’

…

28.  Registration or refusal of registration of shares transmitted by operation of law is governed by s 158, which provides as follows:

‘(1) This section applies if the right to shares is transmitted to a person by operation of law and the person notifies the company in writing that the person wishes to be registered as a member of the company in respect of the shares.

(2)  Within 2 months after receiving the notification the company must either—

(a)  register the person as a member of the company in respect of the shares; or

(b)  send the person notice of refusal of registration.

(3)  If a company refuses registration, the person may request a statement of the reasons for the refusal.

(4)  If a person makes a request under subsection (3), the company must, within 28 days after receiving the request—

(a)  send the person a statement of the reasons; or

(b)  register the person as a member of the company in respect of the shares.

(5)  ...’

29.  If a company refuses registration under s 158, the person to whom the right to the shares was transmitted may apply for an order under s 159, and the court may order the company to register the person as a member of the company in respect of the shares, if the application is well founded.”

44.              Where the articles of association of a company give the power to the directors to refuse registration, such power must be exercised bona fide in the interests of the company and not for any collateral purpose (Re Wai Hing Enterprises Ltd, HCMP 2915/2014, 2 December 2015, §18, per Au-Yeung J; Re Hansby Company Limited, HCMP 4610/2003, 12 May 2004, §§10-13, per Barma J (as he then was)).  However, unlike a transfer of shares to a third party where the directors have the power to refuse the transfer without giving any reason, the right of a personal representative to require the company to register the shares transmitted to him by operation of law is enshrined in s.158 of the Companies Ordinance (Cap. 622) and the directors are expected not to refuse registration in the absence of any valid ground to do so (Re Yuen Kiu Kwan, §§36-37; G-Toys, §44).   

45.  In the case of D2-D5, it is not in dispute that the relevant versions of Table A in the First Schedule to the former Companies Ordinance (Cap. 32), as adopted by article 1 of the Articles of D2-D5, contain regulations which entitle a personal representative of a deceased member to be registered as shareholder.  For example, in the case of D2, regulation 30 of Table A provides as follows:

“Any person becoming entitled to a share in consequence of the death or bankruptcy of a member may, upon such evidence being produced as may from time to time properly be required by the directors and subject as hereinafter provided, elect either to be registered himself as holder of the share or to have some person nominated by him registered as the transferee thereof, but the directors shall, in either case, have the same right to decline or suspend registration as they would have had in the case of a transfer of share by that member before his death or bankruptcy, as the case may be.”

46.  Mr Yu submits that for the following reasons the court should refuse the variation sought by D6:

(1)  The appointment of D6 as administrator does not obviate the risk of dissipation of assets by D6-D8, which was the basis upon which the Injunction was sought and obtained.  Ps have adduced cogent evidence to show that substantial assets had been dissipated from the Companies.[22]  The independent accountant appointed by Lok J to assist the Official Solicitor as Interim Committee was unable to obtain any useful information from D6.

(2)  D6’s duty to collect and get in any assets of Mother including the Shares is an irrelevant consideration as the purpose of the Injunction is to preserve the assets in which other family members (i.e. Father and his 5 children) have an interest in. Mother (and the Estate) is not a party to this action.  Her interest, as advanced on her behalf by D6, to vary the Injunction is contrary to, and should not be permitted to trump, the interest of Father and his estate, i.e.  to maintain the status quo.

(3)  The interest of Father (and now his estate) conflicts with D6’s personal interest and his stance taken qua administrator of the Estate in that Father’s purported stance[23] is that all the shares in Ling Fat and D2-D5 registered in the names of his 5 children were held on trust for him and Mother, whereas D6 claims that his shares in Ling Fat and those registered in P3’s name belong to them absolutely; and he is not Father’s trustee for the shares of D2-D5.[24]

(4)  D6’s interest also conflicts with the interest of Ps and Tommy as D6 claims that the shares in D2-D5 are held by the 5 siblings on trust for Father and Mother, whereas Ps and Tommy say that when the shares in D2-D5 were transferred to the 5 siblings, Father and Mother told them that the shares were gifts to them.  According to Mr William KS Ngai, who helped Father with the drafting, the purposes of the DoTs were first, to avoid paying estate duty and second, if any of the 5 siblings were to misbehave, Father could take back his or her shares.  But Father never enforced the second purpose.[25]

47.  In view of the “serious conflict” between D6’s personal interest and the interest the Estate, D6 is liable to be removed as a personal representative is not permitted to put himself in a position of conflict (Chan Yeuk Nam v Chan Yeuk Shan Isabella[2021] HKCFI 3649 at §27, per Wilson Chan J; Kong Colin Chung Ping v Kong Wing On, HCMP 2045/2012, 24 February 2015, §§19-20, per DHCJ Le Pichon).  That there may be legal redress against any misconduct by an administrator[26] is not to the point.  The question is whether the court should grant the variation sought in the circumstances of this case, which it plainly should not for the reasons identified above. 

48.  I am unable to agree with Mr Yu’s submissions. 

(1)  As stated in §40 above, the issues in this action only concern the validity of the Impugned Resolutions and the ITs.  There is no proper basis for Ps to expand or characterise the issues as ones which concern the assets in which the family members have an interest. 

(2)  It is indisputable that the Injunction was obtained and granted on the basis of the causes of action advanced by Ps which, they say, give rise to a serious issue to be tried on the validity of the Impugned Resolutions and the ITs.  The Injunction was granted to preserve the status quo pending determination of such issues.  There is no basis to suggest that the purpose of the Injunction was to preserve any other assets in which the family members have an interest.

(3)  There is no issue about the ownership of the Shares.  Although Ps belatedly assert, in their reply affirmations, that all the shares registered in the names of the 5 siblings were gifted to them, such assertion is inconsistent with their case pleaded in §6 of the SOC.  It is also inconsistent with the contents of the DoTs where the 5 siblings confirmed that they hold the Shares on trust for Mother.  As matter now stands, I do not think it is open to Ps to suggest that the Shares are not assets of Mother or that the administrator is not entitled to collect and get in such Shares. 

(4)  Even if (which I do not think is the case) there is any proper basis to suggest that the purpose of the Injunction is to prevent any dissipation of the assets of the Companies, it is clear that the variation sought by D6, if allowed, would not have the alleged effect of putting the Companies or their assets at risk of dissipation.  This is because after Father’s demise, Ps have control over the boards of the Companies in that (a) they constitute 50% or majority of the directors of the Companies (see §6 above); and (b) any withdrawals of monies from the bank accounts of the Companies need to be authorised by P2 and D6 jointly[27].

(5)  Further, D6 offers to provide an undertaking to the court, as suggested by Ps[28], in the following terms:

“that he would not cause any steps to be taken to transfer or withdraw funds from any of [the Companies] save for the legitimate purposes of their business and a further undertaking that he would ensure that the assets in [the Companies] would not be transferred out or dissipated for purposes other than the bona fide purposes of each of the companies.” (“Proposed Undertaking”)

(6)  As to the so-called conflict of interest, I fail to see its relevance given that D6 accepts that he holds the shares described in the relevant DoTs on trust for Mother.  Whether D6 takes a different view as regards the ownership of the other shares he holds in Ling Fat and D2-D5 would not put him in a position of conflict vis-à-vis the Estate. 

49.  For the reasons set out above, I consider that it is just and convenient for the court to vary the Injunction so as to allow D6 qua administrator of the Estate to take steps to have the Shares be registered in his name.  I accept the Proposed Undertaking given by D6 and make an order in terms of §§1-2 of the Summons.

50.  As for costs, I make a costs order nisi that:

(1)  the costs of the amendment summons be paid by D6 to Ps in any event; and

(2)  save as aforesaid, the costs of and occasioned by the Summons be paid by Ps to D6, to be taxed if not agreed with certificate for 2 counsel.