RE AKAI HOLDINGS LTD.

HCCW 49/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO.49 OF 2000

(Heard together)

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D E C I S I O N

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1. There are two summonses before me in relation to the companies known as Kong Wah Holdings Ltd ("Kong Wah") and Akai Holdings Ltd ("Akai") formerly known as Semi-Tech (Global) Ltd.

2. The summons in respect of Kong Wah Holdings Ltd is for an order that the resignation of Mr Damien Hodgkinson as a joint and several liquidatior of the Company be accepted and that Mr Nicholas Timothy Cornforth Hill be appointed as liquidator of the Company jointly and severally with Mr Fan Wai Kuen and Mr Craig Christensen.

3. The summons in relation to Akai Holdings Ltd is for an order that Mr Hill be appointed as a liquidator of the Company jointly and severally with Mr Fan and Mr Christensen.

4. The relevant legislation in relation to the resignation and the appointment of liquidators appointed by the court are as follows. Resignations are dealt with in Rule 154 of the Companies Winding-up Rules which provides that:

"A liquidator who decides to resign his office shall summon separate meetings of the creditors and contributories of the company to decide whether or not the resignation shall be accepted. If the creditors and contributories by ordinary resolutions both agree to accept the resignation of the liquidator, he shall file with the Registrar a memorandum of his resignation and shall send the notice thereof to the Official Receiver and the resignation shall thereupon take effect. In any other case, the liquidator shall report to the court the result of the meetings and shall send a report to the Official Receiver and thereupon the court may, upon the application of the liquidator or the Official Receiver, determine whether or not the resignation of the liquidator shall be accepted, and may give such directions and make such orders as in opinion of the court shall be necessary."

5. In relation to the appointment of a liquidator after a previous liquidator has resigned, that is governed by Rule 45(7) of the Companies Winding-up Rules, which provides that:

"If a liquidator in a winding-up by the court shall...resign, another liquidator may be appointed in his place in the same manner as in the case of a first appointment, and the Official Receiver shall, on the request of not less than 1/10th in value of the creditors or contributories summon meetings for the purposes of determining whether or not the vacancy shall be filled; but none of the provisions of this rule shall apply where the liquidator is released under section 205 of the Ordinance in which case the Official Receiver shall remain liquidator."

Rule 45(2) provides that:

"Upon the result of the meetings of creditors and contributories being reported to the court, the court may, if the meeting of creditors and the meeting of contributories have each passed the same resolutions, or if the resolutions passed at the two meetings are identical in effect, upon the application of the provisional liquidator, forthwith make the appointments necessary for giving effect to such resolutions. In any other case, the court shall, on the application of the provisional liquidator fix a time and place for considering the resolutions and determinations (if any) of the meetings, deciding differences (if any), and making such order as shall be necessary."

Section 196(3) of the Ordinance provides that:

"A vacancy in the office of liquidator appointed by the court shall be filled by the court."

6. In the present case, Mr Hodgkinson, having been appointed a joint and several liquidator of both companies, has indicated his wish to resign to return to Australia to run the family business upon a recent bereavement.

7. As far as the meetings of the creditors and the contributories of the companies are concerned, meetings were summoned on 28 September 2001. In relation to Akai, both its creditors and contributories have accepted the resignation. In relation to the Kong Wah, only the creditors have accepted the resignation and the contributories have abstained from voting. It does not appear from the affidavits before me whether any reasons were given for that abstention and if so, what those reasons were.

8. In relation to the Official Receiver's position, he has not opposed the resignation and the Supreme Court of Bermuda has accepted the resignation. It is clear, in my view, in the above circumstances, that it would be right for this court to accept Mr Hodgkinson's resignation pursuant to Rule 154.

9. In relation to the appointment of Mr Hill to take Mr Hodgkinson's place, the creditors of the companies have approved Mr Hill's appointment but that has not been approved by the contributories. However, the contributories have not suggested any alternative person to replace Mr Hodgkinson. This hearing has been advertised and I have seen the advertisement exhibited in the bundles. No evidence has been submitted by any of the contributories, nor has anyone from the contributories appeared in court this morning to make any submissions, against the appointment of Mr Hill. Mr Hill is an experienced involvency practitioner and he is in the same firm as Mr Hodgkinson. Mr Glen, on behalf of the Official Receiver has not objected to the appointment of Mr Hill and the Supreme Court of Bermuda has also accepted Mr Hill's appointment.

10. In my view, it is clearly in the interest of the companies, both creditors and contributories, that there should be consistency in the appointment of liquidators and this is particularly so when no alternatives have been suggested and no evidence has been put before me against Mr Hill's appointment to take Mr Hodgkinson's place. Therefore, I take the view that it would be suitable to appoint Mr Hill to fill the vacancy caused by Mr Hodgkinson's resignation as a joint and several liquidator of both Companies.

11. In respect of both summonses, I would also give the following additional directions: - that notice of the resignation of Mr Hodgkinson and appointment of Mr Hill be advertised in one English language newspaper and one Chinese language newspaper within 14 days of this order. It has also been indicated to me in the summonses and the affidavits that no order as to the costs of this application would be sought and no charges would be made by Mr Hodgkinson or Mr Hill or any of the other liquidators in relation to the present application.