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HCMP 1712/2024
[2025] HKCFI 5178
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO 1712 OF 2024
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IN THE MATTER of section 42 of the Companies Ordinance, Cap 622 and Order 102, rule 2 of the Rules of the High Court, Cap 4A |
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and |
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IN THE MATTER of SUPER TALENT TECHNOLOGY LIMITED (超綽科技有限公司) (“the Company”) |
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BETWEEN
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SUPER TALENT TECHNOLOGY LIMITED |
Plaintiff |
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and |
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REGISTRAR OF COMPANIES |
1st Defendant |
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WANG SHUNFA |
2nd Defendant |
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S-Q BUSINESS (HK) LIMITED |
3rd Defendant |
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| Before: |
Deputy High Court Judge Gary CC Lam in Chambers (Open to public) |
| Date of Hearing: |
14 October 2025 |
| Date of Decision: |
14 October 2025 |
| Date of Reasons for Decision: |
30 October 2025 |
| Date of Decision on Costs: |
30 October 2025 |
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REASONS FOR DECISION
AND
DECISION ON COSTS
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I. INTRODUCTION
1. By Originating Summons filed on 9 September 2024 (the “Originating Summons”), pursuant to section 42 of the Companies Ordinance (the “Ordinance”), the Plaintiff (the “Company”) sought to remove or alternatively rectify the following six documents:-
(1) Notice of Change of Address of Registered Office (Form NR1) filed on 20 February 2024 (the “Form NR1”);
(2) Annual Return made up to 11.11.2023 (NAR1) filed on 20 February 2024 (the “Form NAR 1”);
(3) Notice of Change of Company Secretary and Director (Appointment/Cessation) (Form ND2A) filed on 29 February 2024 (the “Form ND2A”);
(4) Notice of Resignation of Company Secretary and Director (Form ND4) filed on 29 February 2024 (the “Filed Form ND4 No 1”);
(5) Notice of Resignation of Company Secretary and Director (Form ND4) filed on 29 February 2024 (the “Filed Form ND4 No 2”); and
(6) Notice of Change of Company Secretary and Director (Appointment/Cessation) (Form ND2A) filed on 18 March 2024 (the “Form ND2A”).
2. During the hearing, Ms Alison Choy, counsel for the Company, and Mr Kevin Lau, counsel for the 2nd Defendant, made submissions mainly on costs. In order for me to know any without prejudice as to costs positions of the parties, I granted the relief by way of removal during the hearing, and after that more submissions on costs were made. These are my reasons for granting the substantive relief and my decision on costs.
II. BACKGROUND
3. The 2nd Defendant is a 70% shareholder of the Company, while Mr Chiu Wang Ip (“Chiu”) is the shareholder holding the remaining 30%. Lee Yee Kwan (“Lee”) was appointed as director on 10 November 2019, while her brother-in-law Mr Lau Tak Wing (“Lau”) was appointed as director on 3 August 2012. They have been the only directors of the Company.
4. In about early 2023, the Company was deregistered by Form NDR1 (Application for Deregistration of Private Company or Company Limited by Guarantee) signed by Lee. After the dissolution, the 2nd Defendant engaged solicitors (not the 2nd Defendant’s current solicitors) to make an application to restore the Company under sections 765 of the Ordinance in HCMP 1291 of 2023. Without opposition from the Registrar of Companies, a court order to restore the Company (the “Restoration Order”) was granted on 26 January 2024. Apparently, there is dispute between the Company and the 2nd Defendant as to whether there was the deregistration and then the restoration, but the dispute does not concern me here.
III. THE PLAINTIFF’S EVIDENCE
5. The Company’s evidence, by Lee, the Company’s director and company secretary, is that none of the above Forms were filed with any proper resolutions and authorisation of the board of directors.
6. In relation to the Filed Form ND4 No 1 and the Filed Form ND4 No 2, Lee specifically points out that the signature purported to be hers on the Filed Form ND4 No 1 and the signature purported to be Lau’s on the Filed Form ND4 No 2 were not theirs. In this sense, Lee is right to describe define these two forms with reference to the word “Forged”.
7. For the other four Forms, however, there is no allegation of fraud or forgery, but Lee still defines these four Forms still with reference to the word “Forged”. Collectively, Lee refers to all the six Forms as the “Forged Documents”.
IV. THE 2ND DEFENDANT’S EVIDENCE
8. The 2nd Defendant’s evidence is that upon the grant of the Restoration Order, he engaged a PRC company named 信達（深圳）國際商務諮詢顧問有限公司 (“Shenzhen Xunda”) to take steps to restore the Company. According to the 2nd Defendant, he only came to know upon the commencement of the present proceedings that Shezhen Xunda then engaged 深圳市世瑞商務諮詢有限公司 (“Shenzhen Shirui”), which in turn engaged the 3rd Defendant, to take the steps to restore the Company. One wonders what steps would be necessary upon the grant of the Restoration Order such that the 2nd Defendant had to engage a PRC company rather than the solicitors representing the 2nd Defendant in HCMP 1291 of 2023, and one wonders why three layers of agents would be necessary for such a straightforward matter presumably including filing of the Restoration Order with the Companies Registry and perhaps communication with the Companies Registry.
9. Be that as it may, the gist of the 2nd Defendant’s evidence is that he was asked by Shenzhen Xunda to sign certain forms, and for the other forms, it was signed by the 3rd Defendant. Further, while some of the forms stated that the 2nd Defendant himself was the presenter, he did not know that he was filing the forms. His evidence is supported by the evidence of Su Zunfeng (“Su”), the legal representative of Shenzhen Xunda.
10. Specifically, in relation to the Filed Form ND4 No 1 and the Filed Form ND4 No 2, Su’s evidence is that:-
(1) On 19 February 2024, he sent to the 2nd Defendant a Form ND4 in relation to Lee’s resignation and a Form ND4 in relation to Lau’s resignation prepared by “Shenzhen Shirui and/or the 3rd Defendant” (see §7 of Su’s Affirmation) and upon Shenzhen Shirui’s instructions, asked the 2nd Defendant to sign those forms.
(2) The forms bore the 2nd Defendant’s own signatures, although under the signatures, respectively, Lee’s name and Lau’s name, not the 2nd Defendant’s, were printed on the forms. These two forms are not the Filed Form ND4 No 1 and/or the Filed Form ND4 No 2. I shall refer to them as the “Non-filed Form ND4 No 1” and “Non-filed Form ND4 No 2”.
11. In his Affirmation, the 2nd Defendant explains that out of misunderstanding (“出於誤會”) (see §15 of the 2nd Defendant’s Affirmation), he signed on these two Non-Filed Forms. As to what “misunderstanding” that led to the 2nd Defendant to attend his signatures above the printed name of Lee and the printed name of Lau, there is no explanation at all. There is also no explanation as to what happened to these Non-filed Forms, and why, instead, it was the Filed Form ND4 No 1 and the Filed Form ND4 No 2 that were filed with the Companies Registry. The 2nd Defendant is simply silent on this.
12. It appears that by explaining that there were three layers of agents, and the fact that he was not the presenter of the Forms as stated therein, the 2nd Defendant suggests that the Filed Form ND4 No 1 and the Filed Form ND4 No 2 were filed and/or prepared by any of the agents of the three layers, and that he had no fraudulent intent at all. However, there is no evidence that the 2nd Defendant has ever approached and attempted to make any enquiry with Shenzhen Xunda (which has made an Affirmation on his behalf), Shenzhen Shirui or the 3rd Defendant. Nor is there any evidence that the 2nd Defendant had any difficulty in approaching any of them in this regard. It is so even in the clear accusation by the Plaintiff that the Filed Form ND4 No 1 and the Filed Form ND4 No 2 were forged.
13. It remains for me to say that the 2nd Defendant has no evidence to traverse the Company’s evidence that all the six Forms in question were filed without any board resolutions and without the Company’s authority.
V. SUBSTANTIVE RELIEF
14. On the evidence, I was satisfied that all the six Forms were filed without any board resolutions and without the Company’s authority, and that the proper relief was to remove all these Forms. This was the minimum that was sufficient to sustain the Company’s application. So I made the substantive order at the hearing.
15. As to whether the Filed Form ND4 No 1 and the Filed Form ND4 No 2 were forged or not, this turned out to be an issue in relation to costs, to which I shall not turn.
VI. COSTS
16. Ms Choy seeks costs of the Originating Summons on an indemnity basis. Mr Lau opposes, and proposes that the Plaintiff should pay the 2nd Defendant some of the costs on an indemnity basis.
17. In my view, the starting point is that the present application is necessitated entirely by at least the fault of the agents engaged by the 2nd Defendant, and for costs purposes, there is no difference between the fault of the agents and the fault of the 2nd Defendant, given that they were the 2nd Defendant’s agents and any of their fault should be imputed to the 2nd Defendant. Whether the 2nd Defendant would like to make any claim against the agents is not an issue before me, but one point is clear: the Company should not be made responsible to swallow the costs of the present application.
18. The taxation basis should be on an indemnity basis because there was simply no basis whatsoever, not even any reasonable misunderstanding, for the filing of the Forms. The Company simply had no choice but to make the present application to put the matter right. I see no reason why the Company would have to bear any costs, while on the other hand, given that it was the 2nd Defendant’s fault, I see every reason why the 2nd Defendant should indemnify the Company against the costs of the application necessitated by the 2nd Defendant.
19. The above is the starting point. However, in my view, when the 2nd Defendant filed his evidence (namely, the Affirmation of Su and his Affirmation), upon proper consideration, the Company should realise that there was no evidence at all to answer the Company’s evidence that the Forms were filed without any board resolution and without the Company’s authorisation, and therefore, that there was no need to pursue any allegation of fraud in order to obtain the substantive relief. The Company should have stopped there. Whether the 2nd Defendant admitted or denied any allegation of fraud should not be any basis for the Company to incur more costs for the purposes of the present application. Therefore, the Company should be disallowed from recovering the costs incurred thereafter. It is, in my view, no answer from the 2nd Defendant that he took a neutral stance and so the Company should not even have considered his evidence. It is not unusual that when a party alleges to take a neutral stance but files evidence at the same time, the net effect would become an opposition, and therefore, it was perfectly proper and necessary for the Company to consider the 2nd Defendant’s evidence.
20. That said, I disagree with Mr Lau that the Company should pay to the 2nd Defendant the costs after the 2nd Defendant’s evidence:-
(1) Given the unsatisfactory quality of the evidence from the 2nd Defendant in relation to the Filed Form ND4 No 1 and the Filed Form ND4 No 2 as pointed out in §§11-12 above, it was entirely reasonable for the Company still to maintain the allegation of fraud. In fact, the Company simply described what were stated and signed in those two Forms and what not. On such objective evidence, it is entirely reasonable for the Company to implicate that the 2nd Defendant committed fraud.
(2) Insofar as the other Forms are concerned, although the Company uses the word “Forged” to define those Forms, it is clear to any legally trained eyes that there was no allegation of fraud (as opposed to falsity). To say that because they use the word “Forged” and so they are making an allegation of fraud is a reading out of context, ignorant of the substance and without basis.
21. Any costs incurred by the 2nd Defendant after the 2nd Defendant’s evidence, in my view, remain on the footing of the above two reasons. Therefore, such costs were incurred for no good purposes, and should also be disallowed.
22. As for the hearing before me, on a broad brush approach, I apportion 50% of the hearing to the substantive relief, for which as I opined above, the Company would have to pursue as a result of the 2nd Defendant’s fault. Following the same logic, the 50% of the hearing should be awarded to the Company on an indemnity basis.
23. For the remaining 50% which is for the allegation of fraud, following the same logic, the costs should also be disallowed.
24. Therefore, the appropriate costs order would be:-
(1) The 2nd Defendant shall pay the Company (a) the costs of and occasioned by the Originating Summons up to and including Su’s Affirmation and the 2nd Defendant’s Affirmation filed herein, and (b) 50% costs of the hearing (including costs of the preparation for the hearing) on 14 October 2025, on an indemnity basis;
(2) There shall be no order as to costs incurred after Su’s Affirmation and the 2nd Defendant’s Affirmation filed herein, save and except for the 50% costs of the hearing as provided in §(1) above.
25. During the hearing, Mr Lau handed up without prejudice correspondence between the parties and submitted that the costs order which I tentatively proposed during the hearing along the line above would not beat the 2nd Defendant’s without prejudice offer made on 2 October 2025 (12 days before the hearing) that the 2nd Defendant shall pay the costs of the whole Originating Summons to the Plaintiff on a party-and-party basis. One may have to come to every dollar and cents before one can really know whether that offer would be better or worse. However, that offer was attached with a condition, namely, an undertaking not to pursue any allegation of fraud made in the present proceedings. The counter-offer made by the Company on 6 October 2025 was that allegation of fraud would not be pursued only in the present proceedings “but not further or otherwise or in any other proceedings” and some other proposals.
26. In my view, with the difference of the basis for taxation (party-and-party in the offer while indemnity as I would propose), I cannot say the 2nd Defendant’s offer was better than my proposed costs order above from the Company’s perspective. I also cannot say that the 2nd Defendant’s offer was better when there was the undertaking attached to the offer. The offer was also made very late which in the overall scheme of things, would not make much difference in terms of costs of the hearing. Having considered all these in the whole, I come to the view that the without prejudice correspondence does not affect my view on costs.
27. Therefore, I make a costs order in terms of §24(1) and (2) above. I also order summary assessment on paper. For that purpose, the Company shall lodge and serve a statement of costs allowed within 7 days from today and the 2nd Defendant shall lodge and serve a list of objections within 7 days thereafter.
28. It remains for me to thank Ms Choy and Mr Lau for their assistance.
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(Gary CC Lam)
Deputy High Court Judge
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Ms Alison Choy, instructed by Zhong Lun Law Firm LLP , for the Plaintiff
The attendance of the 1st Defendant was excused
Mr Kevin Lau, instructed by Yu, Chan & Yeung, for the 2nd Defendant
The 3rd Defendant was not represented and did not appear
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