LEUNG TAT KIN, ANTHONY AND ANOTHER v. THE REGISTRAR OF COMPANIES

HCMP 816/2025

[2025] HKCFI 3507

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 816 OF 2025

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D E C I S I O N

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I. INTRODUCTION

1.  The 1^st Applicant is the sole director of the 2^nd Applicant (the “Company”). By Amended Originating Summons filed on 9 June 2025, they seek to remove the following documents (the “Documents”) from the Companies Registry:-

(1)  Special and Ordinary Resolutions of the Sole Member filed on 19 February 2025 (the “Resolution”); and

(2)  Form NW3 (Notice of Appointment of Liquidator or Provisional Liquidator) filed on 19 February 2025 (the “Form NW3”).

2.  Alternatively, they seek to rectify the Documents.

II.  GROUNDS OF THE APPLICATION

3.  The ground for the application is that the Resolution was meant to be a members’ resolution under section 228(1)(b) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) (the “Ordinance”). However, the Resolution was signed by the 1^st Applicant, who was not a member but a director only, and thus is invalid from the beginning. The sole member is the 1^st Applicant’s son, but he did not sign it at all. Further, the Form NW3, hinging upon a valid winding up, is also invalid because there had not been any proper resolution to voluntarily wind up the Company.

4.  In my view, given the ramification of a winding up of a company, the requirement for voluntary winding up must be strictly observed. A members’ resolution is required for a voluntary winding up under section 228 of the Ordinance. In the present case, there is no evidence of any physical meeting, and the Resolution is a written resolution. Therefore, when a non-member signs the Resolution, it was not a members’ resolution. Whatever the intention of the sole member may have been, he did not sign the Resolution, and so no resolution has been validly passed. It follows that the Resolution is not valid.

5.  I would not accept that there was any physical meeting because it is inherently improbable that if the member attended the physical meeting, he would then have forgotten to sign the resolution of that meeting at all, so much so that the resolution was filed with the Companies Registry.

6.  I should add that if members or a sole member could find it easy to say that they or he had actually intended to and did pass a resolution (whether in their mind or at some venue) but just that the minutes were signed by some wrong person(s), and the Court would then have to give effect to such resolutions retrospectively, it would be easy for abuse of section 42 application. In my view, the Court has to be very cautious in such circumstances.

7.  Therefore, in my view, there was no valid Resolution, no valid voluntary winding up and no valid appointment of liquidators. I shall therefore declare the Documents to have been invalid, as sought by the 1^st and 2^nd Applicants (the “Applicants”).

8.  Despite the invalidity of the Documents, the Applicants indicated that they would prefer rectification rather than removal of the Resolution and Form NW3, whereby an amended resolution (the “Amended Resolution”) signed by the sole member shall be filed, and an amended Form NW3 (the “Amended Form NW3”) deleting the appointment of the liquidator shall be filed essentially leaving it blank. However, the Amended Resolution would give false information to the public that the Resolution had been validly passed but just that someone wrong signed the Resolution. As regards the Amended Form NW3, the amendment is to leave the form blank but the existence of this item on the register may still give a false impression to the public that the Company has somehow been validly voluntarily wound up.

III.  CONCLUSION

9.  In my view, the right course in the circumstances is to, and so I do, order removal of the Documents. If the Company would like to voluntarily wind up itself, it could go through the necessary procedure correctly.

10.  The Registrar of Companies seek costs. The present application arises from the Applicants’ own fault. Further, the Applicants requested the Registrar of Companies to advise what they could do if they would like to rectify rather than remove the Documents. As shown by the 2^nd Statement filed on 19 June 2025 by the Registrar of Companies, it had to consider the cases cited by the Applicants and explain the matter in some detail. In the circumstances, I agree that the Applicants should pay the Registrar of Companies costs of the present application, and I so order. The costs have been agreed at HK$7,540.

11.  It remains for me to thanks Mr Jason Wong, counsel for the Applicants, for his assistance.