RE EVERGREEN INTERNATIONAL HOLDINGS LTD

HCCW 312/2020

[2021] HKCFI 2694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP PROCEEDINGS NO 312 OF 2020

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D E C I S I O N

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1.  I have before me a petition to wind up the Company which is incorporated in the Cayman Islands and listed on the Main Board of the Stock Exchange of Hong Kong. As is common the Company holds the ultimate asset owning and operating entities that constitute its business in the Mainland through intermediate subsidiaries incorporated in the British Virgin Islands.

2.  When the matter came on before me this morning, I was told that the Company and relevant creditors had come to an accommodation, as a result of which the petition was to be dismissed.  The formal dismissal will be pronounced on Monday 6 September 2021.  There are also two substitution applications that had been issued one of which was withdrawn by consent, the other I dismiss.  The details are not relevant.

3.  The reason I am producing short reasons is because there was one issue of some interest that Mr Ng, on behalf of one of the creditors applying for substitution, had intended to advance, that concerned whether or not certain observations of Ma CJ and Lord Millett NPJ in Kam Leung Sui Kwan v Kam Kwan Lai[1], constituted a finding that binds the lower courts and had the consequence that my decision in Re Grand Peace Group Holdings Limited[2] concerning the exercise of in personam jurisdiction over directors of a foreign incorporated company is wrong.  As the issue has not been argued before me, it is not a matter that I needed to decide and it would be inappropriate for me to express any view other than the one that it is evident from Grand Peace itself, namely, that the Court of Final Appeal’s decision was not a barrier to me reaching the decision that I did in Grand Peace.

4.  However, having thought about the matter in preparation for the hearing it does seem to me that if a party wishes to advance a similar argument to the one that I had anticipated would be advanced by Mr Ng, at least the following issues would need to be fully explored: (1) What precisely is it suggested the Court of Final Appeal determined which is relevant; (2) as it would appear to be clear from [20] and [32] of the decision that the Court of Final Appeal’s decision was only concerned with whether or not the first core requirement was satisfied, what if any is the justification for reading [39] of the decision as relevant to the second core requirement; and (3) a rather more complicated issue, namely, whether it is material that as the decision of the Court of Final Appeal concerned a solvent company and a dispute between ultimate beneficial owners, all of whom were resident in Hong Kong, the same considerations apply in determining the matters considered in detail in Grand Peace. This is not to suggest that these are all the issues that would need to be explored, but it seems to me that they certainly would be amongst the more prominent ones.