THE JOINT & SEVERAL LIQUIDATORS OF KONG WAH HOLDINGS LTD (IN COMPULSORY LIQUIDATION) V. [Respondents]

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

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BETWEEN

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AND

HCCW 50/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO. 50 OF 2000

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and

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(Heard together)

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D E C I S I O N

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1.  This is an application taken out by the liquidators of Kong Wah Holdings Limited (“Kong Wah”) and Akai Holdings Limited (“Akai”)(collectively “the Companies”) in each of the proceedings against [no.] respondents under section 221 of the Companies Ordinance, Cap. 32.

2.  The respondents are [position] of [company].  As I am not satisfied that the documents served on the [no.] respondent [respondent], at her last known address would have come to her attention, I have ordered that the application against the [no.] respondent be adjourned sine die with liberty to restore.

3.  The [no.] respondent, [respondent], has been residing in Canada.  On 8 October 2005, I granted leave for service of the summons and the supporting evidence to be effected on the [no.] respondent out of the jurisdiction at an address in Toronto, Ontario.

4.  According to the affidavit of the process sever, although he was unable to effect personal service of these documents on the [no.] respondent, the documents delivered to the address known to the liquidators in Canada have not been returned.  I am satisfied in the circumstances that the application would have come to the notice of the [no.] respondent.

5.  The [no.] respondent held the following positions within the [company].  He was an [position] of [company] from 1987 to November 1999.  He was a [position] and the [position] of [company] since 1987 until after [company’s] bankruptcy filing on [date], and he was a [position] and the [position] of [company] from August 1991 to December 1997.  He also held various directorships in the [company] and was [company’s] [level of position] in the Canadian office.

6.  In view of his long term position as an [position]of [company], the liquidators believe the [no.] respondent to have substantial involvement in the affairs and dealings of the Companies, their subsidiaries and associated companies and that he should be in a position to materially assist the liquidators in their investigations and reconstituting the Companies’ knowledge.

7.  The liquidators had attempted to contact the [no.] respondent including through his lawyers in the United States.  There was no response from him.  Letters of the liquidators and their solicitors were sent to the [no.] respondent’s address in Toronto dated 5 March 2004, 21 June 2004 and 9 November 2004.  The [no.] respondent did not reply.

8.  In November 2004, one of the liquidators Mr Borrelli visited the [no.] respondent’s house in Toronto to try to locate him.  He left a note for the [no.] respondent to contact him, but the [no.] respondent had not done so.

9.  The liquidators have made all reasonable efforts to enlist the [no.] respondent’s help on a voluntary basis but he was unwilling to respond.  The liquidators have no alternative but to seek an order under section 221.

10.  I am satisfied that the liquidators have established a reasonable need to examine the [no.] respondent.  I have taken into account the substantial collapse of the Companies, the paucity of the books and records available to the liquidators, and the lack of meaningful assistance of former directors, employees and advisers of the Companies.

11.  The topics on which the liquidators think the [no.] respondent would be able to provide assistance have been set out in paragraph 37 of the 9^th affidavit of Mr Borrelli.

12.  I make an order as per the draft submitted, with the amendments I have indicated.  The order is to provide for the [no.] respondent to be examined on oath and to produce documents relating to the Companies, their subsidiaries and/or associated companies that are in his possession, power or custody.  I also give leave to effect service of this order on the [no.] respondent out of the jurisdiction and that a letter of request in the form exhibited to the 9^th affidavit of Mr Borrelli addressed to the Superior Court of Justice of Ontario, Canada is to be issued.