RE JOINT AND SEVERAL LIQUIDATORS OF OZNER WATER INTERNATIONAL HOLDING LTD (IN LIQUIDATION) (“COMPANY”)

HCMP 9/2022

[2022] HKCFI 363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 9 OF 2022

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D E C I S I O N

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Introduction

1.  I have before me the third application for issue by this court of a letter of request directed to the Shenzhen

Intermediate People’s Court seeking its assistance in aid of the Company’s liquidation and liquidators. The application is made pursuant to what is now commonly referred to as the “Cooperation Mechanism” that was entered into on 14 May 2021 by the Supreme People’s Court and Hong Kong’s Secretary for Justice. The first application was made on 20 July 2021. It concerned Samson Paper Co Ltd[1]. It is not necessary for me to repeat the explanation contained in that decision of the genesis and purpose of the Cooperation Mechanism and its terms. For present purposes what is relevant are (1) that the Cooperation Mechanism applies as between the Hong Kong High Court and the Shenzhen Intermediate People’s Court and (2) the criteria that need to be satisfied before the Shenzhen Intermediate People’s Court will recognise the Liquidators and grant them assistance.

2.  This application is, however, different from the two previous applications in one material respect. The Company is not incorporated in Hong Kong. It is incorporated in the Cayman Islands.

Background

3.  The Company was incorporated in the Cayman Islands on 15 November 2013, and has been registered in Hong Kong under Part 16 of the Companies Ordinance (Cap. 622) as a registered non-Hong Kong company since 6 January 2014, with its principal place of business in Hong Kong. The Company’s shares have been listed on the Main Board of the Stock Exchange of Hong Kong since June 2014, with stock code 2014. Trading in the Company’s shares has been suspended since 18 March 2021. The Company is an investment holding company, with its principal operating subsidiaries in the Mainland (together, “Group”). The Group’s business is in three principal areas, namely:

(1)  water purification services;

(2)  air sanitisation services; and

(3)  supply chain services.

4.  The background to the Company’s insolvency proceedings may be summarised as follows:

(1)  In 2020, the Group encountered financial difficulties.

(2)  The Company is balance-sheet insolvent.

(3)  On 14 December 2020, DBS Bank Ltd, Hong Kong branch (“Petitioner”) issued a winding-up petition against the Company because the Company owed the Petitioner some US$25 million.

(4)  On 17 March 2021, Master Lai made a winding-up order on the Petitioner’s petition.

(5)  On 16 April 2021, upon the Official Receiver’s application, I granted a regulating order appointing the Liquidators.

5.  Since their appointment, the Liquidators have been investigating the Company’s affairs and preserving the Company’s assets.

6.  The Liquidators need to obtain recognition and assistance in the Mainland in order to take possession of and deal with the Company’s substantial assets in the Mainland which are located in Shenzhen, consisting of:

(1)  a judgment debt in the sum of HK$20 million plus interest (“Judgment Debt”) owed by a financial services company incorporated in Shenzhen, namely 深圳市威廉金融控股有限公司 (“Shenzhen William”), arising from a judgment granted by the People’s Court of Qianhai Cooperation Zone, Shenzhen on 8 September 2020; and

(2)  debt claims exceeding HK$142 million due from Shenzhen William (“Receivables”).

Need for Recognition and Assistance

7.  In Re Samson Paper Co Ltd[2], I explained the principles governing the issue of a letter of request by the Hong Kong court to a Mainland court in connection with the Cooperation Mechanism. Granting the Letter of Request would be consistent with the established principles for these reasons. First, the assets the Liquidators seek to control via the Mainland recognition are assets in the Mainland. Thus the Mainland court is the most appropriate forum for the determination of the Liquidators’ powers over the Mainland assets.

8.  Second, the Letter of Request would be consistent with the Cooperation Mechanism because the following features of the present case fall squarely within the Cooperation Mechanism:

(1)  The Company is in insolvent compulsory liquidation, with its principal Mainland assets being in Shenzhen.

(2)  The Company’s centre of main interests has been in Hong Kong because the Company has always been run out of Hong Kong.

(3)  The Liquidators have a duty to get in the Company’s assets. The assistance the Liquidators need in the Mainland concerns classic asset collection efforts.

9.  Third, the Liquidators have under Hong Kong law statutory power to commence proceedings outside Hong Kong to perform their functions.

10.  Granting the letter of request here would be a fruitful exercise of the Court’s discretion because the evidence demonstrates that without recognition and assistance in the Mainland, the Liquidators would not be able to collect on the Judgment Debt and Receivables. This is in my opinion a proper case to issue a Letter of Request to take advantage of the Cooperation Mechanism in order to assist in the Liquidators’ asset collection efforts. Indeed, recently the Shenzhen court granted the relevant recognition and assistance to the liquidators in Samson Paper[3] to achieve a similar purpose.

Jurisdiction

11.  Article 4 of the SPC Opinion states:

“ 四、 本意見適用於香港特別行政區系債務人主要利益中心所在地的香港破產程序。

本意見所稱‘主要利益中心’，一般是指債務人的註冊地。同時，人民法院應當綜合考慮債務人主要辦事機構所在地、主要營業地、主要財產所在地等因素認定。

在香港管理人申請認可和協助時，債務人主要利益中心應當已經在香港特別行政區連續存在6個月以上。

4. This Opinion applies to Hong Kong Insolvency Proceedings where the Hong Kong Special Administrative Region is the centre of main interests of the debtor.

‘Centre of main interests’ referred to in this Opinion generally means the place of incorporation of the debtor. At the same time, the people’s court shall take into account other factors including the place of principal office, the principal place of business, the place of principal assets etc. of the debtor.

When a Hong Kong Administrator applies for recognition and assistance, the centre of main interests of the debtor shall have been in the Hong Kong Special Administrative Region continuously for at least 6 months.”

12.  As the Company is not incorporated in Hong Kong it is necessary for the court in Hong Kong and the Mainland to be satisfied that its centre of main interests is located in Hong Kong and this is a proper case in which to seek recognition and assistance. On the basis of the evidence before me in my view it would appear that the Company’s centre of main interests has been in Hong Kong since its incorporation as it has always been run out of Hong Kong [4].

Determination

13.  I have found in [10] above that it is desirable that the Liquidators’ appointment should be recognised and assisted in Shenzhen and in [12] that the Company’s centre of main interests is in Hong Kong. It follows that in my opinion this is a proper case for a letter of request to be issued by the Hong Kong Court to the Shenzhen Intermediate People’s Court requesting that the Shenzhen Intermediate People’s Court make an order recognising the Liquidators and providing assistance to them.

14.  I will make the following order:

(1)  A letter of request in the form appended hereto in simplified Chinese be issued to the Shenzhen Intermediate People’s Court seeking its assistance in aid of the Company’s liquidation and its liquidators.

(2)  The Liquidators’ costs of this application be paid out of the assets of the Company as an expense of the Company’s liquidation.

(3)  Liberty to apply.