SO HOI WING v. THE REGISTRAR OF COMPANIES

HCMP 403/2022

[2022] HKCFI 3324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANCEOUS PROCEEDINGS NO 403 OF 2022

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REASONS FOR DECISION

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APPLICATION

1.  By an Originating Summons dated 14 April 2022 (“OS”), the Applicant, So Hoi Wing, applies to restore Dragon Field Properties Limited (“Company”)  pursuant to s.765(1)  of the Companies Ordinance.

2.  The Registrar of the Companies (“CR”)  has no comment on the present application.

BRIEF FACTS

3.  In gist, the Company is a Hong Kong company incorporated on 16 July 1997.  The Applicant’s mother Madam Lam Lau Har (deceased)  (“Deceased”)  and elder sister, So Hoi Yan, became directors of the Company.

4.  Before the Company was struck off, the total issued capital of the Company was HK$10 divided into 10 shares of HK$1 each.  The allocation of shares were as follows:-

(1)  The Deceased: 6 shares

(2)  So Hoi Yan: 1 share

(3)  Applicant: 1 share

(4)  So Hoi Ka (Applicant’s younger brother): 1 share

(5)  So Hoi Lok (Applicant’s younger brother): 1 share

(So Hoi Yan, Applicant, So Hoi Ka and So Hoi Lok are collectively referred to as the “Children” below)

5.  The Company, originally a shelf company, was acquired by the Deceased for the purpose of investing in Hong Kong properties for the benefit of the Children. It is thus the Children’s understanding that the matters relating to the Company will be managed by the Deceased.

6.  Throughout the years, the Company acquired 2 properties, namely Rear Portion, 1^st Floor, No. 60 Percival Street, Hong Kong (“Percival Street Property”)  and Unit A9A, 26^th Floor, Pearl City Mansion, No. 22/36 Paterson Street (“Pearl City Property”). The latter was subject to a mortgagee sale in 2004 leaving only the Percival Street Property owned by the Company.

7.  In 2005, the Deceased fell ill and suffered a stroke. She eventually passed away on 10 August 2007. As the Children and the father were engaged in their life in Auckland, they did not make any enquiry in relation to the Company before death of the Deceased.

8.  The Company was de-registered on 18 July 2008.  However, since the Applicant’s family did not reside in Hong Kong, they were not informed of the deregistration until the Applicant was reminded by her friend in late 2011 while visiting Hong Kong.

9.  After discussion with the other Children, the Applicant decided to apply to restore the Company for the sole purpose of dealing with the Percival Street Property.

10.  Upon restoration of the Company (if the present application is granted):-

(1)  the Applicant intends rename the Company as “Dragon Field Properties (2022)  Limited” as the Company’s current name has been used by another company.

(2)  So Hoi Yan will continue to be the director and the Applicant also intends to be appointed as a director as well.

(3)  Heidi Lee Secretary Limited will be engaged as the Company’s secretary (and So Hoi Yan will resign from this position).

11.  The CR raised a number of concerns by way of two letters in relation to (1)share structure of the Company; (2)  whether there is any other asset/property held by the Company; (3)  update of the Companies records.

12.  These issues have been addressed by the Applicant. Further, the Applicant notes that the grant of letters of administration of the Deceased mistakenly stated that the shares held by the Deceased was “5” instead of “6” shares. The Applicant has prepared the affirmation for amending the grant relating to the Deceased’s estate and is arranging his father So Kwok Kwong, the administrator of the Deceased’s estate to have the same affirmed and filed soon.

APPLICABLE LEGAL PRINCIPLES AND ANALYSIS

13.  As the Company was struck off under s.291 of the predecessor Ordinance (i.e. Companies Ordinance (Cap. 32)), s.765(1)  applies.

14.  Pursuant to s.765(1)(a)  of the Companies Ordinance, an application for restoration may be made by, inter alia, a member of the Company who feels aggrieved by the striking off.

15.  The Applicant is a member of the Company and, given that the Company is still holding the Percival Street Property, is aggrieved by the striking off as this means he (and other shareholders of the Company)  will not have the benefit of managing and disposing of the Percival Street Property. The Applicant thus has locus to make the present application.

16.  The Court may grant an application if satisfied that it is just that the company be restored.

17.  The correct test to be applied is simply “whether or not the Company had more than a shadowy prospect of establishing anything of value”: Easewin Properties Ltd & Anor v Registrar of Companies & Ors (No 2) [2004] 4 HKC 547 at 552G per Tang J (as he then was).

18.  I agree that the above test is satisfied as it is indisputable that the Company still holds the Percival Street Property. In application of this nature, the Court should try to facilitate the restoration so that scarce resources, in this case the Property, could be put to good use.

19.  Insofar as the Company’s name is concerned, the Applicant accept that the Company must change its name within 28 days of restoration in compliance with s.770(2)  of the Companies Ordinance.  The Applicant (as intended director of the Company if restored)  is prepared to comply with this obligation.

DISPOSITION

20.  For all the reasons stated above, I make an order in terms of the draft order as presented to the Court.

21.  Finally, I thank Mr Chan for his helpful assistance to this Court.