CHOW YAT TIM v. TANG HING KEUNG AND OTHERS

HCMP 418/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 418 OF 2008

(Formerly Companies Winding Up No. 396 of 2007)

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D E C I S I O N

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1.  On 30 June 2009, judgment was handed down in favour of the petitioner, Chow Yat Tim, in a petition presented under section 168A of the Companies Ordinance, Cap. 32.  In paragraph 119 of the judgment, I arrived at the conclusion that the complaints of unfairly prejudicial conduct are largely established and that it would be appropriate to grant the relief sought by Chow, namely, that Tang Hing Keung, who is the 1^st respondent, is to purchase the 100,000 shares of Chow in the subject company, Hing Ming Gondola (HK) Company Limited (“the Company”), and that the valuation of the shares is to be carried out by an independent valuer being a certified public accountant appointed by the court, without discount for the fact that Chow’s shareholding is a minority shareholding.

2.  All paragraph references in this decision are to the judgment handed down on 30 June 2009 unless otherwise stated.

3.  In paragraph 120, I directed a further hearing be held in chambers to address the appropriate date at which the shares should be valued and any other matters the valuer should be directed to take into account, so that the order for the purchase of shares and consequential directions may be finalised.

4.  On 6 July 2009, I gave directions regarding the further hearing.  Tang was required to serve directions he wishes to seek by 27 July and Chow was to serve his draft directions by 31 July 2009.  Both have served their draft directions.

Date of valuation

5.  For the purpose of determining the appropriate date for the valuation of shares, these are the relevant incidents in chronological order.

6.  On 6 October 2006, Chow was removed as a director of the Company.  His exclusion from the management was held to be an unfairly prejudicial act.

7.  On 22 June 2007, Chow declined to take up an offer to subscribe for new shares in the Company, pursuant to a resolution to increase the issued share capital by 600%, from $1 million to $6 million by a rights issue of 5 million shares at par of $1 each.  On 23 June 2007, 5 million new shares of the Company were issued and allotted to Tang and his wife.  As Chow did not subscribe for new shares, his shareholding in the Company was diluted from 10% to 1.66%.

8.  One of Chow’s complaints in the petition was that the resolution to increase share capital was not for a genuine business purpose but was designed to dilute his shareholding, in the knowledge that he was not in a position to raise funds to subscribe for new shares at short notice (para 86).  Further, the rights issue should not have been made at par as the shares were worth a lot more (para 91).

9.  It was held that the proposed increase of share capital was for the expansion of business in acquiring agency rights from a German company and that this was for a genuine business purpose (para 90).  I held that it had not been established Chow had no means to subscribe for the new shares and the reason why he did not take up the offer was due to his own choice as he had lost trust in Tang and had been excluded from the management (para 92).  I ruled that in the circumstances, even though the effect of the increase of share capital might have been prejudicial to Chow, it was not unfair for the Company to go ahead with its plan of business expansion, and to facilitate this by the increase of share capital, so the complaint of unfair prejudice was not made out (para 94). 

10.  On 29 August 2007, Chow presented this petition.

11.  On 30 June 2009, judgment was given in Chow’s favour that his shares in the Company are to be purchased by Tang, on the ground that unfairly prejudicial conduct was established for these complaints in the petition:

(1)     the Company wrongfully demanded repayment of $2 million from him in January 2007 and wrongfully brought legal action against him (paras 62 and 69);

(2)     he was forced to resign as a director (para 85);

(3)     Tang’s treatment of two items in the audited accounts for the year ended 31 March 2001 was arbitrary and dubious:

(a) an advance from Tang of $56,826,609 was not fully and properly substantiated (paras 96 to 101); and

(b) there was no proper justification for the disposal of gondolas at a loss of $7,122,027 (paras 102 to 106).

12.  There are three possible dates for the valuation of Chow’s shares: 6 October 2006 being the date of his removal as a director, 29 August 2007 being the date of presentation of the petition, and 30 June 2009 being the date of the judgment for purchase of shares.

13.  Chow submitted the appropriate date should be 6 October 2006, before his shareholding was diluted.  Mr Mok, SC submitted on behalf of Tang the appropriate date should be 29 August 2007.

14.  The date on which judgment was given could be ruled out as inappropriate.  The Company had expanded its business considerably after the increase of share capital in 2007.  It had made substantial purchase of equipment and had expanded its rental business to overseas markets (para 89).  Chow should not have made a windfall as he had made no further contribution of capital and the profits made by the Company due to its subsequent expansion of business did not owe anything to him (Re London School of Electronics Limited [1986] 1 Ch 211 at 224H to 225B).

15.  I reject also the date in October 2006.  Section 168(2)(a) is to give relief “with a view to bringing to an end the matters complained of”.  I have held there was no unfairly prejudicial conduct in respect of the resolution to increase share capital.  Hence, the increase of share capital and the resulting dilution of Chow’s shareholding, as he declined to take up the rights issue for his own reason, is not a matter which required to be brought to an end by the share purchase order.  If the shares were to be valued at a date in October 2006 thereby disregarding the subsequent allotment of shares in the rights issue, this would be tantamount to penalising Tang for conduct which I had held not to be unfairly prejudicial (Wong Man Yin v. Ricacorp Properties Limited & Others (2003) 6 HKCFAR 265 at 286J to 291B, paras 60 to 76).

16.  I think it would be fair in the circumstances of this case to value the shares as at the date of presentation of the petition, that being the date Chow elected to treat the unfairly prejudicial conduct as destroying the basis on which he agreed to continue to be a shareholder and to look to his shares for his proper award for the participation in a joint undertaking (Re Cumana Limited [1986] BCLC 430 at 436a to b; Re Tai Lap Investment Company Limited [1999] 1 HKLRD 384 at 399).

Other specific matters which the valuer should take into account

17.  Apart from Point (HK) Engineering Company Limited普英特(香港) 工程設備有限公司, the Company had invested and held interests in three other entities, Point (Shanghai) Engineering Company Limited上海普英特工程設備有限公司, TransAsia Engineering (Holdings) Company Limited漢暉重運(控股)有限公司, and Xing Ming Machineries Rental Company Limited北京興銘機械設備租賃有限公司.  They are mentioned in paras 11 and 12.  The audited accounts did not reflect these investments of the Company.  They should be taken into account in the valuation of the shares of the Company.

18.  I have not been able to make a finding in the judgment on the available evidence as to the extent to which the advance made by Tang of $56 million was properly substantiated or the extent to which the disposal of gondolas at a loss of $7 million was justified.  In the process of valuation, the valuer would need to ascertain the true extent of the liabilities of the Company by taking into account satisfactory proof that may be adduced.  I do not propose to make a specific direction in this respect.

Costs of valuation

19.  Mr Mok submitted the costs of the valuation should be borne equally by Chow and Tang.  I see no reason why that should be the case.  The facts in the case he cited (Tam Shuk Yin Anny v. Choi Kwok Chan & Others, HCMP No. 2399 of 2004, 5 March 2008, paras 38 to 41) are very different from the present case.  It does not appear to me in this case that a valuation of shares would be inevitable even if the parties were to part company on amicable terms.

20.  Chow has to come to court to get an order for purchase of his shares and for that order to be implemented his shares would have to be valued, either by this court or by an independent expert appointed by the court.  It is appropriate that the costs of the valuation of Chow’s shares should be borne by Tang alone.

Orders

21.  I make the following orders:

(1)     the 1^st respondent do purchase the 100,000 ordinary shares of $1 each in the capital of the Company registered in the name of the petitioner (“the Shares”) at a price to be fixed by such valuer (“the Valuer”) being a certified public accountant, as may within 14 days hereof be agreed upon by the petitioner and the 1^st respondent, or failing agreement as may be appointed by the president for the time being of the Hong Kong Institute of Certified Public Accountants upon the application of either party with or without the consent of the other;

(2)     the Valuer is directed to value the Shares by reference to the assets, profitability and future prospects of the Company as at 29 August 2007 (being the date of presentation of the petition) and without discount for the fact that the petitioner’s shareholding is a minority shareholding, and provide reasons for the valuation;

(3)     in valuing the Shares, the Valuer is directed to take into account the additional investments of the Company in these other entities not reflected in the audited accounts, namely, Point (Shanghai) Engineering Company Limited上海普英特工程設備有限公司, TransAsia Engineering (Holdings) Company Limited漢暉重運(控股)有限公司, and Xing Ming Machineries Rental Company Limited北京興銘機械設備租賃有限公司;

(4)     the petitioner and the 1^st respondent do provide to the Valuer all books, accounts and documents of and relating to the Company, its dealings, affairs or property in his respective possession, custody or control relevant to the valuation of the Shares within 28 days of the appointment of the Valuer;

(5)     each of the parties is entitled to inspect and take copies of the books, accounts and documents provided to the Valuer in para (4) hereof for the purpose of making representations to the Valuer;

(6)     the petitioner and the 1^st respondent may make representations in writing to the Valuer on the valuation of the Shares within 56 days of the appointment of the Valuer and serve a copy of his representation on the other party at the same time;

(7)     the petitioner and the 1^st respondent may respond to the other side’s representations to the Valuer within 14 days of service of the other side’s representation;

(8)     the petitioner and the 1^st respondent shall respond to any reasonable question put to them by the Valuer;

(9)     the 1^st respondent is to pay interest on the value of the Shares fixed by the Valuer, to run from the date of the valuation being 29 August 2007 to 30 June 2009, at the rate of 1% over the best lending rate of HSBC prevailing during this period, and thereafter at the prevailing judgment rate;

(10)   the 1^st respondent is to pay to the petitioner the value of the Shares with interest thereon within 14 days from the publication of the valuation by the Valuer and upon full payment of the purchase price, the petitioner is to transfer the Shares to the 1^st respondent free of all incumbrances or claims of whatsoever nature;

(11)   the costs of the valuation of the Shares shall be borne by the 1^st respondent;

(12)   there be no order as to the costs of the hearing today; and

(13)   there be liberty to the parties to apply for further directions or orders generally.