STEPHEN LIU YIU KEUNG v. REGISTRAR OF COMPANIES AND ANOTHER

HCMP 2758/2017

[2018] HKCFI [1220]

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2758 OF 2017

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REASONS FOR JUDGMENT

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I. INTRODUCTION

1.  Hanluck Investments Limited (“Company”) was a Hong Kong company incorporated on 23 July 1991. It used to be an investment holding company with its major assets being investments in residential and construction projects in Mainland China held through its subsidiaries.

2.  At all material times, the Company’s directors and shareholders were:

Name	Shareholding (%)	Period as director
Cheung Kit (“Cheung”)	18%	From 30/1/97 to 23/12/99
Leung Chiu (“Leung”)	21%	From 5/10/94 to 27/3/00
Li Guang Yu (“Li”)	44%	From 15/4/93 to 27/3/00
Wang Gua Dong Tony	2%	From 15/4/93 to 27/3/00
Zhu Liwei	15%

3.  On 9 December 1999, The Industrial and Commercial Bank of China, Shenzhen Branch (“ICBC”) presented a creditor’s petition for winding up of the Company for outstanding debts and interests accrued/ accruing (including interest accruing at 36%pa from September 1999 until full payment).[1]The Company contested the application alleging inter alia that it was not liable to pay its debts (even though it did not dispute ICBC’s claim for the debts/interest). On 27 March 2000, the Company was ordered to be wound up by the court, and the Official Receiver (“OR”) became its provisional liquidator.[2] During the liquidation, the proofs of debts submitted exceeded US$13,000,000.00 with substantial amount of interest accruing since then.

4.  Upon application made by the OR / Company’s provisional liquidators, the following orders were inter alia granted on 26 August 2000:

(a)   Matthew Finbar O’Driscoll (“Driscoll”) and Stephen Liu Yiu Keung (“Liu”) of Ernst & Young Transactions Limited (“E&Y”) be appointed as the joint and several liquidators of the Company (“Liquidators” and each of whom is referred to as “Liquidator” below); and

(b)   Li, Leung and Cheung (former directors of the Company) be appointed as members of the committee of inspection (“COI”).

5.  On/about 26 November 2002, Driscoll resigned as liquidator for the Company, which resignation was approved by the court on 9 January 2003.[3] On 23 December 2002, the court appointed Yeo Boon Ann Kenneth (“Yeo”) as joint and several liquidator in his place.[4]

6.  4 proofs of debt were submitted during the Company’s liquidation. The relevant proving creditors and the respective amounts claimed were as follows:

Name of Creditor	Amount claimed
ICBC	HK$164,145.00 US$2,472,206.85 RMB24,630.00
Hollywood Palace Company Limited (“Hollywood”)	HK$349,165.43
Guangdong Development Bank (“GDB”)	US$10,976,041.67
Newcourt Credit Hong Kong Ltd (“Newcourt”)	HK$52,793.16

7.  The Liquidators experienced considerable difficulties in investigating into the affairs of the Company and recovery of its assets. It was discovered in the course of preliminary investigations that the Company’s directors failed to keep proper books/records. The latest audited financial statements of the Company made available to the Liquidators were only up to the end of December 1996. Further, the available management accounts of the Company’s subsidiaries and associates were all out of date. The Liu Aff (referred to in paragraph 13 below) suggested that only a glimpse into the Company’s affairs could be had through the unaudited figures furnished by a former director of the Company by way of the Statement of Affairs dated 4 July 2000.

8.  Accordingly, reports were lodged with the OR pursuant to section 168I(3) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance Cap 32 (“Ordinance”). Since June 2002, all audit certificates (Form 86) sent to the Company’s directors were returned. As the members of the COI were exclusively the Company’s directors, upon the OR’s advice, meetings of creditors and contributories were convened pursuant to section 207(7) of the Ordinance to inter alia fill up vacancies in the COI. The meeting held on 8 August 2003 was inquorate, and it was adjourned to 15 August 2003 when no quorum turned up.

9.  The total amount realised/recovered in the Company’s liquidation was only HK$22,346.02 due to failure by the Company’s directors to keep proper books/records and the lack of adequate funding from creditors for investigation into the Company’s affairs and for recovery of the Company’s assets in Mainland China. As at 15 February 2004, the Company had a balance cash sum of HK$18,382.46. Consequently, no distribution was made to the Company’s creditors.

10.  An application to the court for release of the Liquidators was made by report dated 31 October 2003 summarising the liquidation. As seen from such report, the OR indicated its intention to bring prosecution action against the Company’s former directors, and for that purpose requested preservation of the Company’s books/records.

11.  By a court order dated 16 February 2004, Liu and Yeo were released pursuant to section 205 of the Ordinance.[5] By court order dated 12 May 2004, the Company was dissolved under section 227 of the Ordinance.

II.  ORIGINATING SUMMONS

12.  On 22 December 2017, Liu issued an originating summons (“OS”) against the Registrar of Companies (“Registrar”) and Yeo for the following order:

(a) the time limit for application under section 290(1) of the Ordinance be extended;

(b) the dissolution of the Company be declared to have been void;

(c) Liu to pay costs of the Registrar in a sum to be assessed by the court within 3 days from the date of the order to be made herein;

(d) Yeo’s costs be provided for; and

(e) costs of the application be paid out of the assets of the Company to be taxed if not agreed.

13.  On the same day, Liu filed his affirmation in support of the OS (“Liu Aff”). On 5 March 2018, Liu filed the affirmation of Lau Wun Man (E&Y’s associate director and Liu’s assistant) (“Lau Aff”) also in support of the OS.

14.  By a Notice of Appointment to Hear Originating Summons filed on 1 February 2018, the OS was scheduled to be heard by this court on 8 March 2018. After making some submissions to the court, Mr Fung, counsel for Liu, applied for an adjournment. I acceded to the application, and adjourned the hearing of the OS to a date to be fixed not to be heard before 21 days thereof. I also directed Liu to inform the Registrar and the OR in writing within 7 days thereof as to the outcome of the hearing on 8 March 2018 and the reasons for Liu’s application for adjournment.

15.  On 23 May 2018, Liu filed Yeo’s affirmation (“Yeo Aff”) in further support of the OS.

16.  The adjourned hearing of the OS was scheduled to be heard by this court on 31 May 2018 (“Hearing”). No Notice of Appointment to Hear Adjourned Originating Summons was filed/served. However, as the Registrar and the OR were notified of the Hearing, made observations on Liu’s application, and sought to be excused from attending the Hearing, such irregularity had no material consequences.

III.  LIU AFF AND LAU AFF

17.  According to the Liu Aff, Cheung approached E&Y in/about 2016, and told Liu the Company “had an interest” or “had certain rights” over a piece of land in Bao An County, Shenzhen City, Guangdong Province, Mainland China (中華人民共和國廣東省深圳市寶安區公明鎮田埔村92-239號, “Land”), which previously had not been brought to the attention of the Liquidators or the OR. E&Y raised questions with Cheung over the Land, and later Cheung sent to E&Y “對清盤官郵件的答覆” dated 30 July 2016 containing representations by Cheung’s PRC lawyers in response to those questions. Cheung also provided a copy explanatory note titled “香港恒釆投資有限公司土地權益一案情況介紹” dated 20 May 2016 prepared by Cheung’s PRC lawyers.

18.  Liu by the Liu Aff claimed these 2 documents together with supporting documents showed that:

(a) In/about 1991, the Company entered into a leasehold agreement with a PRC entity called “寶安區公明鎮薯田埔經濟發展公司” for a 50-year lease of the Land for a consideration of RMB8,976,000.00 which was duly paid by the Company and/or its group companies.

(b) In/about 1993, the Company entered into a tripartite agreement with “寶安區公明鎮薯田埔經濟發展公司” and a PRC government department, ie Bureau of Land and Resources Shenzhen (“Bureau”), to the effect that the amount paid under the agreement in 1991 in sub-paragraph (a) above would be deemed to be land resumption compensation from the government to the villagers. The Land was resumed pursuant to such tripartite agreement, and since then the Land belonged to the State.

(c) In 2001, a PRC enforcement judgment was made against “恒采(深圳)實業有限公司” (PRC subsidiary of the Company, “Shenzhen Hanluck”)[6] in favour of its creditors “levying on the [Land] for the debts owed to them”. Subsequently, the Bureau objected to the execution of the PRC enforcement judgment on the grounds (according to Cheung’s PRC lawyers) that (i) the grant in respect of the Land from the PRC government to the Company had not been completed and (ii) the consideration for the grant had not been settled.

(d) According to Cheung’s PRC lawyers, the estimated value of the Land was around RMB120,000,000.00, and the Company “had rights over the [Land] subject only to payment of the purchase price to the PRC Government and completion of the grant”.

19.  The Liu Aff noted the status report dated 29 November 2002 and issued by the Bureau opined that “恆采公司” (defined therein as Shenzhen Hanluck and not the Company) could pay off the purchase price to the PRC government and complete the grant.

20.  Liu claimed no action was taken in 2016 because (a) it was unclear whether the Bureau would recognise the Company’s rights over the Land, and (b) there was no proper valuation of the Company’s supposed rights (if at all) over the Land having regard to the uncertainty over whether it was the Company or Shenzhen Hanluck that was supposed to take the grant, the amount of purchase price that had to be paid to the Bureau and/or PRC government, the complications arising from the existing PRC enforcement order against the Land, and the outstanding indebtedness due to third parties in favour of whom the PRC enforcement order was made.

21.  Liu claimed that in 2017 a PRC corporation called “深圳市尚誠科技有限公司” (“Potential Buyer”) approached E&Y, and expressed interest in buying out “whatever rights the Company may have over the [Land]”. From the results of the National Enterprise Credit Information Publicity System online search dated 26 September 2017, Liu believed the Potential Buyer was not connected or associated with the Company’s shareholders and/or former directors. Liu opined the appearance of the Potential Buyer suggested that despite uncertainties over the Company’s supposed rights over the Land, those rights would seem nonetheless marketable, and it appeared significant sums could be raised.

22.  Liu estimated the Company’s current indebtedness due to general creditors exceeded HK$77,000,000.00 plus accrued interest and further interest accruing at a substantial rate:

(a) In respect of the proof of debt by ICBC filed with the OR on 27 April 2000, it concerned a PRC judgment dated 12 May 1999 against the Company over 3 irrevocable letters of credit under a general banking facilities agreement dated 14 May 1997 as between ICBC and the Company. Such general banking facilities were secured by PRC property known as “廣東省深圳市羅湖區布心路東樂大廈西座裙樓第二層204商舖(深房地字第0072754號代用房地產証)” (“PRC Property”).

The PRC judgment dated 12 May 1999 adjudged that the Company shall pay total principal sum of US$1,444,316.70 together with interest accruing at 36%pa on US$719,440.00 as from 16 December 1997, on US$450,560.00 as from 5 January 1998 and on US$274,316.70 as from 12 January 1998. According to the Reasons for Decision handed down by Le Pichon J (as she then was) on 5 April 2000 (see footnote 2 above, “Reasons”), by the time of the hearing on 27 March 2000 the PRC Property pledged as security still could not be sold even though it had been put up for auction on 4 occasions.

The Potential Buyer provided E&Y with further documents in relation to ICBC, ie “廣東省深圳市中級人民法院查詢結果通知書(1999)深中法執清字第755號” dated 28 November 2009 and “廣東省深圳市中級人民法院民事裁定書(1999)深中法執清字第755號” dated 5 September 2009, to the effect that the judgment debt under the PRC judgment in favour of ICBC against the Company and its surety was still undischarged, and investigation revealed there was no property registered under the Company/surety against which execution could be made. Hence, Liu believed the whole of the Company’s outstanding indebtedness set out above remained unsatisfied.

Further, the Company did not contest the principal/interest owing to ICBC at the hearing of the winding-up petition. On the basis of outstanding principal and interest as averred in the winding-up petition, the outstanding sum due to ICBC as at, say, 21 December 2017, would amount of US$8,525,604.61.

(b) In respect of the proof of debt by Hollywood submitted on 3 September 2001, it concerned outstanding rent and other payables under an office lease in the sum of HK$394,165.43 owed by the Company, which indebtedness Liu believed still remained outstanding.

(c) In respect of the proof of debt by GDB submitted on 21 June 2000, it concerned a PRC judgment against the Company in respect of a loan that the Company borrowed from GDB pursuant to an agreement dated 9 February 1996 that was secured by 3 PRC landed properties owned by Shenzhen Hanluck.[7]

E&Y obtained further documents in relation to GDB, ie (i) “廣東省高級人民法院民事判決書(1998)粵法經二初字第10號” dated 19 June 1999, (ii) “廣東省高級人民法院民事判決書(1998)粵高法執字第16-5號” dated 15 June 2000, and (iii) “廣東省高級人民法院民事裁定書(1999)粵高法執字第16-6號” dated 13 July 2000.

The Liu Aff stated the PRC judgment in (i) above formed the subject matter of GDB’s proof of debt, but pages 3-4 were omitted from the copy provided as supporting document for GDB’s proof of debt. The Liu Aff stated page 4 of such judgment showed the PRC property in footnote 7(c) above had been discharged under a supplementary loan agreement between the Company and GDB in 1997. The PRC enforcement orders in (ii)-(iii) above showed the PRC landed properties in footnote 7(a)-(b) above had been sold or disposed of for the total value of RMB17,250,000.00 and RMB81,924,024.48 respectively. Thus, Liu believed the Company’s indebtedness to GDB had been discharged through enforcement against the aforesaid securities.

(d) In respect of the proof of debt by Newcourt submitted on 18 May 2000, it concerned overdue interest and legal costs in relation to debts owed under hire-purchase financing for the Company’s purchase of a vehicle that had been wholly paid off by collateral.

23.  Liu added that on the face of the Reasons for granting the winding up order in respect of the Company, evidence had been filed by the Company’s director on behalf of the Company to the effect that the Company had 45% interest in a toll road project in Xin Hui that had commenced business on 1 March 2000, and that was expected to bring in monthly income of more than RMB4,500,000.00. But in the Statement of Affairs dated 15 May 2000 there was no mention of such 45% stake in the toll road project in Xin Hui nor any cash reflecting monthly income therefrom.

24.  Liu further added that by the time of the hearing for the winding-up petition in question the Company still held out a landed property (alleged to be worth more than enough to cover the debts due to ICBC) as security. PRC documents to the effect that neither the Company nor the surety company owned the supposed property pledged/charged to ICBC cast serious doubt over whether the security had since been transferred out of the reach of the Company/surety, and it even brought to question whether the Company/surety ever owned such security in the first place.

25.  The Liu Aff explained that Yeo had left E&Y’s employ, and that as a former Liquidator Yeo was joined a person interested in the application. He had no objection to not being re-appointed as a Liquidator upon reinstatement of the Company (if so ordered by the court).

26.  In summary, Liu contended that since the Company still owed 2 creditors more than HK$77,000,000.00 (with interest accruing in favour of ICBC at a substantial rate), on the assumed valuation of the Land provided by Cheung’s PRC lawyers, a substantial part (if not entirety) of the Company’s outstanding debts owed to its creditors could be repaid out of the proceeds from realisation of its alleged rights over the Land. It was said that even if the realisation could not achieve the full valuation optimistically provided by Cheung’s PRC lawyers (given uncertainties over the Company’s apparently tenuous rights over the Land and complications from the presence of third parties with competing claims) the proceeds would still benefit the Company’s creditors by providing financing for investigation into the Company’s affairs and for recovery of other assets (eg the toll road project in Xin Hui that was admittedly owned by the Company), which task could not be undertaken previously for want of funding.

IV.  REGISTRAR’s INITIAL STANCE

27.  By letter dated 2 January 2018 to Liu’s solicitors and by a further letter to the court dated 27 February 2018, the Registrar reported the Companies Registry had not received any bank balance or property of the Company held as bona vacantia. Subject to any views by the OR and without prejudice to the position of the Hong Kong government, the Registrar proposed terms to be included in the relevant court order should the court be minded to accede to Liu’s application for declaring the dissolution of the Company to have been void.

28.  By letter dated 10 January 2018, Liu’s solicitors and Yeo confirmed they had no objection to the terms proposed by the Registrar.

V.  YEO’s INITIAL STANCE

29.  By letter dated 10 January 2018 to the OR, Yeo (and Liu) confirmed he had left E&Y and asked whether the OR would object to add the following terms should the court be minded to accede to Liu’s application for declaring the dissolution of the Company to have been void:

(a) the appointment of Yeo as one of the former Liquidators be released and discharged; and

(b) Liu shall pay the costs of the OR in such sum as may be agreed between Liu and the OR in lieu of taxation.

VI.  OR’s INITIAL STANCE

30.  In letter dated 20 February 2018 to Liu’s solicitors and further letter to the court dated 28 February 2018, the OR had no objection to an extension of time for Liu to make the present application.

31.  The OR noted the ground for Liu’s application under the OS was essentially for distribution of an overlooked asset, and further noted from the Liu Aff that (a) in 2001 the Bureau objected to execution of an enforcement judgment against Shenzhen Hanluck on the ground that the Land’s grant “from the PRC Government to the Company has not been completed and the consideration for the grant has not yet been settled”, (b) the Company “had rights over the Land subject to payment of the purchase price to the PRC government and completion of the grant”, (c) the Bureau’s report identified Shenzhen Hanluck and not the Company as being the party who could pay off the purchase price to the PRC government and complete the alleged grant, and (d) it was unclear whether the Bureau would recognise the Company’s rights over the Land.

32.  The OR pointed out Liu should produce prima facie evidence to show the Company might have an interest in the Land[8] in support of the present application as a number of questions arose from the Liu Aff as to the existence/identity of the Company’s interest in the Land:

(a) how did the alleged grant come into existence?

(b) how did the lease in 1991 evolve into the alleged grant?

(c) when was the alleged grant created?

(d) if the alleged grant was created from the tripartite agreement in 1993, how was it created?

(e) when the alleged grant had not been paid for and not completed, what rights could have been created for the grantee?

(f) when the Bureau identified Shenzhen Hanluck as the party who could pay off the purchase price and complete the Grant, on what basis did Liu believe the Company should be the grantee or could have an interest in the alleged grant or in the land?

33.  As regards the choice of Liquidator(s), the OR reminded it was important for Liu who sought re-appointment of himself as the Liquidator to bring to the attention of the court “with total candour all matters which are relevant to any decision the court is invited to make”.[9] The OR drew attention to Re Luen Tat Watch Band Manufacturer Limited[10] in which DHCJ To criticised Liu’s conduct as a liquidator. Although the OR took a neutral stance on Liu’s application for his re-appointment as Liquidator, she reminded the burden rested on Liu to persuade the court he should be so re-appointed despite the aforesaid judicial criticisms.

34.  The OR also pointed out Liu’s proposal was for himself to be re-appointed as sole Liquidator, but the usual practice was to appoint 2 persons as joint and several liquidators of a company. The OR was minded to advise the court that a further liquidator should also be appointed in addition to Liu.

35.  By letter dated 23 February 2018 to Liu’s solicitors, the OR confirmed (a) she had in December 2003 decided not to commence prosecution action, and (b) her stance in respect of Liu’s present application for restoring the Company was neutral.

36.  On 2 March 2018, Liu’s solicitors replied to the OR inter alia as follows:

(a) Given there had been difficulties in asset recovery and investigation as well as revelation of previously unknown assets, it was inappropriate to categorise the present application as one based on asset overlooked by the Liquidators, who had attended to their work diligently and made due reports to the court and the OR.

(b) Although the Company’s books/records had been destroyed, the working papers and supporting documents pertaining to the liquidation of the Company had been maintained.

(c) As regards the choice of Liquidator(s), Liu intended to convene contributories’ and creditors’ meeting after the restoration of the Company for the purpose of (i) providing an update of the status of the liquidation to the shareholders/ creditors of the Company, and (ii) considering the appointment of the Liquidators of the Company. Liu claimed Re Luen Tat Watch Band Manufacturer Limited was under appeal, but for the sake of prudence, he would be prepared to step down as Liquidator and would nominate 2 experienced insolvency practitioners from E&Y to act as the Liquidators for consideration by the contributories and creditors at their respective meetings should the court deem appropriate and necessary.

VII.  YEO AFF

37.  At the hearing on 8 March 2018, this court canvassed with Mr Fung the OR’s concerns over the choice of the Liquidators. Mr Fung therefore applied for an adjournment for Liu to re-consider the situation. Since then, Liu filed the Yeo Aff.

38.  The Yeo Aff stated that in view of concerns raised over the choice of the Liquidators, Liu was willing to step down and resign as a Liquidator if the Company were to be revived. In such circumstances, Yeo was willing to take up the office of Liquidator if the Company were to be revived to enable realisation of the Company’s interest in the Land for the benefit of the Company’s creditors, whose debts owed by the Company were still substantial and unsatisfied.

39.  Yeo set out his background and experience as an insolvency practitioner in the Yeo Aff.[11]Yeo is currently head of the Specialist Advisory Services department of BDO Financial Services Limited that provides advisory services to clients including insolvency, forensic, litigation support and corporate finance. In addition, Yeo proposed for Chan Leung Lee (fellow director of Yeo’s department at BDO Financial Services Limited, “Chan”) to be appointed as the joint and several Liquidator of the Company should it be revived.

VIII. OTHER DOCUMENTS

40.  On 18 May 2018, Hau Wing Shing Vincent, a solicitor, made affirmations of fitness of liquidator for Yeo and Chan. On 18 and 28 May 2018, Chan and Yeo respectively signed Consent to Act as Joint and Several Liquidator for the Company. On 18 and 28 May 2018, Chan and Yeo made their respective disclosure statements. The above documents were all filed on 31 May 2018.

IX.  OR’s CURRENT STANCE

41.  The OR by letter dated 25 May 2018 maintained a neutral stance on the re-appointment of Yeo and appointment of Chan.

X.  REGISTRAR’s CURRENT STANCE

42.  The Registrar by letter dated 28 May 2018 noted Liu being the sole applicant in the present proceedings was prepared to step down as a Liquidator after the revival of the Company. In such circumstances, the Registrar was concerned whether Liu still had locus to proceed with the present proceedings, and whether he would be bound by the terms of the order to be made and then to carry out the terms of such order. The Registrar considered it more appropriate for joining Yeo and Chan as applicants (upon application by Yeo, Chan and/or their solicitors) first or at the same date and time of the Hearing (if so allowed by the court).

XI.  LEGAL PRINCIPLES

43.  Section 290 of the Ordinance provides as follows:

“(1) Subject to subsection (1A), in the case of a company which has been dissolved under section 226A, 227, 239 or 248, the court may at any time within 2 years of the date of the dissolution, on an application being made for the purpose of the liquidator of the company or by any other person who appears to the court to be interested, make an order, upon such terms as the court thinks fit, declaring the dissolution to have been void, and thereupon such proceedings may be taken as might have been taken if the company had not been dissolved.

(1A) The liquidator of the company …… may at any time apply to extend the period of 2 years referred to in subsection (1) and the court may so extend, on such terms and conditions as seem to it just and expedient, if it is satisfied that there are exceptional circumstances justifying the extension.

……”

44.  Thus, it appears an applicant for a declaration that the dissolution of a company was void must show (a) the dissolution was under one of the provisions mentioned in section 290(1) of the Ordinance, (b) the application must be made within 2 years of the date of the dissolution or any period extended by the court, and (c) the applicant must be a liquidator or a person who appears to be interested for the purpose of section 290 of the Ordinance.[12]

45.  The Registrar has authority to act for the Hong Kong government in bona vacantia cases such as an application under section 290 of the Ordinance.[13]

46.  Whilst ordinarily the purpose of an application under section 290 of the Ordinance is “either to enable the liquidator to distribute an overlooked asset or a creditor to make a claim which he has not previously made”, such provision should not be limited to a situation in which a liquidator is quite unaware of an asset belonging to a company, and that it is apt to cover analogous situations such as where a liquidator is aware of an asset but unaware that that asset has any realisable value.[14]

47.  Emergence of potentially recoverable assets previously unknown to the liquidators which will enable the creditors to be repaid may be sufficient reason for extension of time beyond the 2-year period specified in section 290(1) of the Ordinance, and may provide ground for the order to be made under section 290 of the Ordinance.[15]

48.  The consequence of declaring the dissolution of a company void and reviving the company is that the office of the former liquidators revive and they remain as liquidators of the company.[16]

49.  But upon making the declaration to revive a dissolved company, and on cause shown, the court may make an order for removal of a liquidator and appoint another one as a consequential relief (see section 252 of the Ordinance).[17] It is not a necessary condition to show personal misconduct or unfitness of the liquidator, as the wording of the statute was very wide and it would be wrong for the court to define the kind of cause which is required for removal.[18]

X.  DISCUSSION

(1)   Section 290 declaration

50.  I accept there was previously lack of funding for detailed independent investigation into the Company’s projects and investments in Mainland China (eg the toll road project in Xin Hui), and hence the OR and Liquidators could only be as knowledgeable about the Company’s assets in Mainland China as the former directors of the Company were willing to frankly disclose. The situation was not helped by default in keeping proper books/records and in giving full disclosure to the Liquidators in respect of the properties and assets of the Company on the part of the former directors, and by the Liquidators’ loss of contact with the former directors who, at the time, was largely based in Mainland China. It was against such background that the Liquidators were previously unaware of the Company’s possible stake in the Land.

51.  It appeared there was still outstanding indebtedness owed to 2 creditors of the Company, one of whom was ICBC. ICBC was still owed substantial sums with interest continuing to accrue on the outstanding principal. If there were any asset of the Company that was potentially available for realisation and distribution to the remaining creditors, there was no reason why such creditors should be made to suffer from the default by the former directors of the Company.

52.  E&Y only learned of the Land in 2016 (as informed by Cheung and his PRC lawyers). The OR raised query as to the existence and nature of the Company’s rights and interests (if any) in the Land (see paragraph 32 above). The Liu Aff also suggested some uncertainty as to whether the Company had any interest/right in the Land, and how such interest/right (if any) was created and/or could be perfected. But I accept Liu had placed sufficient materials before this court to demonstrate prima facie evidence that the Company might have an interest in the Land, or if it were Shenzhen Hanluck (and not the Company) that might hold such interest/right in the Land, the Company being the probable sole shareholder of Shenzhen Hanluck would be able to reap value from sale of such interest in the Land through dividends from Shenzhen Hanluck or through outright liquidation of Shenzhen Hanluck.

53.  Although the Liu Aff had reservations about the value of the Land suggested by Cheung’s PRC lawyers (RMB120,000,000.00), it was at least some indication of potential recovery for the benefit of creditors. Further, the Potential Buyer’s approach to E&Y showed the Land had some marketable value. As Liu said, it might yield some funds for the Liquidators to investigate and recover other properties and assets of the Company (eg the admitted interest in the toll road project in Xin Hui) for the benefit of creditors.

54.  In the circumstances, I was prepared to grant extension of time for Liu to make the present application and to grant an order to resuscitate the Company.

(2)   Locus of Liu in making the present application

55.  Liu no longer wished to seek re-appointment as a Liquidator if the Company were to be revived. Question then arose as to whether he had sufficient interest to make the present application. Section 290(1) of the Ordinance provides that the application can be made by the liquidator of the company or by any other person who appears to the court to be interested.

56.  Even though Liu no longer wished to seek re-appointment as a Liquidator if the Company were to be revived, was he a “liquidator of the company” within the meaning of section 290(1) of the Ordinance? Mr Fung drew my attention to In re Wood and Martin (Bricklaying Contractors) Ltd.[19] In that case, an extraordinary resolution was purportedly passed to wind up the company voluntarily and the applicant was nominated as the liquidator. At the creditor’s meeting held on the same day no one was nominated as liquidator and the applicant proceeded with the liquidation. He later he found out the registrar of companies had struck the company off the register for failing to make annual returns, notice of which had been gazetted, so the company was dissolved before the resolution to wind up had been passed. The applicant sought a declaration that the dissolution of the company was void. It was held the expression “liquidator of the company” in the equivalent English statutory provision meant normally someone who at least at one time was a duly appointed liquidator of the company, but did not extend to someone who had never been appointed liquidator at all but who had, without lawful authority, been carrying on liquidation of the company. But whilst the applicant in that case was not a liquidator, he was a person appearing to be interested because of the possibility of claims being made respectively by the applicant for work done and against him for intermeddling (albeit innocently) with property vested in the Crown as bona vacantia.

57.  Mr Fung also referred to Re System-Pro Computers Limited[20] in which Kwan J discussed section 290 of the Ordinance, and observed that “[as] former liquidators, the applicants clearly have locus to apply under this provision” (my emphasis).

58.  Mr Fung submitted that apart from being a Liquidator within the meaning of section 290 of the Ordinance, Liu was a person who appeared to be interested because he had not been remunerated for his services as a former Liquidator of the Company and was thereby interested in recovery of further assets of the Company.

59.  Whilst I accept it would have been better for Yeo (a former Liquidator of the Company who wished to be re-appointed should the Company be revived) and Chan (who sought to be appointed as a Liquidator of the Company should the Company be revived) to be joined as applicants in the present application, there was no doubt Liu was a duly appointed Liquidator of the Company and therefore had locus to bring the present proceedings. But having locus standi was just the starting point, and the court must be satisfied any order granted would be effectively carried into effect and would bind all relevant parties. As seen in paragraph 62(f) below, there were matters that the Liquidators to be appointed or re-appointed upon any revival of the Company had to attend to, and it would be undesirable if the applicant Liquidator would not seek re-appointment and the Liquidators to be appointed to carry out such matters were not parties to the proceedings. But I note that here Liu was at first wishful to be re-appointed as a Liquidator of the Company (if revived), so he clearly had interest at that stage. It was only because of concerns over the choice of liquidator that he agreed to step down for Yeo and Chan to be respectively re-appointed and appointed. The present factual matrix was unusual, and it was in such special context that Liu no longer had interest in the liquidation should the Company be revived. But it did not mean he would not be bound by the terms of any order to be made by this court. But whilst I am prepared to accept Liu had locus in the present context, I hasten to make clear the court normally expects the liquidator applicant to be the one who seeks re-appointment upon revival of the company, and if not, the person seeking appointment as liquidator upon revival of the company and/or the person who appeared to be interested should join as applicants, so all relevant parties to be bound by the order to be made.

(3)   Re-appointment and appointment of Liquidators

60.  The starting point is that upon dissolution being declared void pursuant to section 290 of the Ordinance, the former liquidators resume office.[21] Thus, upon the declaration sought, the default position would be that Liu and Yeo would resume office of the Liquidators. In view of the concerns raised, Liu fairly agreed to step down, and Yeo had agreed to step in as a Liquidator with his colleague Chan as the other Liquidator.

61.  As explained above, the court may on cause shown make an order for removal of a liquidator and appoint another one as consequential relief. But there must be proper cause shown and not “if the court shall think fit”.[22] Here, both the Registrar and OR adopted a neutral stance, and papers had been filed to show Yeo’s and Chan’s fitness and experience to act as Liquidators of the Company.

XI.  CONCLUSION

62.  In the premises, I granted the following order at the Hearing:

(a) leave be granted for Liu to apply for an order beyond the prescribed period of 2 years referred to in section 290(1) of the Ordinance and to seek relief thereunder;

(b) the dissolution of the Company “HANLUCK INVESTMENTS LIMITED 恒樂投資有限公司” (Company No. 318572) be declared to have been void;

(c) Yeo be re-appointed and Chan of BDO Financial Services Limited of 25/F, Wing On Centre, 111 Connaught Road Central, Hong Kong be appointed as joint and several liquidators of the Company;

(d) Liu be released and discharged as liquidator of the Company;

(e) Liu shall deliver a sealed copy of this order within 7 days of the date of the order both to the Registrar for registration and to the OR;

(f) Liu shall cause Yeo and Chan to file and Yeo shall file all outstanding liquidator’s statements under section 284 of the Ordinance within 30 days from the date of this order;

(g) Liu shall pay the costs of the Registrar in the sum of HK$5,000.00 being the agreed costs of this application in lieu of taxation within 7 days from the date of this order;

(h) Liu shall pay the costs of the OR in the sum of HK$5,000.00 being the agreed costs for rendering comments on the application within 7 days from the date of this order;

(i) there be no order as to costs between Liu and Yeo; and

(j) the costs of this application be paid out of the assets of the Company, to be taxed, if not agreed.