RE YANG ZHENGHONG

HCMP 3115/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO3115 OF 2013

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D E C I S I O N

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1. I have an application before me by way of ex parte originating summons for an order for sale of a property known as Workshop No 8 on 5th floor, Mega Trade Centre, 1-6 Mei Wan Street, Tsuen Wan, New Territories.

2. The applicant is a creditor of the former registered owner of the property called Ailec International (Hong Kong) Limited and had obtained a judgment of the High Court against the company for the sum of over HK$6 million on 25 June 2002.  The applicant obtained a charging order nisi on the strength of the judgment on 23 July 2002, which was made absolute on 27 September 2002.

3. Some two years later, the company was wound up on 20 October 2004 on the basis of a petition presented to the court on 23 August 2004.  The company was subsequently dissolved pursuant to section 227 of the Companies Ordinance (Cap 32) by an order of the court dated 10 August 2009.  The property, however, had not been sold or in any way realised by the liquidators before the dissolution of the company for the reason, probably, that it was subject to the charging order in favour of the applicant as well as another charging order obtained by a different judgment creditor.

4. The applicant wishes now to enforce his security against the property.  One way of doing so is, of course, to apply under section 290 of the Companies Ordinance for a declaration that the dissolution of the company is void.  For reasons relating to the expense of such an application, that route has not been adopted. 

5. Under the law, for as long as the company is and remains dissolved, its property is bona vacantia and belongs to the Government – section 292 of the Companies Ordinance.  Under section 290C, the Government may disclaim property vesting in it as bona vacantia under section 292, but that provision for disclaimer does not apply to immoveable property, nor is there any evidence that the Government has disclaimed in this case.

6. It is true that under the High Court Ordinance, section 20B(3), a charge imposed by a charging order has the like effect and is enforceable in the same manner as an equitable charge created in writing and that, under Order 50 rule 9A of the Rules of the High Court, proceedings may be brought for the enforcement of a charging order by sale of the property charged.  It is also true that, at least arguably, the Government takes the property as bona vacantia under section 292 of the Companies Ordinance subject to the security on the property (see Noel Ing, Bona Vacantia (1971) p 128).  But in my opinion, the Secretary for Justice should at least be joined to such an application if only as representative of the Government being the person to be divested of the property (see Wong Shuk Ying v Attorney General [1987] HKLR 985).

7. As I have said, this application is being made ex parte without the Secretary for Justice having been joined, nor is there any indication before me, even by letter, of what the position of the Secretary might be towards the application.  For these reasons and also because the affidavit filed is not compliant with Order 88 rule 5A, I shall adjourn the originating summons sine die with liberty to restore.