YANG ZHENGHONG v. REGISTRAR OF COMPANIES

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. This is an application by a judgment creditor, based on a charging order, for an order for sale of a property used to be owned by the judgment debtor. The judgment debtor, which was a company incorporated in Hong Kong, has since gone into liquidation and been subsequently dissolved.

2. The background to this matter was set out in my decision on 8 January 2014 when I adjourned the originating summons which had been taken out ex parte at that stage.  Since then a number of procedural twists have caused delay to the progress of this matter.  Without going through that history it suffices to note that the present position is that the Registrar of Companies has been joined as the respondent.  That in my view is appropriate since the Government has received the property as bona vacantia upon the dissolution of the company which was the legal owner, and the Government is the current legal owner of the property transmitted to it by operation of law subject to the charging order in favour of the applicant.

3. The fact that the Government took the property, subject to prior encumbrances, was already mentioned in my judgment of January 2014 and is further shown by section 752(3) of the new Companies Ordinance, Cap 622 which provides:

“(3) If any property or right is vested in the Government under subsection (1), the property or right remains subject to the liabilities imposed on the property or right by law and does not have the benefit of any exemption that it might otherwise have as a property or right vested in the Government.”

4. Subsection (5) makes it clear that the reference to liability imposed on a property or right by law includes a liability that is a charge or claim on the property.

5. While normally the Secretary for Justice would be the representative of the Government, in this kind of case concerning bona vacantia the Registrar of Companies has been given authority to act on behalf of the Government: see Liu Yiu Keung Stephen v Registrar of Companies (HCMP 1098/2004, 11 June 2004); Li Keung Tsang v Registrar of Companies (HCCW 1174/2002 & HCMP 782/2010, 13 July 2010); Law Society’s Circular No 01-335 (PA) dated 10 December 2001, to which my attention had not been drawn in January 2014.

6. The Registrar of Companies does not oppose the application for an order for sale.

7. All the other requirements including those for affidavit evidence under Order 88 rule 5A having been satisfied, I am satisfied that an order for sale should be made.