CHENG LAP YIN v. SUPERBO TRADING CO. LTD

HCMP 722/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 722 OF 2014

______________________

_______________

D E C I S I O N

_______________

1. I have before me three originating summonses which have been issued pursuant to section 122 of the Companies Ordinance, Cap 32, alternatively section 431 of Cap 622 (the “New Companies Ordinance”) seeking orders extending time for the companies to lay their profit and loss accounts and balance sheets before the companies in an annual general geeting.

2. In the case of two of the applications (HCMP 723 and 724 of 2014), the defaults occurred more than three years ago, there is thus no risk of the company or its directors being prosecuted in respect of these breaches.  As I have said in earlier decisions where this is the case, there is no basis upon which the court can properly exercise its discretion to extend time because the applicants are concerned about the risk of a criminal prosecution. 

3. The first application (HCMP 722/2014) is for an extension of time for putting the profit and loss account and balance sheet before the company at an annual general meeting in respect of the accounts for the year ending 31 December 2011.

4. The company should have held its annual general meeting by 30 September 2012.  It held the meeting on 21 November 2012 and put the necessary accounts before shareholders at that time.  It seems to me that there is clearly no risk of any prosecution in respect of that highly technical breach of the ordinance.  I would therefore decline to exercise my discretion and refuse that application.

5. As I have said on previous occasions, I expect those advising companies to take a practical approach to these matters.  Where a breach is clearly of a technical nature, and there is no material risk of prosecution, I do not expect applications to be made.

6. In the present case, the circumstances are a little bit more complicated because it is clear from the evidence that at the time the applications were issued the solicitors who were advising the applicants were operating under the misapprehension that a failure to remedy the breaches might impact negatively on a proposed listing application. 

7. It is apparent from a second affirmation that was filed in each of the originating summonses that they subsequently became aware that this was not the case and it was suggested that the reason for the applications, and this was obviously rather disingenuous, was because of a concern about a risk of criminal prosecution. Quite clearly, this could not have been the case in respect of the second and third applications - at least it would not be the case if the solicitors were aware of the relevant provisions in the Companies Ordinance.