NG WING HONG v. BAGUIO GREEN TECHNOLOGY LTD

HCMP 3378/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3378 OF 2013

________________________

IN THE MATTER of MODERN AUTOMOBILE COMPANY LIMITED

and

IN THE MATTER of Section 122 of the Companies Ordinance, Cap 32

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BETWEEN

NG WING HONG Applicant

and

MODERN AUTOMOBILE COMPANY LIMITED Respondent

________________________

HCMP 3379/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3379 OF 2013

________________________

IN THE MATTER of TAK TAI ENVIROSCAPE LIMITED
and
IN THE MATTER of Section 122 of the Companies Ordinance, Cap 32

________________________

BETWEEN

WORLD CREATION ENTERPRISES LIMITED 1st Applicant
COMPOSIL (HONG KONG) LIMITED 2nd Applicant

and

TAK TAI ENVIROSCAPE LIMITED Respondent

________________________

HCMP 3380/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3380 OF 2013

________________________

IN THE MATTER of BAGUIO CLEANING SERVICES COMPANY LIMITED
and
IN THE MATTER of Sections 111 and 122 of the Companies Ordinance, Cap 32

________________________

BETWEEN

NG WING HONG 1st Applicant
BAGUIO GROUP LIMITED 2nd Applicant

and

BAGUIO CLEANING SERVICES COMPANY LIMITED Respondent

________________________

HCMP 3381/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3381 OF 2013

________________________

IN THE MATTER of BAGUIO GREEN TECHNOLOGY LIMITED
and
IN THE MATTER of Section 122 of the Companies Ordinance, Cap 32

________________________

BETWEEN

NG WING HONG Applicant

and

BAGUIO GREEN TECHNOLOGY LIMITED Respondent

________________________

HCMP 3382/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3382 OF 2013

________________________

IN THE MATTER of BAGUIO LANDSCAPING SERVICES LIMITED
and
IN THE MATTER of Sections 111 and 122 of the Companies Ordinance, Cap 32

________________________

BETWEEN

NG WING HONG 1st Applicant
BAGUIO CLEANING SERVICES COMPANY LIMITED 2nd Applicant

and

BAGUIO LANDSCAPING SERVICES LIMITED Respondent

________________________

HCMP 3383/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3383 OF 2013

________________________

IN THE MATTER of BAGUIO PEST MANAGEMENT LIMITED
and
IN THE MATTER of Sections 111 and 122 of the Companies Ordinance, Cap 32

________________________

BETWEEN

NG WING HONG Applicant

and

BAGUIO PEST MANAGEMENT LIMITED Respondent

____________________

HCMP 3384/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3384 OF 2013

________________________

IN THE MATTER of BAGUIO WASTE MANAGEMENT & RECYCLING LIMITED
and
IN THE MATTER of Section 122 of the Companies Ordinance, Cap 32

________________________

BETWEEN

NG WING HONG Applicant

and

BAGUIO WASTE MANAGEMENT & RECYCLING LIMITED Respondent

________________________

Before: Hon Harris J in Court

Date of Hearing: 7 March 2014
Date of Decision: 7 March 2014

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D E C I S I O N

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1. I have before me Originating Summonses issued by seven companies. In respect of each of those companies, applications are made undersection 122 of the Companies Ordinance for an extension of the period within which the companies were required to put their audited financial statements before the companyin annual general meeting. In addition, in the case of three of the companies, applications are also made in respect of one yeareach for an extension of the period in which an annual general meeting had to be convened, pursuant to section 111 of the Companies Ordinance.

2. The breaches are all benign. Principally, they arise from the fact that the annual general meetings were not held within the nine-monthperiod after the end of the relevant accounting period in respect of which audited financial statements had been prepared as requiredby section 122. The delays varied from one to, on a couple of occasions, three months.

3. I accept on the evidence before me that the breaches of section 122 were inadvertent and I am prepared to grant orders.

4. The only issue which has arisen in this case which has required much consideration is the precise form of the order, the reason isas follows:

(1) As is normally the case, currently the catalyst for the applications is the listing of a company which would be the holding companyof the seven applicants on the Main Board of the Stock Exchange of Hong Kong Limited.

(2) The application was put initially on the basis that extensions were required, both to cure breaches of sections 122 and 111 inorder to ensure that the listing was not jeopardised.

(3) It was also said that the directors of the company wanted to cure the breaches in order to remove the risk of prosecution andto put the affairs of the company in good order.

5. Mr Yeung, who appeared on behalf of the applicants, drew to my attention a section of which I had not previously been made aware,namely section 351A of the Companies Ordinance, Cap 32 (it is repeated in materially the same terms in section 900 of the new Companies Ordinance, Cap 622). Section 351A provides:

“(1) Notwithstanding section 26 of the Magistrates Ordinance (Cap 227), an information or complaint relating to an offence under this Ordinance may be tried if it is laid or made, as the casemay be, at any time within 3 years after the commission of the offence and within 12 months after the date on which evidence sufficientin the opinion of the Secretary for Justice to justify the proceedings comes to his knowledge.

(2) For the purposes of this section, a certificate of the Secretary for Justice as to the date on which evidence sufficient to justifyproceedings came to his knowledge shall be conclusive evidence.”

6. The import of this subsection is clear. There is no risk of a company being prosecuted for a breach of either section 122 or section 111 once three years has expired since the date by which it should have taken whatever steps under those two sections are relevant.

7. As I have explained in recent judgments, it is now clear that there is no realistic prospect of the prospective listing of a companyon the Main Board of the Stock Exchange being jeopardised by breaches of sections 111 and 122. That being the case, the only realreason for making an application of this sort can now be to cure breaches which have occurred in the last three years.

8. In my view, normally only applications in respect of breaches in respect of which there is still a risk of prosecution should begranted. In other cases the applications will be academic and normally there will be no justification for the court exercising itsjurisdiction. This is relevant in the present case because the three applications under section 111 all go back before the three-yearperiod, and one of them goes back as far as 1995, and in my view, in respect of those applications it would not be appropriate togrant orders.

9. In respect of the applications under section 122, I will grant orders in respect of the breaches which do not pre-date the limitationperiod referred to in section 351A(1).

(Jonathan Harris)
Judge of the Court of First Instance
High Court

Mr Julian Yeung, instructed by Robertsons, for the applicants (in all cases)