Read the full judgment text of HCMP 2749/2012 on BabelCite. This Court of First Instance judgment was delivered on 8 March 2016 before Au-Yeung J.
Civil contempt – committal – breach of production orders – Companies Ordinance (Cap 32) s.221 – winding-up – liquidator's investigation into affairs of company – 2011 Order and 2012 Order requiring defendants to produce documents – defendants' defences of ignorance, lack of specificity, no possession, and no proof of existence – Ignorance Defence rejected where defendants were alter egos of company and related companies and retained management control through corporate nominee directors even after ceasing to be directors in 2001 – Lack of Specificity Defence rejected where the §2 Order and Schedule 2 contained no material ambiguity and the word 'including' in the §2 Order was non-exhaustive with the guiding test being custody or power – No Possession Defence rejected where the Company and the related companies (HPCL, KA, Huifa, Gee Ming and HHL) were the alter egos of Koo and Ling, so that their documents were in the custody or power of the defendants, and knowledge of the right to obtain the documents was not required – No Proof of Existence Defence partially upheld where the Liquidator failed to prove existence beyond reasonable doubt for the balance of documents in many classes, although Post-Deadline Documents located in Shanghai Office and warehouses showed existence and contempt in respect of those documents – Requisite state of mind established where defendants persistently failed to cooperate, made belated and inadequate disclosure three years after first request, and gave inconsistent evidence – Re Bramblevale Ltd principle applied – Kao, Lee & Yip v Koo Hoi Yan followed on legal principles of contempt – Joint and Several Liquidators of Akai Holdings Ltd v Grande Holdings Ltd applied to distinguish s.221 order from committal order – B v B and Re Tecnion Investments Ltd applied to alter-ego doctrine – Defendants each found guilty of contempt; matter adjourned for sentencing – Costs order nisi in favour of Liquidator on party and party basis.
Legal issues: Ignorance Defence — whether defendants had knowledge and control of Company's affairs · Lack of Specificity Defence — whether the 2011 Order was sufficiently specific · No Possession Defence — whether documents were in defendants' custody or power · No Proof of Existence Defence — whether documents existed at time of orders · Requisite state of mind for contempt
Outcome: Both defendants (Koo Siu Ying and Ling Meng Chu Pearl) found guilty of contempt of court for breach of §2 of the 2011 Order and the 2012 Order. Matter adjourned for sentencing within 4 months.
Cited by 5 cases · Cites 7 cases