Re 銀河天成集團有限管理人

HCMP 658/2024

[2024] HKCFI 2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 658 OF 2024

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J U D G M E N T

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1.By an ex parte originating summons filed on 19 April 2024 by 北京中銀(南寧)律師事務所, the administrator (管理人) (the “Administrator”) appointed by the 廣西壯族自治區南寧市中級人民法院 (the “Guangxi Court”) over 銀河天成集團有限公司 (in liquidation) (the “Company”) seeks recognition and assistance from the Hong Kong court.

2.The application is made under the inherent jurisdiction of the court, as the Company is not a company wound up under the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap 32) such that the provisions under Cap 32 do not apply.

Background

3.The Company is established in the Mainland on 29 September 2000 and carried on business in investment management, enterprise management and investment consultancy in the Mainland until it was adjudged to be bankrupt by the Guangxi Court on 24 January 2022.

4.On 26 March 2024, the Guangxi Court issued a letter of request to the Hong Kong court (the “Letter of Request”) requesting for recognition and assistance in the terms set forth below:

“4. 公司債權人上海唐盛投資股份有限公司已單獨就公司曾經持有的（現已通過不公平優惠給予另一債權人）香港長城礦業有限公司的股權申請進行個別清償（案件編號：HCMP 620/2020，聆訊法官為ANTHONY H.K. CHAN），相關案件的執行程序目前正在香港高等法院進行中。根據《最高人民法院與香港特別行政區政府關於內地與香港特別行政區法院相互認可和協助破產程序的會談紀要》 及香港律政司就《會議紀要》發佈的實用指南等相關規定及文件，內地與香港特別行政區法院應相互認可和協助破產程序工作。為防止個別清償的進行，破産管理人向本院提出申請，要求本法院出具本請求書，向香港高等法院申請認可和協助。

5. 本法院茲請求香港高等法院作出以下命令及指示，以協助破產程序及該破產管理人。

註： 以上所稱「本法院」指廣西壯族自治區南寧市中級人民法院，以下「建議命令及指示」中的「本法院」指香港高等法院。

建議命令及指示

1. 銀河天成集團有限公司（「公司」）的破產清算以及被委任的破產管理人[北京中銀(南寧)律師事務所]獲本法院承認。

2. 公司破產管理人在香港特別行政區擁有並可行使以下權力：

(a) 向第三方要求並索取有關公司及其市場推廣、成立、業務往來、賬目、資產、負債或其他事務(包括破產原因)的文件和資料；

(b) 在本法院所在的司法管轄區內尋找、保護、保全、佔有和控制所有公司有權或看似有權獲得的財產和資產；

(c) 尋找、保護、保全、佔有以及控制賬簿、文件和公司記錄，包括在本法院所在的司法管轄區內的會計和法定記錄，並調查公司資產以及導致破產的情况。上述賬簿、文件和公司記錄包括：

(i) 公司與其審計師、以及其他第三方之間的電子郵件往來和其他通信；

(ii) 公司向其審計師提供並由審計師向公司提供的與審計工作有關的文件和資訊；

(d) 採取一切必要措施以防止處置公司資產的行為，特別是在本法院所在管轄區內以公司名義或在公司控制下的任何銀行賬戶上取得任何餘款；

(e) 以公司的名義代表公司經營、開立或關閉任何銀行賬戶，以收集資產並支付破產管理人的成本和開支；

(f) 聘用大律師、事務律師、其他律師、會計師或破產管理人認為合適的其他代理人和專業人士，以建議或援助他們行使本命令下的權力和職責；

(g) 當有必要補充和執行本命令所述的權力時，可以其本人名義或者是代表公司利益使用公司名義展開訴訟及向本法院提出申請，包括：

(i) 要求披露、提供文件或審查第三方的命令，以利便破產管理人調查公司的資產和事務，以及導致公司破產的情况；

(ii) 任何其他附屬濟助，例如凍結令、搜查令、檢獲令等法律程序；

3. 破產管理人授權或者要求完成的工作均可由所有或任何一名破產管理人的授權代表進行；

4. 如果破產管理人基於本命令對其任命的承認，希望向本法院提出任何擱置訴訟程序的要求或其他指示，該申請應由專責處理公司及破產案件聆訊的法官審理。破產管理人應以書面方式向專責處理公司及破產案件聆訊的法官的書記提出，尋求案件管理指示以處理他們希望根據本命令提出的任何申請；

5. 破產管理人有提交申請的自由；

6. 本次申請的費用將從公司資產中扣除，作為清算費用的一部份。

現謹確認並保證，上述請求並未受到中華人民共和國企業破產法及相關司法解釋的限制。”

(English translation:

4. Shanghai Tangsheng Investment Co., Ltd, a creditor of the Company, made a sole application for payment to individual creditor in relation to the equity previously held by the Company [which has now been given to another creditor in the manner of unfair preference] in Hong Kong Changcheng Mining (Development) Company Limited [Case No.: HCMP 620/2020, before (Master) ANTHONY H.K. CHAN]. The execution procedures of the case are on-going in the High Court of Hong Kong. According to the rules and documents including the “Record of Meeting of the Supreme People’s Court and the Government of the Hong Kong Special Administrative Region on Mutual Recognition of and Assistance to Bankruptcy (Insolvency) Proceedings between the Courts of the Mainland and of the Hong Kong Special Administrative Region” (“Record of Meeting”) and the “Practical Guide” issued by the Department of Justice in regards to the “Record of Meeting”, there shall be mutual recognition and assistance in insolvency proceedings between the courts of the Mainland and of the Hong Kong Special Administrative Region. In the hope of debarring payment to individual creditor, the bankruptcy administrator made an application to this Court for the issuance of this Letter of Request to seek recognition and assistance from the High Court of Hong Kong.

5. This Court hereby requests the High Court of Hong Kong to make the following orders and directions in order to assist the liquidation procedures and the bankruptcy administrator.

Note: “This Court” mentioned above refers to Nanning Municipal Intermediate People’s Court of Guangxi Zhuang Autonomous Region, whereas “this Court” mentioned in the “Suggested order and directions” below refers to the High Court of Hong Kong.

Suggested order and directions

1. The insolvent liquidation of Yinhe Tiancheng Group Co., Ltd [“the Company”] and the appointment of the bankruptcy administrator [Beijing Zhong Yin (Nanning) Law Firm] be recognized by this Court.

2. The bankruptcy administrator of the Company has and may exercise in the Hong Kong Special Administrative Region the following powers:

(a) to request and receive from third parties documents and information concerning the Company and its promotion, formation, business dealings, accounts, assets, liabilities or affairs [including the cause of its insolvency];

(b) to locate, protect, secure and take into possession and control all assets and property within the jurisdiction of this Court to which the Company is or appears to be entitled;

(c) to locate, protect, secure and take into possession and control the books, papers, and records of the Company including the accountancy and statutory records within the jurisdiction of this Court and to investigate the assets and affairs of the Company and the circumstances which gave rise to its insolvency. The books, records and documents of the Company include:

(i) email exchanged and other correspondences between the Company and its auditors, and the Company and other third parties;

(ii) documents and information provided by the Company to its auditors and provided by the auditors to the Company in relation to the audit work;

(d) to take all necessary steps to prevent any disposal of the Company’s assets and, in particular, to secure any credit balances in any bank accounts in the name or under the control of the Company within this jurisdiction;

(e) to operate and open or close any bank accounts in the name and on behalf of the Company for the purpose of collecting the assets and paying the costs and expenses of the bankruptcy administrator;

(f) to retain and employ barristers, solicitors or attorneys, accountants or such other agents or professional persons as the bankruptcy administrator considers appropriate for the purpose of advising or assisting in the execution of their powers and duties under this Order;

(g) so far as may be necessary to supplement and to effect the powers set out herein, to bring legal proceedings and make all such applications to this Court, whether in its own name or in the name of the Company, on behalf of and for the benefit of the Company, including any applications for:

(i) orders for disclosure, the production of documents or examination of third parties to facilitate their investigations into the assets and affairs of the Company and the circumstances which gave rise to its insolvency;

(ii) ancillary relief such as freezing orders, search and seizure orders in any legal proceedings commenced;

3. Anything that is authorized or required to be done by the bankruptcy administrator may be done by all or any one or more of the persons appointed;

4. If the bankruptcy administrator wishes to apply for a stay or other directions in respect of proceedings in the High Court of any sort as a consequence of the recognition of their appointment by this Order, such application shall be listed before the judge in charge of the Companies and Bankruptcy List, the bankruptcy administrator shall write to the clerk to the judge in charge of the Companies and Bankruptcy List seeking case management directions for the determination of any application that it wishes to make pursuant to this order;

5. The bankruptcy administrator does have liberty to apply;

6. The costs of this application be paid out of the assets of the Company as an expense of the liquidation.

This Court confirms and guarantees that, the above requests have not been restricted by the Enterprise Bankruptcy Law of the People’s Republic of China and the relevant judicial interpretations.)

5.In the Letter of Request, the Guangxi Court described (1) the background leading to the appointment of the Administrator; (2) the duties of the Administrator under the Enterprise Bankruptcy Law (the “EBL”); (3) the shares in Hong Kong Changcheng Mining (Development) Company Limited previously registered in the Company’s name; and (4) the bankruptcy order made against the Company.

6.At the hearing on 25 June 2024, this court raised the query that as the Administrator has confirmed that the proceedings in HCMP 620/2020 were no longer relevant, what other actions needed to be the carried out by the Liquidator. The hearing was adjourned pursuant to the request of the Administrator to gather further instructions and evidence.

7.A revised letter of request dated 9 July 2024 from the Guangxi Court (the “Revised Letter of Request”) was subsequently produced. The relevant additional request for assistance is as follows:

“4. 申請認可和協助的原因

(1) 首先，公司債權人上海唐盛投資股份有限公司（下稱「上海唐盛」）已單獨就公司曾經持有的（現已通過不公平優惠給予另一債權人）香港長城礦業有限公司（下稱「香港長城」）的股權申請執行（案件編號：HCMP 620/2020，聆訊法官為ANTHONY H. K. CHAN）。相關案件的執行程序目前正在香港高等法院進行中，在HCMP 2144/2022案件中，上海唐盛要求香港長城開示股東名册，管理人無法了解在此之後的相關情況，因此，管理人需要獲得香港高等法院的認可和協助，以便獲得了解該執行案件的後續情況及申請撤銷上海唐盛押記令的頒令等權力。

(2) 其次，管理人在深圳市中級人民法院查詢（2019）粵03執5040號案卷材料時，發現杭州旭達等五方簽署的《債權轉讓協議》（協議編號：YX-XD-20220122）附件中列明：「……5、2019年12月29日，杭州旭達與銀河集團就其持有的香港長城125,489,600股股份簽的《股份買賣書》（SOLD NOTE & BOUGHT NOTE）；6.2020年2月3日，香港稅務局認定附件五《股份買賣書》情形下無需繳納的《加蓋印花申請表》」，該兩份附件材料未隨《債權轉讓協議》存檔至深圳市人民法院。故管理人需申請香港長城或香港稅務局披露公司與杭州旭達貿易有限公司（下稱「杭州旭達」）簽署的《股份買賣書》《加蓋印花申請表》等材料，以查詢上述第（1）點中提及的股權以不公平優惠轉讓給予債權人杭州旭達的事實，從而進一步要求杭州旭達就屬於遜值交易部份向公司支付公允價款。

(3) 再次，貴州長征天成控股股份有限公司(下稱「貴州長征」)公佈的審計報告顯示，2016年至2019年期間，貴州長征持有19%的香港長城股份公允價值為人民幣5 - 6億元左右，經管理人測算該期間公司持有的香港長城32%股份市值約在人民幣9 – 10億元左右。此外，2024年2月20日貴州長征在《關於對上海證券交易所業績預告問詢函回復的公告》中公佈，2020年貴州長征持有的17%香港長城股份得到分紅人民幣1846.55萬元，2021年貴州長征持有的17%香港長城股份得到分紅人民幣6425.01萬元。根據管理人目前掌握的公司銀行流水，未顯示公司曾獲得香港長城支付的分紅，管理人需要在香港查詢香港長城是否曾在公司持股期間向公司支付過任何分紅，若存在未分紅的情況，管理人將依法進行追索該部份屬於公司的財產。因香港長城為在香港注册的公司，此項工作需要獲得香港高等法院的認可和協助。

依據《最高人民法院與香港特別行政區政府關於內地與香港特別行政區法院相互認可和協助破產程序的會談紀要》及香港律政司就《會議紀要》發布的實用指南等相關規定及文件，內地與香港特別行政區法院應相互認可和協助破產程序工作。結合上述三項理由，管理人需要需要獲得香港高等法院的認可和協助，以便獲得行使在香港高等法院所在的司法管轄區內尋找、保護、保全、佔有和控制所有公司有權或看似有權獲得的財產和資產等權力，即包括撤銷上海唐盛的押記令及了解該執行案件的後續情況，防止其獲得個別清償；調查公司與杭州旭達等公司之間的股權轉讓文件以便後續開展向杭州旭達追回屬於遜值交易部份的股權轉讓款項；調查公司持有32%香港長城股份期間是否取得分紅的相關情況及追索未分配的分紅等。

綜上，破產管理人向本法院提出申請，要求本法院出具本請求信，向香港高等法院申請認可和協助。”

(English Translation:

4. Reasons for Application for Recognition and Assistance

(1) Firstly, Shanghai Tangsheng Investment Co., Ltd [hereafter “Shanghai Tangsheng”], a creditor of the Company, made a sole application for execution in relation to the equity previously held by the Company [which has now been given to another creditor in the manner of unfair preference] in Hong Kong Changcheng Mining (Development) Company Limited [hereafter “Hong Kong Changcheng”] [Case No.: HCMP 620/2020, before (Master) ANTHONY H.K. CHAN]. The execution procedures of the case are on-going in the High Court of Hong Kong. In HCMP2144/2022, Shanghai Tangsheng demanded Hong Kong Changcheng to disclose its Register of Shareholders. The subsequent development is beyond the Administrator’s knowledge. As such, the administrator requires recognition by and assistance from the High Court of Hong Kong in order to be empowered to gain knowledge into the subsequent development of the execution case, apply to dismiss the charging order of Shanghai Tangsheng, etc.

(2) Secondly, having been granted access to the case file materials of the case [2019] Yue 03 Zhi 5040 by the Shenzhen Intermediate People’s Court, the administrator discovered that the following were listed in the Attachments to the Creditor’s Rights Transfer Agreement [Agreement No.: YX-XD-20220122] entered into by 5 parties including Hangzhou Xuda: “ … 5. 29 December 2019, a Sold Note and Bought Note entered into between Hangzhou Xuda and Yinhe Group in relation to the 125,489,600 shares it held in Hong Kong Changcheng; 6. 3 February 2020, a Stamping Request in which the Inland Revenue Department of Hong Kong confirmed that payment was not required under the circumstances of the Sold Note and Bought Note in Attachment 5.” The two Attachments were not filed together with the Creditor’s Rights Transfer Agreement with the Shenzhen People’s Court. As such, the administrator needs to make an application for disclosure by Hong Kong Changcheng or the Inland Revenue Department of Hong Kong of materials such as the Sold Note and Bought Note entered into between the Company and Hangzhou Xuda Trading Co., Ltd [hereafter “Hangzhou Xuda”], and the Stamping Request, in order to look into the facts in relation to the transfer of equity to the Creditor, Hangzhou Xuda, in the manner of unfair preference referred to in (1) above, so as to take the further step of demanding Hangzhou Xuda to pay a fair price to the Company for the portion of the transaction conducted at an undervalue.

(3) Further, it is shown in the audit report as published by Guizhou Changzheng Tiancheng Holding Co., Limited (hereafter “Guizhou Changzheng”) that during the period of 2016 to 2019, Guizhou Changzheng held 19% of shares of Hong Kong Changcheng at the fair value of RMB 500 to 600 million approximately. As estimated by the administrator, during that period of time, the 32% shares of Hong Kong Changcheng held by the Company was at the value of RMB 900 to 1000 million approximately. Also, on 20^th February 2024, Guizhou Changzheng announced in “Public Announcement regarding Reply to Inquiry Letter about Profit Alert from Shanghai Stock Exchange” that in 2020, the 17% shares of Hong Kong Changcheng held by Guizhou Changzheng was distributed dividend of RMB 18,465,500, in year 2021, the 17% shares of Hong Kong Changcheng held by Guizhou Changzheng was distributed dividend of RMB 64,250,100. According to the bank statements obtained by the administrator presently, they did not show that the Company was ever paid the dividend from Hong Kong Changcheng. The administrator needs to make enquiries in Hong Kong to ascertain if Hong Kong Changcheng had ever paid any dividend to the Company when it held the shares. If there was any unpaid dividend, the administrator will pursue to recover this particular part which belongs to the assets of the Company according to the law. Since Hong Kong Changcheng is a company registered in Hong Kong, this work requires the recognition and assistance from the High Court of Hong Kong.

According to the rules and documents including the “Record of Meeting of the Supreme People’s Court and the Government of the Hong Kong Special Administrative Region on Mutual Recognition of and Assistance to Bankruptcy (Insolvency) Proceedings between the Courts of the Mainland and of the Hong Kong Special Administrative Region” (“Record of Meeting”) and the “Practical Guide” issued by the Department of Justice in regards to the “Record of Meeting”, there shall be mutual recognition and assistance in insolvency proceedings between the courts of the Mainland and of the Hong Kong Special Administrative Region. Given the 3 reasons mentioned above, the administrator needs to seek recognition and assistance from the High Court of Hong Kong in order to exercise the powers to locate, protect, secure and take into possession and control all assets and property within the jurisdiction of this Court to which the Company is or appears to be entitled, namely, including setting aside the charging order of Shanghai Tangsheng, and to gain knowledge of the subsequent development of the execution case, in order to prevent it from getting individual debt settlement; to investigate into the shares transfer documents among the Company, Hangzhou Xuda and etc., to facilitate the subsequent commencement of the recovery of the shares transfer sums regarding the portion of the transaction at an undervalue; to investigate the relevant circumstances as to whether the dividend concerning the 32% shares of Hong Kong Changcheng held by the Company during the period was distributed and to recover the unpaid dividend, and etc.

In view of the above, the bankruptcy administrator made an application to this Court for the issuance of this Letter of Request to seek recognition and assistance from the High Court of Hong Kong.)

8.In the affidavit evidence in support, the Administrator has also mentioned that there is suspicion that a transfer by the Company on 29 December 2019 of its 32% shareholding in a Hong Kong company, Hong Kong Changcheng Mining (Development) Company Limited, was at an undervalue, and the Administrator would need to investigate with the Inland Revenue Department on why the transfer attracted no stamp duty.

9.So far as the duties of the Administrator are concerned, it was stated in the Letter of Request in this way:

“3. 破產管理人就公司破產清算的職責及權利的範圍：

(1) 接管債務人的財產、印章和賬簿、文書等資料；

(2) 調查債務人財產狀况，製作財產狀况報告；

(3) 決定債務人的內部管理事務；

(4) 決定債務人的日常開支和其他必要開支；

(5) 在第一次債權人會議召開之前，決定繼續或者停止債務人的營業；

(6) 管理和處分債務人的財產；

(7) 代表債務人參加訴訟、仲裁或者其他法律程序；

(8) 提議召開債權人會議；

(9) 人民法院認為管理人應當履行的其他職責。

註： 根據《中華人民共和國企業破產法》第二十五條的規定，以上係破產管理人職責及權利的範圍，「債務人」即公司。”

(English translation:

3. The scope of the bankruptcy administrator’s powers and duties in relation to the liquidation of the Company:

(1) taking over the property, seals, account books, documents and other data of the debtor;

(2) investigating into the financial position of the debtor and preparing a report on such position;

(3) deciding on the matters of the debtor’s internal management;

(4) deciding on day-to-day expenses and other necessary expenditures;

(5) before the holding of the first creditors’ meeting, deciding whether to continue or suspend the business of the debtor;

(6) managing and disposing of the debtor’s property;

(7) participating in legal actions, arbitrations or any other legal proceedings on behalf of the debtor;

(8) proposing to hold a creditors’ meeting;

(9) performing other duties that the People’s Court considers that he shall so perform.

Note: Pursuant to the provisions of Article 25 of the Enterprise Bankruptcy Law of the People’s Republic of China, the above mentioned is the scope of a bankruptcy administrator’s powers and duties, and “the debtor” refers to the Company.)

Applicable principles

10.The applicable principles have been set out by Linda Chan J in the case of Re: Guangdong Overseas Construction Corporation[1], which I respectfully adopt:

“14. On 14 May 2021, the SPC and the Government of Hong Kong reached a consensus in relation to mutual recognition of and assistance to insolvency proceedings between the courts of the Mainland and of Hong Kong (‘Cooperation Mechanism’) and published the following documents:

(1) The ‘Record of Meeting of the Supreme People’s Court and the Government of the Hong Kong Special Administrative Region on Mutual Recognition of and Assistance to Bankruptcy (Insolvency) Proceedings between the Courts of the Mainland and of the Hong Kong Special Administrative Region’ signed by the Secretary for Justice and the SPC on 14 May 2021 (‘Record of Meeting’).

(2) The ‘Procedures for a Mainland Administrator’s Application to the Hong Kong SAR Court for Recognition and Assistance - Practical Guide’ issued by the Department of Justice (‘Practical Guide’).

(3) ‘The Supreme People’s Court’s Opinion on Taking Forward a Pilot Measure in relation to the Recognition of and Assistance to Insolvency Proceedings in the Hong Kong Special Administrative Region’ (‘SPC’s Opinion’).

15. The Record of Meeting describes the types of application for recognition and assistance which may be made as follows:

(1) Intermediate People’s Court in the pilot areas designated by the Supreme People’s Court may initiate cooperation with the courts of the Hong Kong Special Administrative Region on mutual recognition of and assistance to bankruptcy proceedings.

(2) A liquidator or provisional liquidator in insolvency proceedings in the Hong Kong Special Administrative Region may apply to the relevant Intermediate People’s Court at a pilot area in the Mainland for recognition of compulsory winding up, creditors’ voluntary winding up and corporate debt restructuring proceedings brought by a liquidator or provisional liquidator as sanctioned by a court of the Hong Kong Special Administrative Region in accordance with the laws of the Hong Kong Special Administrative Region, recognition of his office as a liquidator or a provisional liquidator, and grant of assistance for discharge of his duties as a liquidator or a provisional liquidator.

(3) An administrator in Mainland bankruptcy proceedings may apply to the High Court of the Hong Kong Special Administrative Region for recognition of bankruptcy liquidation, reorganisation and compromise proceedings under the [EBL], recognition of his office as an administrator, and grant of assistance for discharge of his duties as an administrator.

16. The following points should be noted:

(1) In respect of an application for recognition and assistance made by a Mainland court, the request has to be initiated by a court in the pilot areas designated by the SPC[2] (‘Pilot Areas’) (para.1). Although para.3 of the Record of Meeting refers to an application made by a Mainland administrator to the Hong Kong court for recognition and assistance, it has to be read in the context that the Cooperation Mechanism is for mutual recognition and assistance between the courts of the Mainland and Hong Kong as stated in the first paragraph of the Record of Meeting.

(2) Similarly, an application made by a liquidator[3] appointed by the Hong Kong court for recognition and assistance has to be made to a court in the Pilot Areas (para.2).

(3) The Practical Guide and the SPC’s Opinion prescribe the framework of mutual recognition and assistance of insolvency proceedings between the courts of the Mainland and of Hong Kong and inform the practitioners on the manner in which an application is to be made to the relevant court. They do not purport to confer jurisdiction on the relevant court to seek recognition and assistance. The jurisdiction is to be found in existing laws. As far as Hong Kong court is concerned, the jurisdiction to recognize and assist office-holder appointed by a court of another jurisdiction is to be found in common law (CEFC, [8]-[12]; Re Global Brands Group Holding Ltd (in liq) [2022] 3 HKLRD 316, [15]-[21], per Harris J; Singularis Holdings Ltd v PricewaterhouseCoopers [2015] AC 1675, [10]-[13] & [19], per Lord Sumption).

17. The approach of the court in dealing with an application for recognition of foreign insolvency proceedings and assistance to the foreign office-holder may be summarised as follows:

(1) The power at common law to recognise and assist foreign office-holder does not depend on winding up proceedings having been commenced against the company in the assisting court, as the court is asked to recognise the office-holder appointed in the place of incorporation as the lawful agent in accordance with principle of private international law (Singularis, [12], [19]; Global Brands, [45]).

(2) The applicant has to satisfy the court that:

(a) the foreign insolvency proceedings are collective insolvency proceedings which include proceedings opened in a civil law jurisdiction (CEFC, [8]-[9]);

(b) the foreign insolvency proceedings are conducted in the jurisdiction in which the company’s centre of main interest is located (CEFC, [8]; Global Brands, [17], [31]-[42]); and

(c) the assistance is necessary for the administration of a foreign winding up or the performance of the office-holder’s functions, and the order is consistent with the substantive law and public policy of the assisting court so it is not available for purposes which are properly the subject of other schemes (Singularis, [25]).

(3) As to the extent and terms of assistance to be provided to the office-holder, the authorities show that the court has granted assistance to a foreign office-holder (a) to take control of the assets of the company; (b) to stay the local proceedings against the assets of the company; and (c) to obtain and gather information and documents relating to the company from third parties (Singularis, [10], [19], [25]; Global Brands, [45]). ”

Discussion

11.In the present case, the request for assistance is made by the Guangxi Court, which is not a court in the Pilot Areas. As held by Harris J in Re HNA Group Co., Ltd.[4] and endorsed by Linda Chan J in Re: Guangdong Overseas Construction Corporation[5], although the Cooperation Mechanism does not extend to the Guangxi Court, this is not a consideration which should be taken into account as (1) reciprocity is not a requirement for recognition and assistance under common law; and (2) the issue whether it is appropriate for a court outside the Pilot Areas to apply for recognition and assistance is a matter for the Supreme People’s Court. The Cooperation Mechanism and the Practical Guide merely prescribe the procedure and the manner in which an application is to be made. The power of the court to recognize and assist office-holder appointed by a court of another jurisdiction derives from common law, and the approach of the court is to ask whether the criteria for recognition and assistance are satisfied by the applicant.

12.Applying the above principles to the facts of the present case: I am satisfied that this is an appropriate case for the court to make the Order set out in §13 below for the following reasons:

(1) The insolvency proceeding of the Company is a collective insolvency proceeding under the supervision of the Guangxi Court. This is reinforced by p.1 of the Letter of Request which describes the duties of the Administrator under the EBL.

(2) The insolvency proceeding of the Company is conducted in the Mainland, which is both the place of incorporation of the Company and its centre of main interest.

(3) The assistance sought in the Revised Letter of Request is necessary for the administration of the Company and the performance of the Administrator’s functions given that the Company needs to investigate into whether the Company’s valuable asset (being 32% of shares in Hong Kong Changcheng Mining (Development) Company Limited) was transacted at an undervalue. The Administrator is under a duty to make investigations with the Inland Revenue Department on why the transfer of the 32% shareholding in Hong Kong Changcheng Mining (Development) Company Limited attracted no stamp duty.

(4) The Assistance sought in the Revised Letter of Request is necessary to investigate if the Company had been deprived of the bonus/dividends from Hong Kong Changcheng Mining (Development) Company Limited.

(5) The assistance is also necessary to prevent individual creditors to attempt enforcement in Hong Kong with a view to circumvent the insolvency proceedings in Mainland which is under the supervision of the Guangxi Court.

(6) The Order is consistent with the substantive law and public policy of the court.

13.The Order is in the following terms:

(1) The insolvent liquidation of 銀河天成集團有限公司 in the Mainland of the People’s Republic of China (the “Company”) and the appointment of 北京中銀(南寧)律師事務所 of 9^th Floor, High-speed Rail Times Square, No 1 Tongdadong Road, Qingxiu District, Nanning, Guangxi, the People’s Republic of China (中國廣西南寧市青秀區通達東路1號高鐵時代廣場9層), the administrator (管理人) (“Administrator”) appointed by the Nanning Municipal Intermediate People’s Court of Guangxi Zhuang Autonomous Region (廣西壯族自治區南寧市中級人民法院) be recognised by this Court;

(2) The Administrator has and may exercise in the Hong Kong Special Administrative Region the following powers for the purpose of carrying out its functions as administrator of the Company:

(a) to request and receive from third parties documents and information concerning the Company and its promotion, formation, business dealings, accounts, assets, liabilities or affairs including the cause of its insolvency;

(b) to locate, protect, secure and take into possession and control all assets and property within the jurisdiction of this Court to which the Company is or appears to be entitled;

(c) to locate, protect, secure and take into possession and control the books, papers, and records of the Company including the accountancy and statutory records within the jurisdiction of this Court and to investigate the assets and affairs of the Company and the circumstances which gave rise to its insolvency. The books, records and documents of the Company include:

(i) email exchanged and other correspondences between the Company and its auditors, and the Company and other third parties;

(ii) documents and information provided by the Company to its auditors and provided by the auditors to the Company in relation to the audit work;

(d) to take all necessary steps to prevent any disposal of the Company’s assets and, in particular, to secure any credit balances in any bank accounts in the name or under the control of the Company within this jurisdiction;

(e) to operate and open or close any bank accounts in the name and on behalf of the Company for the purpose of collecting the assets and paying the costs and expenses of the bankruptcy administrator;

(f) to retain and employ barristers, solicitors or attorneys, accountants or such other agents or professional persons as the bankruptcy administrator considers appropriate for the purpose of advising or assisting in the execution of their powers and duties under this Order;

(g) so far as may be necessary to supplement and to effect the powers set out herein, to bring legal proceedings and make all such applications to this Court, whether in its own name or in the name of the Company, on behalf of and for the benefit of the Company, including any applications for:

(i) orders for disclosure, the production of documents or examination of third parties to facilitate their investigations into the assets and affairs of the Company and the circumstances which gave rise to its insolvency;

(ii) ancillary relief such as freezing orders, search and seizure orders in any legal proceedings commenced;

(3) Anything that is authorised or required to be done by the Administrator may be done by all or any one or more of the persons appointed;

(4) If the Administrator wishes to apply for a stay or other directions in respect of any proceedings in the High Court of any sort as a consequence of the recognition of their appointment by this Order, such application shall be listed before the judge in charge of the Companies and Bankruptcy List, the Administrator shall write to the clerk to the judge in charge of the Companies and Bankruptcy List seeking case management directions for the determination of any application that it wishes to make pursuant to this order;

(5) The Administrator do have liberty to apply; and

(6) The costs of this application be paid out of the assets of the Company as an expense of the liquidation.

Mr Ivan Lee, of Ivan Lee & Co, for the Administrator