Citic Ltd v. Company Registration Number 3116975 Ltd and Another

HCMP 2813/2024 and
HCMP 2815/2024

(Heard Together)

[2025] HKCFI 875

HCMP 2813/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2813 OF 2024

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AND

HCMP 2815/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2815 OF 2024

________________________

________________________

________________

(Heard Together)

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REASONS FOR JUDGMENT

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1.At the conclusion of the hearing, I made an order in terms of [6], [7] and [9] below. I now give my reasons.

2.The Plaintiff is a Hong Kong listed company (stock code: 267). It commenced these proceedings pursuant to section 42 of the Companies Ordinance (Cap 622) (“CO”) against:

(1)  Company Registration Number 3116975 Limited (“3116975 Ltd”), previously named CITIC International Industry Group Limited (中信國際產業集團有限公司), being the 1^st Defendant in HCMP 2813/2024; and

(2)  Zhongtian Xinhe International Industry Group Co., Limited (中天信和國際產業集團有限公司) (“Xinhe”), previously named Zhongxin Overseas International Trade Group Co., Limited (中信海外國際貿易集團有限公司), being the 1^st Defendant in HCMP 2815/2024.

3.The Plaintiff seeks the following reliefs:

(1)  A declaration that the following documents filed with the Companies Registry (“Impugned Documents”) are null and void:

(a)  3116975 Ltd: the Incorporation Form (Form NNC1) (Document Reference Number: 23301910744) (“Incorporation Form”) and the Articles of Association (Document Reference Number: 23301910745) (“Articles”), both submitted on 30 December 2021; and

(b)  Xinhe: the Annual Return (Form NAR1) (Document Reference Number: 23601714163) submitted on 4 July 2022 (“2022 AR”), and the Annual Return (Form NAR1) (Document Reference Number: 23202344482) submitted on 28 June 2023 (“2023 AR”);

(2)  An order that the Registrar of Companies (“Registrar”), being the 2^nd Defendant in both actions, do rectify the information on the Companies Register by redacting and/or removing references in the Impugned Documents to:

(a)  “CITIC Limited”, being the English name of the Plaintiff;

(b)  “中國中信股份有限公司”, being the Chinese name of the Plaintiff; and

(c)  “32/F CITIC Tower 1 Tim Mei Avenue Central HK”, being the registered office address of the Plaintiff;

(3)  An injunction restraining each of 3116975 Ltd and Xinhe from:

(a)  purporting to act, or holding itself out, as a company in which the Plaintiff has any interest or which is otherwise connected in any way with the Plaintiff; and

(b)  relying on or using the Impugned Documents in any way whatsoever.

4.I am satisfied that the Plaintiff has duly served the Court papers on 3116975 Ltd and Xinhe by leaving them at their last known registered addresses. Neither of them has filed any Acknowledgment of Service or appeared at the hearing. The Registrar maintains a neutral stance and is excused from attendance.

5.The Incorporation Form named the Plaintiff as a founder member of 3116975 Ltd. The Articles, the 2022 AR and the 2023 AR named the Plaintiff as a shareholder of 3116975 Ltd and Xinhe (as the case may be). I am satisfied on the evidence that the above information is factually inaccurate. The Plaintiff was never a founder member or shareholder of either company, and had no relationship or connection with them.

6.Under section 42(1)(b)(i) of the CO, the Court may, on application by any person, by order direct the Registrar to rectify any information on the Companies Register or to remove any information from it if the Court is satisfied, inter alia, that the information is factually inaccurate. By reason of [5] above, I ordered the Registrar to redact and/or in any other way remove the following information on the Companies Register:

(1)  Page 3 of the Incorporation Form: references to “中國中信股份有限公司”, “CITIC Limited” and “32/F CITIC Tower 1 Tim Mei Avenue Central HK” under the entry “Founder Members”;

(2)  Page 7 of the Incorporation Form: reference to “CITIC Limited” under the entry “Founder Member”, and the chop above the entry being the words “CITIC Limited” and “中國中信股份有限公司”;

(3)  Page 2 of the Articles: references to “CITIC Limited”, “中國中信股份有限公司” and “32/F CITIC Tower 1 Tim Mei Avenue Central HK” under the entry “Name(s), Address(es) and Description(s) of Signatory(ies)”;

(4)  Schedule 1 of the 2022 AR: references to “CITIC Limited”, “中國中信股份有限公司” and “32/F CITIC Tower 1 Tim Mei Avenue Central HK” under the entry “Particulars of Member(s) of a Non-listed Company (Section 13)” including the reference to “中國中信股份有限公司” in the “Remarks” column; and

(5)  Schedule 1 of the 2023 AR: references to “CITIC Limited”, “中國中信股份有限公司” and “32/F CITIC Tower 1 Tim Mei Avenue Central HK” under the entry “Particulars of Member(s) of a Non-listed Company (Section 13)”.

7.I also granted an injunction restraining 3116975 Ltd and Xinhe from relying on or using the Impugned Documents in any way whatsoever. The Court has power under section 42(5) of the CO to grant an order consequential upon an order for rectification of information on the Companies Register that appears to be just with respect to the legal effect (if any) of the information. Here, it is just to grant the injunction to prevent third parties from being misled that 3116975 Ltd and Xinhe are owned by a Hong Kong listed company. As submitted by Mr Tom Ng for the Plaintiff, given 3116975 Ltd and Xinhe have never been held by the Plaintiff as a shareholder, they have no loss to speak of if they are restrained from using the Impugned Documents. I declined to go further to grant the order under [3(3)(a)] above, which does not appear to be justified or necessary in the circumstances on the evidence before me.

8.I declined to grant the declaration under [3(1)] above. The fact that the Impugned Documents contain inaccurate information concerning shareholders does not per se mean they must have no legal effect or be regarded as void ab initio. This is unlike the situation where the filed documents are found to be forged or are deployed as instruments of fraud (Forever Up Holdings Ltd v Tong Yan Wa [2019] 5 HKC 478), or there are transactions or company procedures effected through the filed documents to be nullified (Ho Yu Shun v Project Space Ltd & Ors [2022] HKCFI 742), in which case a declaration may be justified. I also remind myself that it is not the normal practice of the Court to make a declaration without a trial on merits, unless justice requires it to do so. Here, the Plaintiff’s position is adequately protected by the order for rectification and the injunction. These Reasons for Judgment will also make clear that the Plaintiff is not a shareholder of 3116975 Ltd and Xinhe.

9.I ordered 3116975 Ltd and Xinhe to pay the costs of these proceedings. In Mainland proceedings commenced by the Plaintiff’s parent for trademark infringement, companies owned by 3116975 Ltd and Xinhe made use of the Impugned Documents to allege that the Plaintiff is a shareholder of such companies. I accept Mr Ng’s submission that one can infer from this that 3116975 Ltd and Xinhe were responsible for the creation and filing of the Impugned Documents, which necessitated the commencement of these proceedings, and the Plaintiff should therefore be entitled to recover its costs from them. I summarily assessed the Plaintiff’s costs in each action at HK$120,000.

10.Lastly, I thank Mr Ng for his assistance.

Mr Tom Ng, instructed by Reed Smith Richards Butler LLP, for the Plaintiff in both actions

The 1^st Defendant of both actions were not represented and did not appear

The attendance of the Registrar of Companies of both actions was excused