Re Hong Kong Shin Yat Tong Moral Association

HCMP 1682/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1682 OF 2005

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Before: Hon Kwan J in Chambers

Date of Hearing: 29 September 2005

Date of Decision: 29 September 2005

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D E C I S I O N

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1.This is an originating summons made ex parte under section 111(2) of the Companies Ordinance, Cap. 32.  It was taken out by Hong Kong Shin Yat Tong Moral Association (“the Association”).

2.The Association seeks an order that a general meeting of the Association be called and that one member of the Association present in person or by proxy shall be deemed to constitute a meeting.

3.The Association was incorporated on 26 March 1982 with limited liability guaranteed by its members.  Its name was changed to its present name by special resolutions passed on 17 December 2000.

4.At the board meeting of the Association on 21 November 2004, it was resolved that the annual general meeting of the Association for the year 2004 should be held on 23 January 2005.  The annual general meeting preceding that held on 23 January 2005 was held on 22 November 2003.  The board had decided to wait until financial reports were prepared before the 2004 annual general meeting was to be held.  It was unaware that an annual general meeting has to be held in every calendar year and that the 2004 annual general meeting had to be held in 2004.

5.On 23 January 2005, the annual general meeting was held and this was adjourned to 27 February 2005 by a board meeting of the Association on 27 January 2005.

6.At the adjourned annual general meeting on 27 February 2005, a resolution was passed in respect of the only outstanding matter on the agenda, that is to approve director’s report, auditor’s report and financial statements for the year ended 31 March 2004.

7.Thus, an annual general meeting had been held in respect of 2004, the only reason for this application directing the Association to hold an annual general meeting is to comply with the requirements of section 111 and clause 11 of the articles of association.

8.Clause 11 of the articles of association provides that a general meeting shall be held once in every calendar year.

9.Section 111(1) imposes a dual responsibility.  An annual general meeting must be held in each year and within 15 months after the preceding annual general meeting.  Hence, the meeting on 23 January 2005 was not in compliance with section 111(1).  The company and every officer of the company who is in default with this requirement is liable to a fine under section 111(5).

10.Section 111(2) provides that if there is default in holding a meeting in compliance with sub-section (1), the court may, on the application of any member of the company, call or direct the calling of a general meeting and give ancillary or consequential directions, including a direction that one member of the company present in person or by proxy shall be deemed to constitute a meeting.

11.Section 111(3) provides that a general meeting held pursuant to sub-section (2), shall, subject to any directions of the court, be deemed to be an annual general meeting, but where the meeting so held is not held in the year in which the default occurred, it shall not be treated as the annual general meeting for the year in question unless at the meeting the company resolves that it shall be so treated.

12.Section 111(4) provides where the company resolves the meeting shall be so treated, a copy of the resolution shall be forwarded to the Registrar of Companies within 15 days of passing thereof.

13.It is appropriate to grant relief in these circumstances.  I make an order in terms of the draft order submitted to me as amended.

Mr J. Fung of Messrs T. C. Lau & Co., for the Applicant