Re China Merchants Holdings (International) Co Ltd

HCMP 767/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 767 OF 2006

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Before: Hon Kwan J in Court

Date of Hearing: 25 May 2006

Date of Judgment: 25 May 2006

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J U D G M E N T

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1.This is an application by Guanfair Finance and Investments Limited (“the applicant”) to rectify the register of members of China Merchants Holdings (International) Company Limited (“the Company”), by striking out the name of HKSCC Nominees Limited as the holder of 720,000 shares of the Company (“the Shares”), and inserting in the place thereof the name of the applicant as the holder of the Shares.  The applicant also seeks consequential relief upon the rectification of the register of members.  This application is made under section 100 of the Companies Ordinance, Cap. 32.

2.The application is not opposed by HKSCC Nominees Limited or by the Company.

3.The circumstances giving rise to the application may be stated as follows.

4.As at 30 May 2000, the applicant owned the Shares and held them in an account maintained by Goldman Sachs International (“GS”) with the Central Clearing and Settlement System (“CCASS”).  The applicant is and remains the beneficial owner of the Shares.

5.On 26 May 2000, at the request of Guangdong Enterprises (Holdings) Limited (“GDE”), an indirect parent company of the applicant at the time, the applicant withdrew, inter alia, the Shares from its account maintained with GS.

6.On 31 May 2000, the applicant was informed by GS that the Shares had been withdrawn on behalf of the applicant by Standard Chartered Bank, the custodian agent of GS, on the same day and that the relevant documents were available for collection.  The documents collected by the applicant from GS were a stock withdrawal receipt dated 31 May 2000 from Hong Kong Securities Clearing Company Limited showing withdrawal of the Shares, the share certificates, and a blank form of transfer executed by HKSCC Nominees Limited, the registered shareholder in respect of the Shares.  Copies were then made of these documents and the originals were passed on to GDE in June 2000.

7.Following the restructuring of GDE, GDE passed to the applicant in June 2001 the share certificates and the stock withdrawal receipt, but not the original form of transfer.  It was not realised by the applicant at that time that the transfer form was a necessary document until the end of 2002, when the applicant wanted to sell the Shares.

8.Despite a thorough search of the relevant files, the applicant has not been able to find the original transfer form.

9.Between 2003 and 2005, the applicant attempted to obtain a replacement transfer form and was not successful.  Hence this application is made.

10.I am satisfied that the applicant is entitled to apply for rectification under section 100, as a person whose name is omitted from the register of members without sufficient cause.  The applicant is at all times the beneficial owner of the Shares.

11.It is confirmed by the share registrar of the Company that the share certificates of the Shares are still registered in the name of HKSCC Nominees Limited.  It does not appear that the interest of any third party would be prejudiced by the rectification.  I ought to exercise my discretion to rectify the register of members in this situation.

12.I would also grant the consequential relief upon rectification.  There will be an order in terms of the draft as amended in the way I have indicated to counsel.

Mr Jose-Antorio Maurellet, instructed by Messrs Linklaters, for the Applicant

The Company, absent