Re Kong Wah Holdings Ltd (in Liquidation)

HCCW 49/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO. 49 OF 2000

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AND

HCCW 50/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO. 50 OF 2000

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(Heard together)

Before: Hon. Kwan J. in Chambers (not open to Public)

Date of Hearing: 4 November 2005

Date of Decision: 4 November 2005

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D E C I S I O N

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1.I have an ex-parte application by the liquidators of Akai Holdings Limited and Kong Wah Holdings Limited for leave to issue 4 protective writs against various groups of defendants under sections 199(3) and 200(3) of the Companies Ordinance, Cap. 32.

2.The liquidators also seek these directions:

(1)	the parties named in the writ be known as “A” in the case of the plaintiffs and “B” in the case of the defendants;
(2)	the Registrar be directed to enter the names of parties in the writ as “A” and “B” in the register maintained in the Registry of the High Court until 12 months from the date of the issue of the writ or further order;
(3)	the Registrar be directed to cause the file of the action commenced by the writ and contents thereof including the names of parties appearing on the writ be kept confidential until 12 months from the date of issue of the writ or further order; and
(4)	the supporting affidavit of the liquidators with exhibits, the skeleton submission, this order and any transcript of any hearings regarding this application be sealed by the court and not be made available for inspection by any other party save with leave of the court upon 7 working days notice being given to the liquidators.

3.Under the inherent jurisdiction of the court to regulate its own process, the court may give directions to ensure that a party is not identified (Re The Takeovers and Mergers Panel [1996] 3 HKC 379 at 382C).  I do not think there is any problem with a large part of the directions sought.

4.The only reservation I have is whether I have jurisdiction to restrict the right of access of any member of the public to an originating process as conferred by Order 63 rule 4(1) of the Rules of the High Court.

5.I am satisfied on the information before me that if I have jurisdiction to do so, it would be right and proper to exercise my discretion in this instance and make the directions sought for the reasons set out in detail in Miss Linda Chan’s submission.

6.Miss Chan reminded me that I had made a similar order on 21 May 2004 regarding another protective writ issued by the liquidators.

7.I have looked at the written submission of Miss Chan on that occasion.  She had drawn my attention to several Australian cases on the jurisdiction and power to direct the issue of a writ to be kept confidential, but did not address the court on Order 63 rule 4, as she has done on the present occasion.

8.I do not think there is any binding authority on me whether I have jurisdiction to restrict access to an originating process notwithstanding Order 63 rule 4(1).

9.The observations made by the Court of Appeal in Hunsworth v Attorney General [1996] 3 HKC 519 to the effect that the entitlement to access an originating process under Order 63 rule 4 is “unqualified” at 523D, 527I to 528B, 533G to H, 534E to F are obiter.  The views expressed by J Chan J in Hunsworth v Registrar of the Supreme Court and Another [1996] 2 HKLR 446 at 458D to 459D that the right of access under Order 63 rule 4(1)(a), although unconditional is not absolute and so does not oust the inherent jurisdiction of the court in granting such relief to ensure that “procedural rules [are] not being misused to defeat proper administration of justice and public good” are likewise obiter.

10.Similar views were expressed in Mareva Injunctions and Anton Piller Relief by Steven Gee, 4^th edition, p. 250, in which mention was made of a further basis of jurisdiction for a gagging order in the inherent jurisdiction of the court, “to ensure that its orders are not rendered futile and ineffective to achieve their purpose.”

11.I should mention that I have considered the order made in A Co v B Co [2002] 3 HKLRD 111 at 115D to 116B.  I note that apart from the gagging order against the defendant from revealing or disclosing to any third party any information relating to the proceedings, Ma J made an order that the court file be sealed and not be available for further inspection by a third party save with the leave of the court.  Presumably this would include the originating process, but there was no discussion in the judgment of Order 63 rule 4(1).  So I do not find A Co v B Co of direct assistance to the issue of jurisdiction that I am concerned with, nor do I find section 21L of the High Court Ordinance, Cap. 4, discussed in A Co v B Co,to be of direct relevance, as no injunctive relief is sought in this instance.

12.I am persuaded in the end that the right conferred under Order 63 rule 4(1) is not an absolute right of access, so there is room for inherent jurisdiction to be invoked in an appropriate situation to restrict access to the originating process.  In the present case, if a direction is not made to restrict the right of access to the writ and endorsement of claim, this would render the other directions to safeguard confidentiality largely ineffective.

13.I will grant the reliefs sought in the ex-parte applications in respect of the 4 protective writs placed before me.

Miss Linda Chan, instructed by Messrs Johnson, Stokes & Master, for the Joint & Several Liquidators