Re Hong Kong College of Community Medicine

HCMP 1694/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1694 OF 2009

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Before: Hon Kwan JA (sitting as an additional Judge of the Court of First Instance) in Chambers

Date of Hearing: 7 October 2009

Date of Decision: 7 October 2009

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D E C I S I O N

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1.This is an application by the Hong Kong College of Community Medicine (“the College”) made pursuant to section 111(2) of the Companies Ordinance, Cap. 32, for an order:

(1)  a general meeting of the College be called on such date and at such time as directed by this court; and

(2)  one member of the College present in person or by proxy shall be deemed to constitute a meeting.

2.Section 111(1) provides that every company shall in each year hold an annual general meeting and if default is made in holding a meeting, the court may, on the application of any member of the company under section 111(2), call a general meeting and give such directions as the court thinks expedient.

3.The College was incorporated on 1 October 1991 as a company limited by guarantee and it has been exempted from having to use the word “limited” in its name. In accordance with article 29 of the articles of association, the business of the College has all along been managed by its council.

4.The College held an annual general meeting for 2006 on 7 December 2006 and for 2007 on 18 December 2007 but did not hold an annual general meeting in the calendar year of 2008, as some of the members of the council were out of Hong Kong in December 2008 and were not available until January 2009. The annual general meeting for 2008 was held on 12 January 2009.

5.The council was not aware of the requirement in section 111(1) that the College has to hold an annual general meeting in each calendar year, or of clause 44 of the articles of association which contains the same requirement. It failed to realise that the annual general meeting for 2008 should have been held in the calendar year of 2008.

6.The council only realised the error upon the Companies Registrar’s enquiry and rejection in relation to the College’s filing of the annual return. The error would appear to be an unintentional oversight caused by ignorance of the requirements of the law. I do not think there was any intention to contravene the statutory provision and the articles of association. The Honorary Secretary of the council has deposed that the council would comply with the statutory requirement in future.

7.I exercise my discretion to grant relief under section 111(2) to allow the College to hold its 2008 annual general meeting to comply with the law. In holding this annual general meeting, the College must comply with the requirement in section 111(3) by resolving that the meeting shall be treated as the annual general meeting for the year 2008, and a copy of this resolution is to be forwarded to the Registrar of Companies within 15 days after the passing thereof, as required by section 111(4). I will further direct that one member of the College present in person or by proxy shall be deemed to constitute a meeting.

8.There would be an order in terms of the draft submitted to the court amended in the way I have indicated.

Mr Alan Yung, instructed by Messrs Hastings & Co, for the Applicant