Lin Ming v. Chen Shu Quan and Another

HCMP 1631/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1631 OF 2011

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BETWEEN

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J U D G M E N T

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1.This is the plaintiff’s application by summons dated 13 April 2012 for an order that the statement of claim of this action be registered with the Companies Registry.

2.The application is opposed by the 2^nd defendant.  Although the Companies Registrar has not been joined as a party, apparently upon the plaintiff’s inquiry, the Companies Registrar has replied by a letter dated 25 May 2012 stating that it would maintain a neutral stance in this application.

3.The dispute in this action (and some other related actions) concerns the plaintiff’s claim that he has remained as the sole director of the 2^nd defendant since January 2007 and has never resigned.  However, the plaintiff says the 1^st defendant has wrongfully filed with the Companies Registry a Form D2A notifying the resignation of the plaintiff as a director and the appointment of the 1^st defendant in his place as a director. 

4.The plaintiff took out the present summons asking the court to order that the statement of claim in this action be registered with the Companies Registry so as to avoid what he says as the misleading effect of the said Form D2A.  The statement of claim sets out the plaintiff’s claim on the disputed directorship.

5.As submitted in his skeleton, the plaintiff seeks to rely on (a) s 158 of the Companies Ordinance (Cap 32) (“the CO”), and (b) the inherent jurisdiction of the court to support the application.

6.I am not satisfied that the court has jurisdiction to grant the application as submitted.

7.First, s 158 of the CO simply does not provide the court with such a jurisdiction or power to grant the relief as sought under the summons:

(1)   That provision deals with the public’s right to inspect the register kept by the company (not the Companies Registry).  Thus, it has nothing to do with the registration of documents with the Companies Registry, and is therefore entirely irrelevant to this application.

(2)   In any event, it only relates to the public’s right to inspect the said register of directors and secretaries kept by the company.  It is the right of inspection which is the subject matter of this provision, and it could not have conferred (as submitted by the plaintiff) any “incidental power” to the court to order the registration of documents with the Companies Registry.

8.The reliance on s 158 of the CO is in my view entirely without merits.

9.Secondly, I also agree with Mr Lee for the 2^nd defendant that there cannot be any free-standing inherent jurisdiction of the court to order the registration of documents with the Companies Registry: (a) the overriding feature of the inherent jurisdiction of the court is that it is part of procedural law and cannot be invoked to confer substantive rights, and (b) the existence of a free-standing inherent jurisdiction to order the Companies Registrar to register documents is on the face of it inconsistent with s 348 of the CO, where there is an express statutory framework provided to an aggrieved person with an appeal to this court against the Companies Registrar’s refusal to register any documents submitted by that person. See: the observations of Kwan J (as she then was) in Tongda Group Holdings Ltd v Registrar of Companies (unrep, HCMP 1356/2004, 30 September 2004), at paragraphs 28-36; and also cf: Exert Trust Ltd v Screenways Ltd [1991] BCC 477 at 482F-H per Nourse LJ. 

10.It is also pertinent to note that the plaintiff’s submissions on inherent jurisdiction are not supported by any authorities.  Mr Lai for the plaintiff refer this court to an order made by Poon J on 27 May 2011 under another related action HCA 866/2011, whereby the learned Judge ordered, inter alia, that the writ of summons with the statement of claim in that case be registered with the Companies Registry against the defendant in that case.  There are no written reasons or judgment for that order.  It is also noted that the defendant (which is the same 2^nd defendant herein) was not present at the application when the order was made.  There is nothing before this court to show on what basis the plaintiff (then represented by counsel) asked the court to make that order.  In such circumstances, I do not find this an authority in support of the plaintiff’s application.

11.At the hearing today, Mr Lai for the plaintiff further relies on s 348 of the CO to support this application. 

12.This is again misconceived.   

13.As mentioned above, s 348 deals with (a) the power of the Companies Registrar to refuse to register or accept registration any documents delivered to her on various bases set out therein, and (b) an appeal made by a person aggrieved by the Companies Registrar’s said decision to the High Court within 42 days of that decision.

14.Thus, in order to engage and invoke s 348 by way of an appeal, there must first be a decision made by the Companies Registrar under s 348 to refuse to register documents delivered to her under the CO. 

15.In the present case, there is nothing before me to show firstly that the plaintiff had requested the Companies Registrar to register the statement of claim herein, and secondly (and more importantly) that the Companies Registrar had refused to do so under s 348.  There is therefore simply no extant decision of the Companies Registrar to engage s 348 of the CO.  The plaintiff’s present application is simply not a s 348 appeal.  This is underlined by the fact that this application is not made pursuant to the procedures set out under O 102 of the Rules of High Court and the Companies Registrar is not even joined as a respondent. 

16.For all the above reasons, I refuse this application.

17.I am also of the view that this application is entirely without merits.  I further make an order that costs of this application be to the 2^nd defendant to be grossly taxed on an indemnity basis.

Mr Lai Anthony & Mr Daniel Yung of M.C.A Lai & Co, for the plaintiff

The attendance of 1^st defendant was excused

Mr Lee Siu Him, instructed by JCC Cheung & Co, for the 2^nd defendant