Tam Pok Man and Another v. Hongkong-asia Exhibition(Holdings) Ltd

HCMP 244/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLENAOUS PROCEEDINGS NO 244 OF 2014

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BETWEEN

HCMP 245/2014

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLENAOUS PROCEEDINGS NO 245 OF 2014

______________________

______________________

BETWEEN

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R U L I N G

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1.I have before me two originating summonses issued pursuant to section 122 of the Companies Ordinance seeking extensions of the period specified in that section for the company to lay its profit and loss account and balance sheet before the company at its Annual General Meeting. 

2.In the case of HKA Communications Limited, all that is required is an order that rectifies the failure to comply with section 122 for the period from the date of the company’s incorporation to the end of its first financial accounting period, which was 31 December 2012. 

3.I will grant the order sought.

4.The other application which concerns Hongkong-Asia Exhibition (Holdings) Limited is a little different.  In that case the company has, since the date of its incorporation, 13 November 2002, been preparing audited financial statements each year and has held Annual General Meetings.  The breach of section 122 arises from the fact that the company’s directors did not appreciate that it was necessary for them to put the audited financial statements before the shareholders (who are the same as the directors) at the Annual General Meeting. 

5.The relevant periods are from the first financial accounting period, 13 November 2002 to 31 December 2003, all the way through to the most recent accounting period, which is the calendar year 2012.

6.As a consequence of the provisions of section 351 of the present Companies Ordinance, Cap 32, the company cannot be prosecuted in respect of the breaches for the periods ending 31 December 2009.

7.The reason the applications have been made is because the two companies are part of a group which, through a new holding company, it is intended to list on the GEM. 

8.Although I consider this to be a proper case to grant the orders sought for the periods from 2010 onwards, it does not seem to me to be appropriate for the court to be granting orders for periods in respect of which the company cannot be prosecuted for a breach of the ordinance by virtue of the provisions of section 351.  To do so would be simply to exercise a quasi administrative function to make life easier for the process of the listing.  This is not the function of the Companies Court and, as I have explained, in other cases, it would appear that the Stock Exchange does not consider that a breach of section 122 is an impediment to a listing.

Mr Chan Chung, instructed by Tsun & Partners, for 1st and 2nd Plaintiffs (in HCMP 244/2014), and the Plaintiff (in HCMP 245/2014)

The defendant: HongKong-Asia Exhibition (Holdings) Limited (in HCMP 244/2014) was not represented and did not appear

The defendant: HKA Communications Limited (in HCMP245/2014) was not represented and did not appear