Kam Leung Sui Kwan, Personal Representative of the Estate of Kam Kwan Sing,The Deceased v. Kam Kwan Lai and Others

FAMV No. 49 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 49 OF 2014 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 266 OF 2012)

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BETWEEN

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DETERMINATION
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Mr Justice Fok PJ :

1.The first six questions identified in the applicant’s notice of motion are relevant sub-issues that arise under, and can be distilled into, the following two questions, concerning the jurisdiction of the court to wind-up a company or grant relief for unfair prejudice in relation to a foreign company not registered under Part XI of the Companies Ordinance (Cap.32)[1], namely:

“1. Whether and to what extent, for the purposes of s.327 of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap.32) (‘CWUO’) and s.168A of the Companies Ordinance (replaced by ss.724-726 of the Companies Ordinance (Cap.622) since March 2014), the court should exercise its jurisdiction over an unregistered company which has been used by its shareholders and directors located in Hong Kong as a vehicle for cooperation and whose activities were directed and carried out by such individuals in Hong Kong.

2. To what extent, for the purposes of invoking its jurisdiction under those sections, the court should consider the affairs and activities of the subsidiaries and sub-subsidiaries (whether incorporated in Hong Kong or elsewhere).”

2.Mr Bleach SC has highlighted what are undoubtedly significant obstacles which the applicant will have to overcome but we are satisfied that these are questions of great general or public importance and, accordingly, we grant leave to the applicant to appeal in respect of them.

3.We are further satisfied that it is appropriate to grant leave exceptionally on the “or otherwise” ground in section 22(1)(b) of the Ordinance[2] in respect of whether the Court of Appeal was correct to overturn the judge’s finding that the affairs of the 5^th Respondent company had been conducted in an unfairly prejudicial manner, because that issue is a matter which may have to be determined to dispose effectively of the appeal.

4.On this basis it is unnecessary to grant leave on questions 7, 8 and 9 in the applicant’s notice of motion.

5.The appeal will be heard on 7 and 8 October 2015.

Ms Linda Chan SC & Mr Justin Ho, instructed by Tony Kan & Co., for the Petitioner (Applicant)

Mr John Bleach SC, Mr Victor Joffe and Mr. James Man, instructed by Minter Ellison, for the 1^st & 2^nd Respondents  (Respondents)