MING LAI SIU FUN v. TSANG HUNG KONG AND OTHERS

MING LAI SIU FUN v. TSANG HUNG KONG AND OTHERS

A majority refused leave to appeal because the choice‑of‑law and substantive questions about availability of multiple derivative actions for a PRC company were novel and complex, the available expert evidence was incomplete and improperly adduced for summary disposal, and case management principles required the issues to go to full investigation and trial rather than be decided on an interlocutory appeal.

Citation
MING LAI SIU FUN v. TSANG HUNG KONG AND OTHERS
Parties
Plaintiff (suing on Behalf of Herself and Other BEI Shareholders and on Behalf of Yk): MING LAI SIU FUN; 1st Defendant (chairman of Bei; Director and Legal Representative of Yk): TSANG HUNG KONG; 2nd Defendant (bei; 90% Shareholder of Yk): Billion Express Industrial Ltd; 3rd Defendant (prc Incorporated Company): Yue Kong (YK)
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
17 September 2010
Case Number
HCMP1141/2010
Procedural Posture
Application for Leave to Appeal (interlocutory) / Court of Appeal Reconsideration Under Order 59 Rule 2 A(7) Following Refusal of Leave Below
Outcome
Application for leave to appeal refused (majority)
Legal Topics
Derivative Action, Double/multiple Derivative Action, Choice of Law (governing Law), Strike Out, Leave to Appeal, Case Management, Injunction, Consolidation
Source Language
EN
Company Law Conflict of Laws Civil Procedure Equity Appellate Procedure Derivative Action Double/multiple Derivative Action Choice of Law (governing Law) +5 more

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Parties

MING LAI SIU FUN

Plaintiff (suing on Behalf of Herself and Other BEI Shareholders and on Behalf of Yk)

TSANG HUNG KONG

1st Defendant (chairman of Bei; Director and Legal Representative of Yk)

Billion Express Industrial Ltd

2nd Defendant (bei; 90% Shareholder of Yk)

Yue Kong (YK)

3rd Defendant (prc Incorporated Company)

Procedural Posture

Application for Leave to Appeal (interlocutory) / Court of Appeal Reconsideration Under Order 59 Rule 2 A(7) Following Refusal of Leave Below

Legal Issues

  1. 1 Whether a shareholder of a parent company can bring a double/multiple derivative action on behalf of a foreign subsidiary incorporated in the PRC
  2. 2 Whether the right to bring a derivative action is substantive (governed by law of place of incorporation) or procedural (governed by lex fori)
  3. 3 Whether PRC law permits multiple/double derivative actions

Ratio Decidendi

A majority refused leave to appeal because the choice‑of‑law and substantive questions about availability of multiple derivative actions for a PRC company were novel and complex, the available expert evidence was incomplete and improperly adduced for summary disposal, and case management principles required the issues to go to full investigation and trial rather than be decided on an interlocutory appeal.

Court Disposition

Application for leave to appeal refused (majority)

Orders

  • Leave to appeal refused