DARACH E. HAUGHEY AND JOSEPH KIN CHING LO, THE JOINT AND SEVERAL LIQUIDATORS OF WEIHONG PETROLEUM COMPANY LTD (IN LIQUIDATION) v. LAI HONG SAN AND OTHERS

DARACH E. HAUGHEY AND JOSEPH KIN CHING LO, THE JOINT AND SEVERAL LIQUIDATORS OF WEIHONG PETROLEUM COMPANY LTD (IN LIQUIDATION) v. LAI HONG SAN AND OTHERS

The court held that transcripts and affidavits from private examinations under section 221 are not admissible in subsequent section 276 proceedings against other persons who did not have the opportunity to be present and take part; the basic common law rule and the principle of fairness require that private examination materials not be used against third parties and the court refused the liquidators' directions application.

Citation
DARACH E. HAUGHEY AND JOSEPH KIN CHING LO, THE JOINT AND SEVERAL LIQUIDATORS OF WEIHONG PETROLEUM COMPANY LTD (IN LIQUIDATION) v. LAI HONG SAN AND OTHERS
Parties
Applicants Joint and Several Liquidators of Weihong Petroleum Company Limited (in Liquidation): Darach E. Haughey and Joseph Kin Ching Lo; 1st Respondent: Lai Hong San; 2nd Respondent: Yue Chun Shan; 3rd Respondent: Tong Chi Keung; 4th Respondent: Liu Ying Shing, Claudius; 5th Respondent: Weihong Investment (Holdings) Company Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
29 June 2006
Case Number
HCCW19/1998
Procedural Posture
Companies (winding Up) Proceedings Under Section 276 of the Companies Ordinance / Hearing for Directions on Admissibility of Private Examination Transcripts (29 June 2006)
Outcome
Application for directions refused
Legal Topics
Private Examination, Admissibility of Transcripts, Section 276 Companies Ordinance, Companies (winding Up) Rules Rule 59, Fairness and Hearsay
Source Language
EN
Companies Law Insolvency Evidence Law Private Examination Admissibility of Transcripts Section 276 Companies Ordinance Companies (winding Up) Rules Rule 59 Fairness and Hearsay

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Parties

Darach E. Haughey and Joseph Kin Ching Lo

Applicants Joint and Several Liquidators of Weihong Petroleum Company Limited (in Liquidation)

Lai Hong San

1st Respondent

Yue Chun Shan

2nd Respondent

Tong Chi Keung

3rd Respondent

Liu Ying Shing, Claudius

4th Respondent

Weihong Investment (Holdings) Company Limited

5th Respondent

Procedural Posture

Companies (winding Up) Proceedings Under Section 276 of the Companies Ordinance / Hearing for Directions on Admissibility of Private Examination Transcripts (29 June 2006)

Legal Issues

  1. 1 Whether transcripts/affidavits from private (section 221) examinations are admissible in subsequent section 276 proceedings against persons other than the examinee
  2. 2 Comparative effect of rule 59 (public examinations) and practice for private examinations
  3. 3 Whether English statutory developments alter common law position on admissibility

Ratio Decidendi

The court held that transcripts and affidavits from private examinations under section 221 are not admissible in subsequent section 276 proceedings against other persons who did not have the opportunity to be present and take part; the basic common law rule and the principle of fairness require that private examination materials not be used against third parties and the court refused the liquidators' directions application.

Court Disposition

Application for directions refused

Orders

  • Liquidators' application for directions refused
  • Liquidators to pay the costs of the 4th respondent of and occasioned by this application for directions, such costs to be paid out of the estate of the company