TAM POK MAN AND ANOTHER v. HONGKONG-ASIA EXHIBITION(HOLDINGS) LTD
Grant orders to rectify failures under section 122 where appropriate and where prosecution is not barred; specifically grant the order sought for HKA Communications for the period from incorporation to 31 December 2012, and grant orders for Hongkong‑Asia Exhibition for periods from 2010 onwards but refuse to grant...
Source-derived case information.
- Citation
- TAM POK MAN AND ANOTHER v. HONGKONG-ASIA EXHIBITION(HOLDINGS) LTD
- Parties
- Applicant/plaintiff: Tam Pok Man; Defendant/respondent: Hongkong-Asia Exhibition (Holdings) Limited; Defendant/respondent: HKA Communications Limited
- Court
- Court of First Instance
- Jurisdiction
- Hong Kong
- Judgment Date
- 11 March 2014
- Case Number
- HCMP244/2014
- Procedural Posture
- Originating Summonses Under Section 122 Companies Ordinance (cap 32) / Ruling by Judge of the Court of First Instance
- Outcome
- Applications granted in part: HKA Communications order granted in full for its first accounting period to 31 December 2012; Hongkong‑Asia Exhibition orders granted for periods from 2010 onwards and not granted for periods prior to 2010 where prosecution is barred by section 351.
- Legal Topics
- Extension of Time to Lay Accounts Under Section 122, Compliance With Companies Ordinance, Listing / GEM Listing Implications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Tam Pok Man
Applicant/plaintiff
Hongkong-Asia Exhibition (Holdings) Limited
Defendant/respondent
HKA Communications Limited
Defendant/respondent
Procedural Posture
Originating Summonses Under Section 122 Companies Ordinance (cap 32) / Ruling by Judge of the Court of First Instance
Legal Issues
- 1 Whether the court should grant orders under section 122 to rectify failures to lay audited accounts and balance sheets at AGMs
- 2 Whether the court should grant orders for historical periods in respect of which criminal prosecution is barred by section 351
- 3 Whether it is appropriate for the Companies Court to make orders for periods solely to facilitate a listing on the Stock Exchange
Ratio Decidendi
Grant orders to rectify failures under section 122 where appropriate and where prosecution is not barred; specifically grant the order sought for HKA Communications for the period from incorporation to 31 December 2012, and grant orders for Hongkong‑Asia Exhibition for periods from 2010 onwards but refuse to grant orders for earlier periods where prosecution is barred by section 351 because doing so would be a quasi‑administrative act outside the Companies Court's proper function.
Court Disposition
Applications granted in part: HKA Communications order granted in full for its first accounting period to 31 December 2012; Hongkong‑Asia Exhibition orders granted for periods from 2010 onwards and not granted for periods prior to 2010 where prosecution is barred by section 351.
Orders
- Order rectifying failure to comply with section 122 in respect of HKA Communications Limited for the period from incorporation to 31 December 2012 as sought
- Orders rectifying failures to comply with section 122 in respect of Hongkong‑Asia Exhibition (Holdings) Limited for accounting periods from 2010 onwards
Full Case Text
Judgment text and source record
1 paragraphs
bjbjqPqP HCMP 244/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLENAOUS PROCEEDINGS NO 244 OF 2014 ______________________ IN THE MATTER OF THE HONGKONG-ASIA EXHIBITION (HOLDINGS) LIMITED and IN THE MATTER OF section 122 of the Companies Ordinance (Cap 32) and Order 102 Rule 2 of the Rules of High Court (Cap 4A) ______________________ BETWEEN TAM POK MAN MISCELLENAOUS PROCEEDINGS NO 245 OF 2014 ______________________ IN THE MATTER OF THE HKA COMMUNICATIONS LIMITED and IN THE MATTER OF section 122 of the Companies Ordinance (Cap 32) and Order 102 Rule 2 of the Rules of High Court (Cap 4A) ______________________ BETWEEN TAM POK MAN riginating 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. 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. I will grant the order sought. 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. 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. 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. 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. 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. (Jonathan Harris) Judge of the Court of First Instance High Court 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: Hong ojoj ojoj]o ojoj hP;} gdb#a gdb#a gd;|~ hb#a hb#a hb#a h/:o h\$c gd#zM gdb#a ~tjM hvs/ ~qdXLXLXL@L@L h9rb h#zM eaeaeaea hS?T hS?T h!%q &`#$ gduG gdT| Kong-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 PAGE - PAGE - CRT21/11.3.2014/AG HCMP 244 & 245/2014/Ruling A B C D E F G H I J K L M N O P Q R S T U V A B C D E F G H I J K L M N O P Q R S T U V A B C D E F G H I J K L M N O P Q R S T U V A B C D E F G H I J K L M N O P Q R S T U V h9rb h!%q hME4 urn:schemas-microsoft-com:office:smarttags place urn:schemas-microsoft-com:office:smarttags address urn:schemas-microsoft-com:office:smarttags Street bZ < =RM/L$t\ [g\k [g\k =RM/ User Judgment Format.dot User Microsoft Office Word judiciary Title Microsoft Office Word Document MSWordDoc Word.Document.8