RE WING FAI CONSTRUCTION CO LTD

RE WING FAI CONSTRUCTION CO LTD

On proper construction r.62(1)-(2) does not require court leave for a liquidator to use or disclose transcripts of private s.221 examinations when doing so to discharge legitimate duties of the liquidation; the Companies Ordinance does not bar a liquidator in a compulsory winding up from reporting suspected criminality to police; in any event ambiguity requires benefit of doubt to the respondent; applicants failed to prove beyond reasonable doubt the requisite actus reus and mens rea for criminal contempt; committal was unnecessary given alternative statutory remedies, so application dismissed.

Citation
RE WING FAI CONSTRUCTION CO LTD
Parties
1st Applicant (former Director): Kelly Cheng Kit Yin; 2nd Applicant (former Director): Robert Yip Kwong; Respondent (joint and Several Liquidator): David John Kennedy; Company (subject of Winding Up): Wing Fai Construction Company Limited; Interested Party (official Receiver): Official Receiver
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
23 July 2004
Case Number
HCCW735/2002
Procedural Posture
Companies (winding Up) — Committal for Criminal Contempt / Submission of No Case; Judgment on Submission (application Dismissed)
Outcome
Application to commit respondent for criminal contempt dismissed
Legal Topics
Private Examination Under S.221, Winding Up Rules R.62(1) (2), Disclosure of Transcripts, Reporting to Police/ccb, Liquidator Duties and Powers, Construction of S.277 and S.191, Actus Reus and Mens Rea for Contempt, Locus Standi for Committal
Source Language
EN
Company Law Insolvency Criminal Contempt Civil Procedure Public Law Private Examination Under S.221 Winding Up Rules R.62(1) (2) Disclosure of Transcripts +5 more

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Parties

Kelly Cheng Kit Yin

1st Applicant (former Director)

Robert Yip Kwong

2nd Applicant (former Director)

David John Kennedy

Respondent (joint and Several Liquidator)

Wing Fai Construction Company Limited

Company (subject of Winding Up)

Official Receiver

Interested Party (official Receiver)

Procedural Posture

Companies (winding Up) — Committal for Criminal Contempt / Submission of No Case; Judgment on Submission (application Dismissed)

Legal Issues

  1. 1 Whether r.62(2) of the Winding-up Rules requires leave for a liquidator to use or disclose transcripts of private examinations for the discharge of his duties
  2. 2 Whether a liquidator in a compulsory winding up is prohibited from reporting suspected criminal conduct directly to police without first obtaining court directions under ss.191,222,277 of the Companies Ordinance (Cap.32)
  3. 3 Whether the acts alleged constitute the actus reus and mens rea of criminal contempt

Ratio Decidendi

On proper construction r.62(1)-(2) does not require court leave for a liquidator to use or disclose transcripts of private s.221 examinations when doing so to discharge legitimate duties of the liquidation; the Companies Ordinance does not bar a liquidator in a compulsory winding up from reporting suspected criminality to police; in any event ambiguity requires benefit of doubt to the respondent; applicants failed to prove beyond reasonable doubt the requisite actus reus and mens rea for criminal contempt; committal was unnecessary given alternative statutory remedies, so application dismissed.

Court Disposition

Application to commit respondent for criminal contempt dismissed

Orders

  • Application dismissed
  • Parties to be heard on costs and consequential directions