Hong Kong Case Law: Decisions & Judgments

Topic

Central management and control

Legal area

Court

12 Oct 2012

HUI YIN SANG AND OTHERS v. TSOI PING KWAN AND OTHERS

Citation

HUI YIN SANG AND OTHERS v. TSOI PING KWAN AND OTHERS
Court

Court of Appeal
Case number

CACV208/2011

The application for leave to appeal was dismissed because the proposed questions were not reasonably arguable nor of sufficient general or public importance to warrant referral to the Court of Final Appeal; the central management and control test remains the applicable test for ordinary residence, the asserted primacy of an offshore holding vehicle's purpose was not justified, and the perceived anomaly has been addressed by Companies Ordinance s.905, making leave inappropriate in the interlocutory context.
17 Jul 2012

WINGAMES INVESTMENTS LTD AND OTHERS v. MASCOT LAND LTD AND OTHERS

Citation

WINGAMES INVESTMENTS LTD AND OTHERS v. MASCOT LAND LTD AND OTHERS
Court

Court of First Instance
Case number

HCA907/2011

Court found on the evidence that the 2nd plaintiff's central management and control lies outside Hong Kong and thus it is ordinarily resident abroad; exercised discretion to order further security but declined the full sum sought, finding insufficient evidence that a further order would stifle the claim; fixed further security at HK$2,400,000 to be paid into court within 28 days and provided for a stay of proceedings if unpaid; made a costs order nisi for two-thirds of costs of the application in favour of defendants.
19 Apr 2012

HUI YIN SANG AND ANOTHER v. TSOI PING KWAN AND ANOTHER

Citation

HUI YIN SANG AND ANOTHER v. TSOI PING KWAN AND ANOTHER
Court

Court of Appeal
Case number

CACV208/2011

Apply the multi‑factor central management and control test; on the evidence the Hong Kong and offshore elements were balanced and appellants bore the burden to show the companies were ordinarily resident outside Hong Kong which they did not discharge; therefore the refusal of security for costs under O.23 r.1(1)(a) was upheld and the appeal dismissed.
16 Feb 2012

A R EVANS CAPITAL PARTNERS LTD v. NOVEL ALTERNATIVE INVESTMENT LTD AND OTHERS

Citation

A R EVANS CAPITAL PARTNERS LTD v. NOVEL ALTERNATIVE INVESTMENT LTD AND OTHERS
Court

Court of First Instance
Case number

HCMP1991/2011

On the evidence the petitioner was not ordinarily resident in Hong Kong: incorporation, registered office, registers and historic conduct pointed to the Bahamas, the Part XI/business registration was recent and inferentially contrived, and continuity of residence in Hong Kong had not been shown; accordingly the court had power under Order 23 r.1(1)(a) and in exercise of its discretion ordered security for costs of HK$1,500,000 to be paid into court within 14 days and granted costs to the 1st–4th respondents on a nisi basis.
11 Nov 2009

HERO RICH INTERNATIONAL LTD v. BENEFUN INTERNATIONAL HOLDINGS LTD AND OTHERS

Citation

HERO RICH INTERNATIONAL LTD v. BENEFUN INTERNATIONAL HOLDINGS LTD AND OTHERS
Court

Court of First Instance
Case number

HCA1433/2009

The court found on the facts that the plaintiff is ordinarily resident out of the jurisdiction because it is a BVI company with registered office in the BVI and its sole shareholder and director is resident outside Hong Kong, with no evidence that central management, books or substantial habitual corporate activities are in Hong Kong; accordingly Order 23 r1(a) applies and, in the exercise of discretion, security for costs in the sum of HK$300,000 payable up to the conclusion of discovery was ordered.
25 Feb 2009

AHN SANG GYUN v. COMMISSIONER OF INLAND REVENUE

Citation

AHN SANG GYUN v. COMMISSIONER OF INLAND REVENUE
Court

Court of First Instance
Case number

HCIA4/2008

The court refused to remit the Case Stated for amendment because the proposed additional questions improperly sought to re‑argue factual issues and selectively rely on evidence rather than raise pure questions of law within the limited categories permitted on a case stated; the Board's existing questions were adequate to address the core legal issues, and reasonable factual findings supported by evidence cannot be re-opened by amendment under s69(4).
26 Sept 2008

JADE PLAN ASSETS LTD AND OTHERS v. LAU KIM HUNG JACK AND OTHERS

Citation

JADE PLAN ASSETS LTD AND OTHERS v. LAU KIM HUNG JACK AND OTHERS
Court

Court of First Instance
Case number

HCA910/2007

The Court found the 2nd Plaintiff failed to rebut the prima facie case that it is ordinarily resident outside Hong Kong because central management and control was not demonstrated to be in Hong Kong (notably no affidavit from Fung and lack of documentary evidence); the 2nd Plaintiff's claim was not shown to have a high probability of success at this interlocutory stage; accordingly the Court exercised its discretion under O.23 r 1(1) to order security for costs and fixed the quantum at HK$400,000, set aside the Master's order and stayed further proceedings until security is paid.
11 Jan 2008

AA CHEN (ASIA PACIFIC) CONSULTANTS LTD. v. KHOO EE LIAM

Citation

AA CHEN (ASIA PACIFIC) CONSULTANTS LTD. v. KHOO EE LIAM
Court

Court of First Instance
Case number

HCA4354/2003

Defendant failed to prove on the evidence that the plaintiff is ordinarily resident outside Hong Kong or that, on the balance of probabilities, the plaintiff will be unable to pay any costs order under s.357; the plaintiff's sole significant asset (the convertible bond) is likely to yield repayment by end 2008 and, coupled with plaintiff's undertakings not to dispose of up to HK$4,900,000 and to notify if unpaid, negates the need for security; appeal dismissed.
21 Feb 2005

JADE HARBOUR LTD v. ELTONES PROFITS LTD AND ANOTHER

Citation

JADE HARBOUR LTD v. ELTONES PROFITS LTD AND ANOTHER
Court

Court of First Instance
Case number

HCA19549/1998

The court held that the plaintiff was ordinarily resident in Hong Kong because its sole director and controlling shareholder managed and controlled it from Hong Kong and its books were kept in Hong Kong; accordingly the application for security for costs under Order 23, rule 1(1)(a) failed and the appeal was dismissed; alternatively, even if the plaintiff were ordinarily resident outside Hong Kong, the court would have refused security for costs in the exercise of discretion given the plaintiff's prospects and the 2nd defendant's role.
30 Jul 2002

SKYRIVER (B.V.I.) LTD. & ANOTHER v. SHOUGANG HOLDING (HK) LTD.

Citation

SKYRIVER (B.V.I.) LTD. & ANOTHER v. SHOUGANG HOLDING (HK) LTD.
Court

Court of First Instance
Case number

HCA17196/1999

The 1st plaintiff was held to be ordinarily resident outside Hong Kong based on its BVI registration, registered office, lack of assets or business in Hong Kong, absence of evidence of central management in Hong Kong and appointment of a Hong Kong agent; accordingly the court had jurisdiction to order security for costs and, exercising its discretion, reduced the quantum of security to HK$500,000 payable by the 1st plaintiff (up to discovery and exchange of witness statements).