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Pinemill Co. Ltd. v Lai Hong San And Others

Judgment Cited authorities 10 Cited in 7 Precedent Map Related
Vincent
Judgment Date14 July 2001
Year2001
Citation[2002] 1 HKLRD 541
Judgement NumberHCCW19/1998
Subject MatterCompanies Winding-up Proceedings
CourtHigh Court (Hong Kong)
HCCW000019B/1998 XCHRX PINEMILL CO. LTD. v. LAI HONG SAN AND OTHERS

HCCW000019B/1998

HCCW 19/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING UP NO. 19 OF 1998

____________

In the matter of section 221 of the Companies Ordinance, Chapter 32

AND
In the matter of Weihong Petroleum Company Limited

BETWEEN
PINEMILL COMPANY LIMITED Applicant
AND
LAI HONG SAN 1st Respondent
YUE CHUN SHAN 2nd Respondent
TONG CHI KEUNG 3rd Respondent
LIU YING SHING, CLAUDIUS 4th Respondent
DS CHEUNG & COMPANY 5th Respondent

____________

Coram: Hon Kwan J in Chambers

Date of Hearing: 13 July 2001

Date of Ruling: 14 July 2001

_______________

R U L I N G

_______________

1. This is an application made on behalf of the 2nd respondent that three questions put to him on 13th July 2001 at 4.15 pm by the Senior Counsel for the applicant should not be allowed, on the ground that the answers given may be self-incriminating.

[The relevant questions and answers are omitted from the Ruling.]

2. It was submitted by Mrs Chan that the effect of the above questions and answers might render the 2nd respondent liable to some criminal charge, such as fraud. There was no elaboration as to precisely what criminal charge might be laid. The submission of the risk of criminal prosecution was made in vague and general terms.

3. If the privilege against self-incrimination is invoked, it must be borne in mind that the privilege is against the "exposure to jeopardy of criminal prosecution and is available only where there is a real danger of prosecution and conviction". See Pyneboard Proprietary Limited v Trade Practices Commission (1983) 45 ALR 609 at 621-2, per Murphy J.

4. I am quite unable to see any or any real danger of prosecution and conviction. On that basis alone, I would dismiss the 2nd respondent's application. As I envisage there may be further applications on the ground of privilege against self-incrimination, it may be appropriate to give my ruling on whether this privilege is available in a private examination under section 221 of the Companies Ordinance, Cap.32.

5. I would like to dispose of article 11(2)(g) of the Hong Kong Bill of Rights first. I was referred by Mr Kinnison for the liquidators to the case of Re Tse Chu-fai Ronald [1993] 2 HKLR 453. Jones J held in that case that article 11 has no relevance to the inspector's investigation under section 145 of the Companies Ordinance.

6. In my judgment, the same reasoning applies to the present situation in respect of an examination under section 221. No part of the examination is concerned with the determination of a criminal charge. The words in article 11(2)(g) are restricted to the rights of a person charged or convicted of a criminal charge.

7. I turn to consider the privilege against self-incrimination at common law. It seems to be common ground that this privilege has not been expressly abrogated by section 221 of Cap 32. However, this privilege could be removed impliedly if that is the clear intention of the legislation. It would be a matter of construction of the statute.

8. I think it is useful to start with the general purpose of section 221. This has been considered by Buckley J in In re Rolls Razor Limited [1968] 3 All ER 698 at 700, in dealing with section 268 of the Companies Act 1948, which is equivalent to our section 221. He has this to say in the judgment:

"The powers conferred by section 268 are powers directed to enabling the court to help a liquidator to discover the truth of the circumstances connected with the affairs of the company, information of trading, dealings, and so forth, in order that the liquidator may be able, as effectively as possible and, I think, with as little expense as possible and with as much expedition as possible, to complete his function as liquidator, to put the affairs of the company in order and to carry out the liquidation in all its various aspects, including, of course, the getting in of any assets of the company available in the liquidation."

9. This passage was approved by the English Court of Appeal in two cases. They are In re Esal (Commodities) Limited [1989] BCLC 59, at 64 and 69, and in In re British and Commonwealth Holdings Plc [1992] Ch 342. Two matters may be noted from this passage. Firstly, the purpose of the section is not just to recover assets, as submitted to me by Mrs Chan. Secondly, there is a public interest involved in ensuring that the liquidator should obtain information required for the discharge of his duties, and that such exercise may be achieved with "as...

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7 cases
  • Re Wing Fai Construction Co Ltd
    • Hong Kong
    • High Court (Hong Kong)
    • 23 Julio 2004
    ...decision that the privilege has been impliedly abrogated by section 221 would appear to be my decision in Weihong Petroleum Co. Ltd [2002] 1 HKLRD 541. This has been followed in Re Asher & Co. (Hong Kong) Ltd., HCCW No. 150 of 1998, 30 June 2003, Deputy Judge 30. In In re Arrows Ltd (No. 4)......
  • Re Asher & Company (Hong Kong) Ltd
    • Hong Kong
    • High Court (Hong Kong)
    • 30 Junio 2003
    ...on the ground that his answer might incriminate himself. After having been referred to the decision in Re Weihong Petroleum Co. Ltd, [2002] 1 HKLRD 541, in which Madam Justice Kwan held that the privilege against self-incrimination had been impliedly abrogated by section 221 of the Companie......
  • Pacific Harbor Advisors Pte Ltd And Another v Winson Federal Ltd And Others
    • Hong Kong
    • High Court (Hong Kong)
    • 12 Mayo 2016
    ...prosecution of the offences under the Theft Ordinance. We invited submissions on R v K (A) [2010] QB 343; Re Weihong Petroleum Co Ltd [2002] 1 HKLRD 541 and Secretary for Justice v FTCW [2014] 1 HKLRD 849; (2014) 17 HKCFAR 739 and counsel assisted us with some submissions on these authoriti......
  • Pacific Harbor Advisors Pte Ltd And Another v Winson Federal Ltd And Others
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 22 Junio 2016
    ...to counsel’s industry, we will address this issue briefly. 32. Mr Joffe submitted, by analogy with Re Weihong Petroleum Co Ltd [2002] 1 HKLRD 541 and other cases where the courts held that a statute had impliedly abrogated PSI, that PSI has been abrogated for the purpose of Order 48 examina......
    • Request a trial to view additional results

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