Re China All Access (Holdings) Ltd

Judgment Cited authorities (1) Cited in (2) Precedent Map Related
Judgment Date21 June 2021
Neutral Citation[2021] HKCFI 1842
Judgement NumberHCCW431/2020
Year2021
CourtCourt of First Instance (Hong Kong)

HCCW 431/2020

[2021] HKCFI 1842

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP PROCEEDINGS NO 431 OF 2020

________________________

IN THE MATTER of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Chapter 32)
and
IN THE MATTER of China All Access (Holdings) Limited （中國全通（控股）有限公司）

________________________

Before: Hon Harris J in Court

Date of Hearing: 21 June 2021

Date of Decision: 21 June 2021

________________

D E C I S I O N

________________

1. The present amended petition was last before me on 7 June 2021. I adjourned the petition for two weeks in order to give the Company the opportunity to pay the debt which it is not disputed is owed to the Petitioner. I was told that payment would be possible because a subsidiary of the Company would be in possession of sufficient funds, HK$25 million, to effect the payment.

2. As it transpired the cheque that was presented was dishonoured. The Petitioner has returned to court this morning and seeks an immediate winding up order. Two supporting creditors take the same position. The Company has asked for a further week in order to make another attempt to satisfy the Petitioner’s debt.

3. I take the view that having been given the opportunity once, and the Petitioner and the only two other creditors who have given notice of an intention to appear on the petition taking the view that the better course is that the Company is wound up, I should be guided by the views of the creditors unless there is a good reason to do otherwise.

4. The Company also disputes the Petitioner’s submission that an immediate winding up order should be made on the grounds that the second [1] of the three core requirements which have to be satisfied before the court exercises its discretionary jurisdiction to wind up a company incorporated in a foreign jurisdiction, in this case the Cayman Islands, cannot be satisfied. The reason this is contended is that the Company’s assets are located in the Mainland and Malaysia. As I understand the position the majority of the assets are located in Shenzhen. The operating subsidiaries are separated from the holding company by intermediate subsidiaries incorporated in the British Virgin Islands (“BVI”).

5. Mr Tang who appeared for the Company referred me to my decision of November 2020 of Re China Huiyuan Juice Group Limited [2], in which I discuss in detail the difficulties which liquidators appointed in Hong Kong over a foreign incorporated holding company may have in obtaining control of operating subsidiaries in the Mainland, if the group’s structure includes intermediate subsidiaries incorporated in the BVI. However, things have moved on substantially since November 2020.

6. On 14 May of this year, the Secretary for Justice and the Supreme People’s Court signed a cooperation mechanism for mutual recognition of insolvency processes. This...

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