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Sin Yuk Ping v Hbfp Ltd And Others

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date14 December 2005
Subject MatterCivil Action
Judgement NumberHCA1578/2005
CourtHigh Court (Hong Kong)
HCA001578/2005 SIN YUK PING v. HBFP LTD AND OTHERS

HCA 1578/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1578 OF 2005

____________

BETWEEN

　 SIN YUK PING Plaintiff
　 and 　
　 HBFP LIMITED 1st Defendant
　 formerly known as and operating
under the name or in the style of
 “RSM NELSON WHEELER CORPORATE
 ADVISORY SERVICES LIMITED” 		　
NICHOLAS TIMOTHY CORNFORTH HILL 2nd Defendant
ALAN THORNTON RENNIE 3rd Defendant
ALVAREZ & MARSAL ASIA LIMITED 4th Defendant

____________

Before: Hon Chung J in Chambers

Date of Hearing: 7 December 2005

Date of Handing Down Decision: 14 December 2005

_____________

D E C I S I O N

_____________

Introduction

1. This is the defendants’ application to strike out the statement of claim and dismiss this action.

Background Facts

2. The plaintiff was a director and shareholder (together with a Mr Ho) of Hung Mau Realty and Construction Ltd. (“Hung Mau”). She used to hold 50% of the ordinary shares of Hung Mau.

3. In July 2004, Hung Mau was in effect sold to Chevalier Construction (Hong Kong) Ltd. (“Chevalier”). Since then, the ordinary shares of Hung Mau are held by Chevalier together with its nominee. The plaintiff and Mr Ho merely hold its non-voting deferred shares which, according to the statement of claim herein, are of practically no value.

The Plaintiff’s Pleaded Case

4. The gist of the plaintiff’s complaint as pleaded is essentially as follows. The 2nd to 4th defendants were the 1st defendant’s employees or agents. A Wing Mau Construction Co. Ltd. (“Wing Mou”) was a creditor of Hung Mau. The defendants, as the liquidators of Wing Mou, knowingly made false claims against Hung Mau to the effect that Hung Mau owed debts to Wing Mou. At the end, the plaintiff and Mr Ho was forced to sell Hung Mau to Chevalier as a result.

5. The alleged wrongful acts on which this action is based are:-

(a) the defendants maliciously commenced winding-up proceedings against Hung Mau (HCCW 611/2003) wherein they knowingly made false claims that Hung Mau was unable to repay debts to Wing Mou;

(b) the defendants made malicious false claims in the statutory demand and the petition against Hung Mau.

6. The statement of claim alleges that as a result of the above wrongful acts, the plaintiff and Mr Ho were forced to give up their ordinary shares in Hung Mau to Chevalier in July 2004. The plaintiff says she suffered loss because the non-voting deferred shares which she now holds are of practically no value.

The Causes of Action

7. From the written skeleton submissions of the parties, the causes of action relied upon are the torts of:-

(1) malicious commencement of winding-up proceedings;

(2) malicious falsehood.

8. The thrust of the defendants’ argument in this application is that the plaintiff does not have locus standi to bring this action.

(a) Malicious Commencement of Winding-up Proceedings

9. It is common ground that the ingredients of this tort are, despite the absence of reasonable and probable cause, the tortfeasor initiated the proceedings which terminated in the claimant’s favour.

10. The issue between the parties in relation to this cause of action is whether the liquidation proceedings, which form the basis of the tort, need to be taken against the plaintiff. The plaintiff, relying on the following remarks in Chapman v. Pickersgill (1762) 2 Wils KB 145, submits that there is no such need:-

“Now wherever there is an injury done to a man’s property by a false and malicious prosecution, it is most reasonable he should have an action to repair himself … This action is for a tort: torts are infinitely various, not limited or confined, for there is nothing in nature but may be an instrument of mischief … ” (emphasis supplied).

11. I disagree with the plaintiff for the following reasons:-

(a) the above quote from Chapman was made in the context of an argument that the cause of action relied upon was not recognised by law. As the court observed in Chapman at the beginning of the judgment: “Upon the arguing of this case, the first objection was, that this action will not lie … that no action of this sort was ever brought … ”. The Chapman case is also cited in the textbooks in support of the proposition that the tort is...

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