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HCCW 603/2001
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IN THE HIGH COURT OF THE

D
HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF FIRST INSTANCE
E E
COMPANIES (WINDING-UP) NO. 603 OF 2001

F ____________ F

G IN THE MATTER of LIKE GRAND G

HOLDINGS LTD (“the 1st
H Respondent”) H

I and I

J
IN THE MATTER of CHINA J
INTERNATIONAL BUSINESS
DEVELOPMENT (HONG KONG)
K K
LIMITED (“the 2nd Respondent”)

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and

M IN THE MATTER of Section 168A of M

the Companies Ordinance (Cap. 32)

N N
and
O O
IN THE MATTER of Section 177(1)
P (f) of the Companies Ordinance (Cap. P
32)
Q Q
____________
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Before: Hon Kwan J in Chambers
S Date of Hearing: 11 July 2003 S

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Date of Decision: 11 July 2003 T

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______________
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DECISION
C ______________ C

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E 1. I have before me a summons issued on 26 May 2003 by the 1st and 2nd E

respondents, seeking an order that security for costs is to be provided by

F F
the petitioners in the sum of HK$620,000.00 or such sum as the court
G thinks fit, under the provisions of O. 23 r. 1(c) and (d) of the Rules of the G

High Court.
H H

I 2. The litigation in which the parties are involved is a petition to wind up I

China International Business Development (Hong Kong) Limited, the 2nd

J J
respondent herein, on the just and equitable ground, alternatively for relief
K under section 168A of the Companies Ordinance, Cap. 32. K

L L
3. It would be convenient if I first set out the relevant provisions in O. 23
M r. 1: M

N
“(1) Where on the application of a defendant to an action or N
other proceeding in the Court of First Instance, it appears to the
Court–
O O
…
P (c) subject to paragraph (2) that the plaintiff’s address is P
not stated in the writ or other originating process or is
Q incorrectly stated therein, or Q

(d) that the plaintiff has changed his address during the
R course of the proceedings with a view to evading the R
consequences of the litigation,
S then if, having regard to all the circumstances of the case, S
the Court thinks it just to do so, it may order the plaintiff to
T
give such security for the defendant’s costs of the action or T
other proceeding as it thinks just.

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(2) The Court shall not require a plaintiff to give security by

B reason only of paragraph (1)(c) if he satisfies the Court that B
the failure to state his address or the mis-statement thereof
C was made innocently and without intention to deceive.” C

D D
4. The respondents’ case in this application is that the petitioners have

E never provided “their genuine address” or “have changed their addresses E

during the course of the proceedings of this action with a view to evading
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the consequences of this action”.
G G

5. It is important to bear in mind what are the procedural requirements

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regarding the provision of the address of a plaintiff or a petitioner in the
I originating process, as these requirements do not seem to have been I

appreciated by the solicitors on both sides.

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K 6. Under O. 9 r. 2(3) of the Rules of the High Court, it is provided that O. K

6 r. 5 shall, with the necessary modifications, apply in relation to a petition

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as it applies in relation to a writ. O. 6 r. 5(1) reads as follows:
M “Before a writ is issued, it must be indorsed– M

N
(a) where the plaintiff sues by a solicitor, with the plaintiff’s N
address and the solicitor’s name or firm and a business
address of his within the jurisdiction and also (if the
O solicitor is the agent of another) the name or firm and O
business address of his principal;
P (b) where the plaintiff sues in person, with the address of his P
place of residence and if his place of residence is not within
Q the jurisdiction or if he has no place of residence, the Q
address of a place within the jurisdiction at or to which
documents for him may be delivered or sent.”
R R

S 7. O. 6 r. 5(2) deals with the address for service of a plaintiff. I do not S

propose to set out this provision except to draw the attention of the parties
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to this. In the commentary in Hong Kong Civil Procedure 2002 Vol. 1
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paragraph 6/5/5 under the heading of “Address of the plaintiff”, the

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relevant extract reads as follows:
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“Where a plaintiff sues by a solicitor, his address need not be his
‘place of residence’, but where he sues in person, it must be his
D place of residence, i.e. the place which he occupies as his home, D
where he lives.”
E E

8. I pause here to remark that this would be appear to be a reference to the

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address for service which is dealt with in O. 6 r. 5(2). The relevant extract
G in this commentary continues as follows: G

H
“If a plaintiff in person has no place of residence within the H
jurisdiction, or he has no place of residence, this fact must
be stated in the indorsement of the writ, and the address of
I a place within the jurisdiction must be indorsed on the writ. I
In any case, the address must be a genuine address
(cf O. 12, r. 3(4) in the case of an acknowledgment of
J J
service and see Pittsburg, etc., Co. v Marx [1897] WN 36).
If the address is not truly or correctly stated, the plaintiff
K may be ordered to amend by stating the correct address, or K
the proceedings may be stayed, or he may be ordered to
give security for costs. (see O. 23 r. 1(1)(c)).”
L L

M 9. It is important that the requirements as to the provision of the address of M

a petitioner must be observed. The purpose of requiring a plaintiff or a

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petitioner to state his address as well as his solicitor’s address, which is the
O address for service, is to inform the other party whether the plaintiff or O

petitioner is ordinarily resident within or outside the jurisdiction; if it is the

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latter, the other party may wish to apply for security for costs. Thus, the
Q address of the petitioner that should be stated in the petition must be his Q

place of residence.
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S 10.In this instance, the addresses of the petitioners provided in the petition S

are care of a commercial address being Room 1705, Carnival Commercial

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Building, 18 Java Road, North Point. This is simply not in compliance
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with the requirement in the Rules of the High Court. As the addresses of
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the petitioners are incorrectly stated, the requirement in O. 23 r. 1(c) would
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appear to be satisfied, so unless the petitioners satisfy the court that the

D
failure to state their addresses correctly was an innocent mistake and there D
was no intention to deceive, I would have a discretion to order security for
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costs.

F F
11.In the various affirmations filed by the petitioners in these proceedings,
G G
they have given two other addresses as their addresses, being Room 3810-

H 11, 38/F, West Tower, Shun Tak Centre, No. 168-200 Connaught Road H

Central and 35/F, China Merchant Tower, Shun Tak Centre, No. 168-200
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Connaught Road Central. The respondents asserted that from their enquiry
J made in February 2003, the petitioners have no connection with any of the J

three addresses they have provided in various documents filed in court. It

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was submitted that there was misdescription or concealment of their
L addresses with the view to evading the consequences of litigation. L

M M
12.An explanation was given by the petitioners in their affirmations made
N on 8 July 2003 why they have not provided their residential addresses and N

how it had come about that various business addresses were used instead.
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All three addresses provided by the petitioners in the documents filed in
P court are business addresses of their relative or friend and they had P

procured the agreement of the relative or friend to use such address at

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various times.
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13.According to one of the petitioners, Mr Chong Chi Yeung, he and the

S S
other petitioner, Mr Hui Ming Yeung, had decided not to use their
T residential addresses because Mr Hui is elderly and he cannot read English T

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whereas Mr Chong’s job would require him to travel overseas sometimes.

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Mr Chong was given to understand there would be correspondence sent
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from his solicitors and some might be quite urgent. To avoid the risk of

D
delay, the petitioners decided to use a business address so that someone D
could inform them if there was any urgent matter to attend to.
E E

F
14.This thinking is just wrong. The petitioners should have given their F
residential addresses, and their solicitors at the time should have advised
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them that if they were concerned that documents sent from their solicitors

H might not have received their prompt attention if sent to their residential H

addresses, then an additional address could be provided to their solicitors

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purely to facilitate the communication between solicitor and client.
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15.I am not, however, prepared to draw the inference that the mis-
K K
statement of the petitioners’ addresses was deliberate concealment or done
L with the view to evade the consequences of litigation or there was any L

intention to deceive in view of the following matters:

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(1) I am satisfied on the evidence that both the petitioners do have
N a permanent residential address in Hong Kong. In the case of N

O
Mr Chong, he has been residing at his address since 1999 at O
the latest. In the case of Mr Hui, he has been residing at his
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address which is a property owned by his son since 1995.

Q (2) The residential addresses of the petitioners have been known Q

to the respondents for some time, before these proceedings

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were issued, as the notices of the annual general meetings of
S the 2nd respondent had been served on the petitioners’ S

residential addresses.
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(3) The respondents have no apparent reason to believe that the

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petitioners might no longer have resided at their addresses.
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As late as March 2003, one Willie Lo had visited the

D
petitioners’ residential addresses to check if the petitioners D
were still living there. According to the supporting
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affirmation filed by a legal executive of the respondents’

F solicitor, Willie Lo was asked by the respondents to F

investigate if the addresses provided by the petitioners were
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indeed their addresses. The legal executive has deposed at

H length as to the result of Willie Lo’s visit to the three business H

addresses but made no mention at all of any visit to the

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residential addresses, which is less than frank with the court. I
J have no reason to disbelieve the petitioners in their J

affirmations that Willie Lo had called at their residential

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addresses in March 2003.
L (4) I cannot rule out the possibility that the petitioners have not L

been properly advised by their former solicitors when asked to

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provide their addresses.
N N

O
16.The respondents have not satisfied me that the requirements in O. 23 r. O
1(c) or (d) are made out. This application for security for costs should be
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dismissed.

Q Q
17.It is not necessary for me to deal with the lack of merits of the petition
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as submitted by the respondents, or the lateness in which the application

S was made as submitted by the petitioners. S

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18.As for costs, it seems to me that both parties are at fault. The
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petitioners are at fault in mis-stating their addresses and not giving a
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proper explanation to the respondents when requested by the respondents’

D
solicitors to do so in correspondence in March and April 2003, before the D
summons was issued by the respondents in May 2003. The respondents
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are equally at fault. Although there was mis-statement of the petitioners’

F addresses, as I have found, the respondents have no apparent reason to F

believe that the petitioners might have moved from the residential
G G
addresses which are known to the respondents for quite some time. The

H ordinary rule is to award costs in favour of the party who succeeds in an H

application. In the exercise of my discretion, I propose to depart from the

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ordinary rule in this manner. I order that the petitioners are to have half of
J their costs in this application in any event, to be taxed if not agreed. J

K K

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M M
(S Kwan)
N
Judge of the Court of First Instance N
High Court
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Ms Lorinda Lau, instructed by Messrs C Y Chan & Co., for the Petitioners
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Mr Simon Lam, instructed by Messrs William Sin & Co., for the 1st and
Q 2nd Respondents Q

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