(中文) 受新冠肺炎疫情影响，很多企业遭受经济损失，往往未能履约，产生违约事件，甚至面临破产和清盘。根据香港破产管理署在2021年1月15日发布的数据显示，2020年香港申请强制公司清盘和申请个人破产的宗数均创四年来新高。

清盘或破产呈请中，亦涉及了很多内地和香港的跨境破产程序，例如正在内地进行破产清算的企业有很多资产位于香港，内地的破产管理人需取得这些位于香港的资产的控制及处置权，这就需要香港法院对内地破产管理人提供相应的协助。

在2020年，香港法院先后颁下了两个重要判决，承认和协助由内地法院委任的破产管理人。这是内地和香港在跨境破产清盘法律方面的重大发展。本文将对两个案件进行简单介绍：

上海华信国际集团有限公司 ([2020] HKCFI 167) 案

2020年1月13日，香港高等法院原讼法庭夏利士法官 (Mr. Justice Harris) 在上海华信国际集团有限公司 ([2020] HKCFI 167) 一案中，颁下了香港法院首次承认和协助内地破产管理人的命令。

■ 案件背景

上海华信国际集团有限公司 (“上海华信”) 是一家于中国内地成立的公司。由于无力清偿债务，已在内地进入破产清算程序。上海市第三中级人民法院委任了上海华信的破产管理人。上海华信在香港拥有子公司，且在香港的主要资产是该子公司欠上海华信的720万港币的欠款，而此笔欠款已被另一独立第三方债权人以申请“第三债务人暂准命令” (garnishee order nisi) 的方式进行了扣押。一般而言，若债权人在取得“第三债务人暂准命令”后，再进一步取得“第三债务人绝对命令”的申请程序 (garnishee order absolute)，则该债权人可就该等欠款立即执行，其他方将难以作出阻挠。

为阻止该第三方债权人取得“第三债务人绝对命令”，破产管理人紧急向香港法院申请承认和协助，以搁置该第三方债权人就“第三债务人绝对命令”的申请程序。

依照上海华信破产管理人的申请，香港法院提供了承认和协助，暂时搁置了上述法律程序。

■ 承认和协助内地破产管理人所适用的法律原则

夏利士法官认为，要承认并协助在大陆法系司法管辖区下提起的清盘程序，必须满足以下条件：

(a)   该域外清盘程序须为集体程序；以及
(b)   该域外清盘程序须在该企业成立的地区提起。

(判决原文：From these decisions the following criteria emerge, which must be satisfied before recognition and assistance will be granted.

(a) the foreign insolvency proceedings are collective insolvency proceedings.
(b) the foreign insolvency proceedings are opened in the company’s country of incorporation.

Provided the above criteria are satisfied, the Court may recognise insolvency proceedings opened in a civil law jurisdiction.)

夏利士法官解释道，承认和协助域外清盘程序并不意味着香港法庭会将香港本地清盘人在《公司(清盘及杂项条文)条例》(《香港法例》第32章) 下拥有的全部权力赋予域外清盘人。普通法下协助的权力仅限于：

(a) 让域外清盘人员能够在香港行使他们在获委任地的法律下可以行使的权力；
(b) 只有在域外清盘人员有必要履行其职务时；以及
(c) 与提供协助法院所适用的实体法和公共政策一致。

当清盘人获得委任的司法管辖区的清盘制度与香港的清盘制度相似，那么法院可以颁令使域外清盘人与香港本地清盘人拥有大体上相同的权力。

(判决原文：The Companies Court does not, however, grant a foreign liquidator, whose appointment it has recognised all the powers available to a liquidator appointed by it pursuant to the Companies (Winding Up and Miscellaneous Provisions) Ordinance, Cap 32 (‘Ordinance’). The principles that circumscribe the limits of the common law power of assistance are explained …:

(a) The power of assistance exists for the purpose of enabling foreign courts to surmount the problems posed for a world-wide winding up of the company’s affairs by the territorial limits of each court’s powers…
(b) The power of assistance is available only when it is necessary for the performance of the foreign officeholder’s functions.
(c)  An order granting assistance must be consistent with the substantive law and public policy of the assisting court.

Accordingly, … ‘[i]n the case of liquidators appointed in jurisdictions with similar insolvency regimes to Hong Kong, the assistance may extend to granting orders that give the foreign liquidators substantially similar powers’.”)

基于本案事实和法庭的分析，夏利士法官颁下决定，承认和协助上海华信的内地破产管理人。这是香港法院第一次对内地破产管理人予以承认和协助，也为香港法院在处理相关案件时提供了详细的法律原则。

深圳市年富供应链有限公司 ([2020] HKCFI 965) 案

2020年5月26日，夏利士法官再就深圳市年富供应链有限公司 ([2020] HKCFI 965) 一案颁下判词，再一次承认和协助内地破产管理人在港履行职务。

■ 案件背景

深圳市年富供应链有限公司 (“深圳年富”) 于中国内地注册成立，从事的业务包括供应链管理、物流管理以及境内和国际货运代理等服务。

2018年12月，深圳年富在内地进入破产清算程序，并由深圳中院委任了破产管理人。深圳年富的业务与香港有着紧密的联系。

■ 香港子公司陷入财务困难

在进入破产清算前，深圳年富曾通过两家香港子公司开展了一系列供应链相关的业务。这些子公司于香港持有多个银行账户，总额约为1250万元人民币，亦持有对外贸易应收账款约人民币41亿元。但是，担任这些子公司的独任董事在内地被拘留，子公司已无人管理和收回这些应收账款。

为了履行破产管理人的相关职责，深圳年富的破产管理人需将子公司的财务正规化，并收回相关账款。因此，深圳年富的破产管理人向香港法院提出了承认和协助的申请，以便行使深圳年富对其在香港子公司的所有权利。

■ 法庭决定承认和协助深圳年富的内地破产管理人

夏利士法官运用了其于上海华信案里已详细阐述的法律原则，认为深圳年富的清盘程序是在企业成立地 (即内地) 提起的集体程序，且深圳法院已委任了破产管理人。于是法官颁令给予深圳年富的破产管理人所申请的承认和协助。

(判决原文：I am satisfied that the winding-up in the Mainland is a collective insolvency proceeding in the Company’s place of incorporation and that the Liquidator has been appointed by the Shenzhen Court to wind up the Company. I will, therefore, order that the winding-up and the Liquidator are recognized.)

总结

香港法院在2020年相继就上述两个案件作出了裁定，这是涉及内地和香港跨境破产及清算法律相互协助的一大发展。两个案件充分表明了香港法院对于涉及内地和香港跨境破产/清算法律援助的支持态度，对于跨境破产/清算法律的发展具有重要意义。

当然，香港法院是否会为内地破产管理人提供协助，将取决的每个案件的情况，也视乎于内地和香港是否会有统一的跨境破产清盘的方式。(判词原文：“The extent to which greater assistance should be provided to Mainland administrators in the future will have to be decided on a case by case basis and the development of recognition is likely to be influenced by the extent to which the court is satisfied that the Mainland, like Hong Kong, promotes a unitary approach to transnational insolvencies.”)

本文由本所合伙人，诉讼及争议解决部主管徐凯怡律师撰写。若阁下想了解更多详情，请联络本所徐凯怡律师。

Since Hong Kong is an international commercial centre, not only locals, but people from the Mainland or other overseas countries may have different kinds of assets in Hong Kong. When a person passes away, it is possible that his/her estate includes assets in Hong Kong, such as cash at banks, shares and real properties etc.

Regardless of whether the deceased had left a will, anyone who needs to manage the deceased’s assets in Hong Kong must apply for a Grant of Representation (“Grant”) from the Probate Registry of the High Court of Hong Kong Administrative Region. The Grant includes Probate, Letters of Administration, or Letters of Administration with Will Annexed. The Grant is a document issued by the Court confirming the authority of the personal representative to administer the estate of the deceased.

We are often faced with cases involving foreign elements for the matters we handle. For example, where the deceased had assets outside of Hong Kong, or vice versa, where Mainland or overseas domiciled deceased had assets in Hong Kong. This gives rise to the following questions: What law governs the administration and succession of the Hong Kong estate? How to inherit such estate?

The following common law rules apply in Hong Kong:

• Immovable property (e.g. real property): Governed by the law of the location of property. For instance, where the deceased died domiciled outside Hong Kong intestate, but had a real property in Hong Kong, the Hong Kong law of succession will be applied in relation to the distribution of the said real property.
• Movable property (e.g. cash, shares or personal chattels): Governed by the law of the deceased’s place of domicile. For instance, if the deceased died domiciled in the PRC, no matter in which jurisdiction his/her movable properties are located, the distribution of the said movable properties will depend on the law of succession of the PRC.

What is Domicile?

When administrating the deceased’s estate in Hong Kong, the first thing is to identify his/her place of domicile. At common law, domicile is defined as “the place or country which is considered by law to be a person’s permanent home”. In Hong Kong, the concept of domicile is governed by the Domicile Ordinance (Cap.596). In general, domicile is determined by a person’s presence in a country and his/her intention to make a home in that country for an indefinite period.

Factors which are relevant to determining the domicile of a deceased are, but not limited to, the followings:-

1. The nationality of the deceased;
2. In which country or place did the deceased live before his/her death; and
3. On what basis did the deceased live in that country or place.

The Probate Registry will also take the following factors into account when determining whether the deceased had the intention to make a home in Hong Kong indefinitely:-

1. Whether the deceased’s presence in Hong Kong was legal;
2. For how long the deceased had stayed in Hong Kong;
3. Did the deceased have a consistent place of residence and a job in Hong Kong;
4. Whether the deceased had most of the assets in Hong Kong; and
5. Whether the deceased had friends and/or relatives in Hong Kong.

How does domicile affect the application procedures for a Grant in Hong Kong?

1. The deceased died domiciled in Hong Kong

The intended personal representative(s) should make an application to the Probate Registry for a Probate (where the deceased died testate), a Letters of Administration (where the deceased died intestate) or a Letters of Administration with Will Annexed (where the deceased made a Will but no executors can be appointed).

To apply for a Grant, the applicant(s) have to bring along the originals of the Will (if applicable) and the death certificate to the Probate Registry. Once filed into the Court, the original Will (if applicable) and the original death certificate will not be returned to the applicant(s). There are also Specified Forms to be completed for the application. The applicant(s) also have to prepare a Schedule of Assets or Liabilities to set out everything the deceased owned and/or owed in Hong Kong as at the date of his/her death. The same will be attached to the Grant to facilitate the administration of the estate.

2. The deceased died domiciled outside Hong Kong

(1) The deceased died domiciled in the common law countries/jurisdictions under section 49 and Schedule 2 of the Probate and Administration Ordinance (Cap. 10)

These countries include:-

• New Zealand;
• Singapore;
• Sri Lanka;
• The Australian States of Tasmania, Victoria and South Australia and the Northern Territory of Australia; and
• United Kingdom.

If the application for a Grant is not contested, the executor(s) or administrator(s) can first obtain a Grant in the place of the deceased’s domicile. Afterwards, they can apply for the foreign Grant to be resealed in Hong Kong. The resealed Grant has the same legal force and effect as the Grant issued by the Probate Registry. When applying for the resealing of a foreign Grant, the applicant(s) should bring along the followings:-

• The original or certified copy of the Grant issued by the place of the deceased’s domicile;
• Authenticated copy of the death certificate;
• Court certified copy of the Will (if any); and
• The schedule of assets and liabilities of the Deceased in Hong Kong as at the date of his/her death.

(2)  The deceased died domiciled in Mainland China

If the deceased, being a PRC resident, had assets in Hong Kong, the executor(s) or administrator(s) should make a fresh application to the Probate Registry for a Grant. If the deceased had immovable property in Hong Kong, the entitlement to the Grant will be governed by the Non-Contentious Probate Rule under the laws of Hong Kong; if the deceased had movable property such as cash at bank or shares, the PRC succession law will be applied. The Probate Registry will rely on the legal opinion by a PRC lawyer explaining who is entitled to apply for the Grant and who is entitled to the distribution of the estate etc.

Where the administration of the estate is governed by the law of succession of the PRC, the Probate Registry will also require the following notarised documents:-

• Certificate of Relationship;
• Certificate of Rights and Inheritance; and
• Death certificate of the deceased.

These certificates are issued by the Notarial Office of the PRC, and have to be authenticated by the authorised Officer of the Consular Department of the Ministry of Foreign Affairs of the PRC.

Conclusion

This article introduces the procedures to the application of a Hong Kong Grant. It is crucial to determine the deceased’s domicile, the content of his/her Will and the nature and whereabouts of the estate. If the deceased died domiciled outside Hong Kong, it is necessary to engage overseas lawyers to work with lawyers in Hong Kong for the administration of the estate.

This article is co-authored by our experienced SW Private Team –Partners Catherine Por and Wendy Lam, and our Senior Associates Karl Wong and Calvin Lo. Please contact Catherine Por or Wendy Lam for any further enquiries or information.

This newsletter is for information purposes only. Its content does not constitute legal advice and should not be treated as such. Stevenson, Wong & Co. will not be liable to you in respect of any special, indirect or consequential loss or damage.

Stevenson, Wong & Co. acted as the Hong Kong legal advisers to Sundy Service Group Co. Ltd (stock code: 9608) (“Sundy Service”) in respect of its successful listing on the Main Board of The Stock Exchange of Hong Kong Limited (the “Stock Exchange”).

The shares of Sundy Service were listed on the Stock Exchange on 18 January 2021. Sundy Service offered a total of 800 million shares, among which 240 million shares were offered under the Hong Kong public offering and 560 million shares were offered under the international placing (after reallocation). The offer price was HK$0.25 per offer share, and the gross proceeds from the global offering amounted to HK$200 million.

Sundy Service and its subsidiaries (the “Group”) are a reputable integrated property management service provider in the property management industry in Zhejiang province. As at 30 June 2020, it provided property management services to 33 properties covering 14 cities in People’s Republic of China, with a total gross floor area under management of over 6.4 million sq.m.. The Group was ranked 56th among the “Top 100 Property Management Companies in China” (中國物業服務百強企業) in terms of overall strength of property management in 2020. In addition, in 2019, among the Top 100 Property Management Companies headquartered in Hangzhou and Zhejiang province, the Group was ranked 5th and 7th in terms of net profit, respectively.

The sole sponsor of the listing was Cinda International Capital Limited. The joint global coordinators were Cinda International Capital Limited and Elstone Securities Limited, while the joint bookrunners were Cinda International Capital Limited, Elstone Securities Limited, CCB International Capital Limited and Crosby Securities Limited.

Our team was led by our partners Mr. Hank Lo and Mr. Rodney Teoh, supported by team members including Ms. Florence Wai (associate), Ms. Claire Sit (associate) and Ms. Doris Wang (registered foreign lawyer).

Please contact our Mr. Hank Lo or Mr. Rodney Teoh for any enquiries or further information.

We are pleased to announce that our firm’s SW Private practice and Head of department, Ms. Catherine Por have been recognised in The Legal 500 Asia Pacific 2021 Guide.

Researchers carry out extensive research in each jurisdiction, canvassing law firms and contacting more than 300,000 clients for feedback on the lawyers they instruct. Recommended by the Legal 500, our SW Private practice “offers comprehensive private client coverage, includes matrimonial expertise, family wealth and succession planning, as well as niche expertise on managing the assets of the mentally incapacitated. Catherine Por heads the family law team and has broad-ranging contentious and non-contentious expertise, including ancillary relief and matters concerning custody and maintenance of children.”

Leading Firm | Private Client (Tax, Trusts, Wealth Management and Contentious Probate)

Recommended Lawyer | Ms. Catherine Por

About Ms. Catherine Por

Catherine heads SW Private in the firm. She specializes in all aspects of family law disputes, and has extensive experience in complex financial claims, intervener proceedings, financial claims under Part IIA of the Matrimonial Proceedings and Property Ordinance (Chapter 192), Child Abduction cases, relocation of children, claims under the Guardianship of Minors Ordinance (Chapter 13), custody cases, pre-nuptial and post-nuptial agreements, contentious and non-contentious trust cases, contentious estate matters; cross border issues and enforcement proceedings. She has on a number of occasions provided expert legal opinions on Hong Kong Family Law.

Catherine is also an Accredited General and Family Mediator, Fellow of the Chartered Institute of Arbitrators and is a Notary Public and Civil Celebrant of Marriages.

About The Legal 500 Asia Pacific

Published annually, The Legal 500 Asia Pacific provides unbiased commentary and insight into the legal marketplaces of 25 Asia Pacific jurisdictions. For 33 years, The Legal 500 has been analysing the capabilities of law firms across the world, with a comprehensive research programme revised and updated every year to bring the most up-to-date vision of the global legal market.

Please click here to see the ranking or contact Ms. Catherine Por for further enquiries.

We are delighted to announce that our firm’s Partner Sherlynn Chan and Senior Associate Gordon Tsang have received Gold Awards in the Pro Bono Community Work Recognition Programme 2020. Organised by the Law Society of Hong Kong, the award aims to recognise and commend its members’ selfless contributions in pro bono services.

This is the first time for Sherlynn Chan to participate in the programme. She commented: “I am honoured to be recognised for my contribution to raising awareness on mental health, capacity and children issues in Hong Kong. I look forward to more collaboration with other NGOs and charitable organisations that have the same vision and passion in this area of work.”

Our senior associate, Gordon Tsang has been accorded with this accolade for 6 consecutive years, said “I am always passionate and enjoy the times in providing guidance to the youth.”

To receive the Gold award, a practitioner has to provide no less than 100 hours of pro bono professional volunteer services throughout the past year.

About the Pro Bono and Community Work Recognition Programme

The Law Society of Hong Kong’s Pro Bono and Community Work Recognition Programme aims to encourage law firms and members who carry out pro bono and community-focused work; it was set up in January 2010. All members, trainee solicitors and registered foreign lawyers who are active in giving back are given the opportunity to be recognised and appreciated.

Please click here to watch the ceremony or contact Ms. Sherlynn Chan and Mr. Gordon Tsang for further enquiries.

On 4 January 2021, China Business Law Journal published the A-list 2020: China’s Elite 100 Lawyers. We are delighted to announce that our firm’s partner and head of Corporate Finance, Hank Lo, has once again been recognised as one of China’s Elite 100 lawyers (Foreign firm) for 2nd consecutive year.

The list recognises leading lawyers in the China market. By conducting thousands of interviews with in-house counsels and partners of top law firms in Asia, the finalists are recognised for their landmark deals, cases and other notable achievements over the past year.

Hank, head of our firm’s Corporate Finance, specializes in capital markets, corporate finance and mergers and acquisitions. He has significant experience in advising issuers, sponsors and underwriters on initial public offerings on both the main and GEM boards of The Stock Exchange of Hong Kong Limited; advising publicly listed companies on a broad range of corporate finance transactions; advising private equity funds, venture capital funds and Hong Kong-listed companies on their investments in and exits from companies with an emphasis on China. He also advises companies in Mainland China on matters of property transactions, foreign investment and initial public offerings in other overseas stock markets.

For more information, please visit here or contact Mr. Hank Lo.