CO129-585-3 Sino-Japanese conflict- shipping 17-1-1940 - 13-11-1940 — Page 43

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B

IN THE SUPREME COURT OF HONGKONG COMPANIES (WINDING UP) No. 1 of 1939.

Appeal No. 15 of 1939.

L

IN THE MATTER of the Companies Ordinance, 1932.

and

IN THE MATTER of the Ching Kee Steam Navigation Company, Limited.

JUDGMENT

I agree with the judgment which has just been delivered by the learned Puisne Judge.

The Ching Kee Steam Navigation Company, Limited, is a company incorporated under the laws of the Republic of China and having its principal place of business at Chefoo in the Province of Shan Tung, now occupied by the Japanese forces.

The company is carrying on business in Chefoo, Dairen, An Tung, Tientsin, New Chwang, Tsingtao and Shanghai, and its ships fly the Chinese flag. But that they do so is little more than a fiction. The ships enjoy only a limited freedom. Their movements are controlled by Japanese agents.

With that state of affairs the majority of the shareholders, who are the appellants in this case, appear to concur. But there are fifteen hundred of them, the respondents in this case, who do not concur with the action of the majority, who wish to dissociate themselves from it and the other shareholders, and who to that end have petitioned in the Chinese courts for the dissolution of the company.

The jurisdiction of inferior courts in China is derived from section 2 of Article II of the Chinêsê Civil Code

"Regarding the proceedings against a private juristic person or other corporate bodies capable of being made parties in a suit, the court of the district where its principal office or principal place of business is shall be of competent jurisdiction."

But the court to which application would ordinarily have been made, namely the Chefoo District Court, was prevented from exercising its functions by the military occupation of Chefoo by the Japanese, A special court of first instance was appointed by an order of the Supreme Court of China, under Article XXIII of the Chinese Revised Code of Civil Procedure, by which

11 .. the court directly higher than the court whose jurisdiction is in question shall appoint, on the application of a party to the proceedings, a court of competent jurisdiction . . when a court of competent jurisdiction is, by reasons of law or fact, prevented from exercising its power of conducting a hearing."

The special court ordered the dissolution of the company and from that decision the appellants in this case appealed to the Supreme Court of China, which rejected the appeal.

It