Charter Port Ltd v. Hui Kam Fong Wendy

HCA 632/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 632 OF 2015

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BETWEEN

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J U D G M E N T (2)

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Introduction

1.On 28 April 2017, this court handed down a judgment (“Main Judgment”) in respect of this action together with 3 other actions, namely:

(i) HCMP 557 of 2014 (“Gold Glory Action”);

(ii) HCMP 1558 of 2015 (“Possession Action”);

(iii) HCA 1497 of 2015 (“Loan Action”).

2.In this judgment, save as otherwise indicated, I will adopt the same abbreviations in the Main Judgment.

3.At the end of the trial, this court made factual findings including the following:

(i) The authorized signatory for the BOC Account was changed at the request of Lin and/or on instructions of Lin and/or with his knowledge, consent and/or authorization[1];

(ii) Lin did have knowledge, and had consented and/or authorized the alleged Unauthorized Appointments[2];

(iii) There was no sufficient evidence that the use of the Post Office Box by Hui as a correspondence address for Charter Port was to conceal any information from Lin, let alone that it was part of the Criminal Plot or that Hui was attempting to cover up any of her wrong doings[3];

(iv) Lin had agreed to Hui withdrawing HK$208,000 per annum as her director’s remuneration for the year ended 31 March 2008 and thereafter[4];

(v) The sum of HK$208,000 per annum was the sum Hui was entitled to draw as director’s remuneration;

(vi) There was no sufficient evidence that Hui was in breach of her fiduciary duties or breach of trust;

4.As for the Withdrawals prior to 31 March 2008, these were accounted for by Hui for audit at the relevant time[5];

5.As for the Withdrawals after 31 March 2008, this court’s findings in relation to P’s Schedule were that the following items were found to be to Hui’s director’s account and/or should be paid by her:

(i) Items under Category (A) of P’s Schedule were on account of Hui’s director’s fees[6];

(ii) All items under Category (B) of P’s Schedule were on account of Hui’s directors’ fees, save for items 9 and 14[7];

(iii) All items under Category (C) be paid by Hui[8]

(iv) All 6 payments to Wing Ming including items 30 and 31 under Category (D) ought not be paid by Hui or to Hui’s director’s account[9];

(v) Items 34, 36, 37, 39 and 40 under Category (D) should not be paid by Hui or her account[10];

(vi) Item 40 under Category (E) should not be paid by Hui[11].

6.This court then directed the parties to submit with 28 days an agreed schedule of the amounts which should be repaid by Hui to Charter Port, if any, after taking into account this court’s findings and Hui’s entitlement to director’s fees of HK$208,000 per annum commencing from 1 April 2007 until the date of her removal as director.

7.Charter Port’s solicitors sent to the court a letter dated 26 May 2017, with a schedule which they had sent to Hui’s solicitors (“Schedule”), to which they had received no reply from Hui’s solicitors.

8.It was not until 15 June 2017 that Counsel for Hui Mr Cheung lodged submissions.  It was not clear what they were disputing, but it would appear that they had no objection that the amount of Withdrawals under Categories A-E was HK$928,108, and that the sum Hui was entitled to draw as director fees from 1 April 2007 until her removal was a total of HK$1,386,667.  It appeared that Mr Cheung was submitting was that after setting off the figures, the outstanding balance to be paid by Charter Port to Hui should be HK$458,559.

9.Counsel for Charter Port had also lodged submissions in reply.  As pointed out by Mr Wong and as mentioned in the Main Judgement, there was no counterclaim by Hui against Charter Port.

10.Having considered the Schedule, there was no amount payable by Hui to Charter Port.  In the circumstances, Charter Port’s claim against Hui in this action is dismissed and I order in terms of the draft order submitted by P.

Dr William Wong SC, Ms Ebony Ling and Ms Ellen Pang, instructed by Boase Cohen & Collins, for the plaintiff

Mr Jeremy Cheung and Ms Candy Tang, instructed by George Chan & Co, for the defendant