Chen Yung Ngai Kenneth and Another v. Ho Yuk Wah David (A Bankrupt) and Others
Read the full judgment text of HCA 971/2012 on BabelCite. This High Court CFI judgment was delivered on 28 September 2020.
1. This is the trial of the Action.
Cited by 11 cases · Cites 10 cases
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HCA 971/2012 [2020] HKCFI 2518 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 971 OF 2012 _________________ BETWEEN
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________________ J U D G M E N T ________________ Introduction[1] 1.This is the trial of the Action. 2.The Plaintiffs bring this Action in order to recover assets which they claim to belong to David Ho’s bankruptcy estate. In a nutshell, the Plaintiffs allege that since 1996[2], David Ho has always beneficially owned/controlled and still owns/controls through nominees the 6th Defendant and other companies within the so-called Asia-Pac Group which were incorporated or acquired by David Ho. 28 such Asia-Pac Group companies were named in the Schedule (“Schedule”) to the Re-Amended Statement of Claim including inter alia all the corporate Defendants in this Action ie the 2nd to 11th Defendants (“Corporate Defendants”) as well as Ferdinan Limited (“Ferdinan”), Asia-Pac Infrastructure (Holdings) Limited (“APIHL”), Bestwin Asia Limited (“Bestwin”) and Greater Beijing Region Expressways Limited (“GBRE”). 3.While that is the essence of the Plaintiffs’ general case, in the prayer for relief[3] in the Re-Amended Statement of Claim, the Plaintiffs’ claims in this Action are limited to:
4.From the above, it is reasonably clear that the Plaintiffs’ targets for relief are against the shares in the 6th and 9th to 11th Defendants. With regard to these 4 companies, the Plaintiffs claim that David Ho or his nominees had set them up or acquired them and had never parted with beneficial ownership of them. Rather, he had masked his beneficial ownership with layers of nominee shareholders and masked his control of them with his corporate and personal nominees. 5.In the premises, this court will focus its analysis of the issues raised in the pleadings and the evidence, including any inferences, if any, which can be drawn for or against the parties, in so far as they pertain to the relief sought. This court will also only make such findings of fact in so far as they are necessary for the purpose of adjudicating upon the relief sought. 6.Specifically, in relation to the 6th Defendant, 2 particular transactions feature prominently in this case as, according to the Plaintiffs, part of the means by which David Ho masked his beneficial interest in the 6th Defendant. These 2 transactions are known as (i) the Sham Sale of the 6th Defendant via the sale of APIHL[4] in November 2004 to Bestwin (“Sham Sale”) and (ii) the Sham Re-capitalisation of the 6th Defendant in December 2007 involving the payment to and injection of assets into the 6th Defendant and the allotment of the 6th Defendant’s shares to the 3rd and 4th Defendants (“Sham Re-capitalisation”). David Ho and family 7.David Ho was formerly a solicitor practising in Hong Kong. In around December 1994, he set up his own law firm viz David YW Ho & Co (“Firm”) as its sole proprietor. Ms Jade Ho Yuk Kuen (“Jade Ho”) is the younger sister of David Ho. By an agreement dated 17 November 2004, David Ho allegedly sold the Firm to her for HK$1.2 million. Jade Ho is alleged to be a nominee of David Ho. Mr Yu Yang (“Yu Yang”) was David Ho’s former brother-in-law—David Ho and Yu Yang’s younger sister got married in 2010 in the PRC. They eventually divorced in 2015. Yu Yang is also alleged to be a nominee of David Ho. 8.In August 2011, on David Ho’s own petition, a bankruptcy order was granted against him in HCB 3819 of 2011. In September 2011, the Plaintiffs were appointed joint and several trustees of the property of David Ho. David Ho’s debts, according to his Statement of Affairs, exceeded HK$160 million. He had declared only negligible assets. 9.Prior to his bankruptcy, David Ho or his alleged corporate nominees was involved in a number of litigation, some of which will feature in this Judgment. They were:
10.The Ing Case was settled in 2011 at a substantial loss according to Yu Yang. The result of another ie the Mak Case was very unfavourable to David Ho: after trial, the court granted a judgment of HK$32 million against him on 12 November 2004. The Shearman Case was, according to Yu Yang, in a state of delay owing to insufficient funding, and, according to Ms Lam SC and not disputed by Mr Kwok, is still on-going. However, the significance of these cases lie in the fact that evidence had been given by David Ho in them and/or the Courts’ assessment of it which, as shall be seen, lends support to the Plaintiffs’ case. Relevant companies within the Asia-Pac Group 11.The network of the Asia-Pac Group of companies allegedly set up by David Ho is highly complex. What follows is a simplified table showing the corporate information of those companies which are relevant to the Plaintiffs’ case.[7] 12.The 2nd Defendant (Gladius Limited, previously known as D Ho Nominees Limited)[8]:
13.Ferdinan (previously known as D Ho Corporate Services Limited)[13]:
14.Grand Asia Group Holdings Limited[18]:
15.The 3rd Defendant (Ontrade Properties Limited)[19]:
16.The 4th Defendant (King Ocean Development Inc)[20]:
17.The 5th Defendant (Asia-Pac Group Investments Limited or APGIL)[21]:
18.The 6th Defendant (Asia-Pac Infrastructure Development Limited)[23]:
19.The 8th Defendant (Grand Asia Capital Services Limited)[26]:
20.The 9th Defendant (Pacific Shine Limited)[28]:
21.The 10th Defendant (Sparkle Lanes Limited)[30]:
22.The 11th Defendant (Tsun King Group Limited)[32]:
23.As far as APIHL is concerned, the only available evidence shows that it was incorporated in the BVI on 8 May 1996 in the name of Multi Input Systems Limited and changed its name to APIHL on 30 December 1996. David Ho was its sole shareholder at least from 22 May 2003 to 18 November 2004 when Bestwin became its sole shareholder from 18 November 2004 onwards[34]. 24.David Ho was the sole director of APIHL who signed the director’s resolution dated 18 November 2004 approving the Sham Sale. As the register of directors is not available, there is no evidence of any change of APIHL’s director since 18 November 2004. The Company was struck off the BVI Register of Companies on 1 November 2007. 25.As far as Bestwin is concerned, the available evidence shows that it was incorporated in the BVI on 11 November 2003 and struck off the BVI Register of Companies on 1 May 2008. Joshua Chan Tak Lam (“Joshua Chan”) was its director at the time of the Sham Sale and signed the Instrument of Transfer on behalf of Bestwin. Joshua Chan was a business associates of David Ho—they were co-directors, at least in 2002 and 2003, of Beijing Jun Ya Property Management Company Limited 北京骏亚物业发展有限公司 (“Beijing Jun Ya”), a sino-foreign cooperative venture established in 1998. Joshua Chan is alleged to be a nominee of David Ho. 26.Lastly, as for the current position, suffice it to note that
David Ho’s personal nominees 27.Of the 9 persons pleaded as David Ho’s nominees, the following persons had responded to the Plaintiffs’ investigation in correspondence. They were all at some stage associated in a salaried position with the Firm, the 6th Defendant or GBRE when David Ho was in charge. 28.All the following persons had confessed, in one way or another, they had indeed acted in accordance with the instructions of David Ho or the Firm in relation to the affairs of the Asia-Pac Group of companies. They are:
29.To conclude, this court finds the Plaintiffs have made out their case that Brian Chan, Jeff Li, Peter Lo and Fong were among the numerous nominees of David Ho who were accustomed to act in accordance with his instructions. In the course of this court’s deliberation, more nominees will be identified. 30.This court also finds that David Ho is the kind of person who exhibited a distinct tendency to use nominees in his business dealings. In the absence of evidence of any innocuous purpose coming from him, the reason for this tendency is, on balance of probabilities, to hide his relationship with companies under his control. Indeed, he admitted almost as much in relation to the 6th Defendant in his 2nd affirmation dated 14 December 2010 filed in New World Appeal Case at paragraph 7. The parties’ pleaded cases 31.The Plaintiffs’ pleaded case is this. 32.David Ho has set up a network of companies ie the Asia-Pac Group companies which he has always beneficially owned and controlled including inter alia the Corporate Defendants. Apart from using some of the companies as his corporate nominees, David Ho also used a number of personal nominees to hold shares and/or act as directors of the Asia-Pac Group companies. 33.The Sham Sale of the 6th Defendant (via APIHL) and the Sham Re-capitalisation of the 6th Defendant were shams and for that reason were void and of no legal effect. These sham transactions were orchestrated by David Ho using his nominees. 34.The shares in APIHL and hence the 6th Defendant were and are being held on resulting trust by Bestwin for David Ho as no consideration had ever been paid by Bestwin. 35.David Ho was and is the beneficial owner of the 9th to 11th Defendants. 36.The 2nd to 5th, 8th and 9th Defendants (“Active Defendants”) together with the 10th Defendant have filed an Amended Defence which consists mostly of non-admissions and bare denials. In particular, they have made a bare denial that the 9th to 11th Defendants are beneficially owned by David Ho. 37.Importantly, they do not plead to the Plaintiffs’ plea about (i) David Ho’s beneficial interest in the 6th Defendant and other Asia-Pac Group companies ie those set out in the Schedule including inter alia the Active Defendants themselves[38], and (ii) the Sham Sale of the 6th Defendant in November 2004.[39] 38.There is also no positive plea as to the circumstances under which Yu Yang came to own the 2nd to 5th Defendants, notwithstanding the fact that after the Sham Re-capitalisation exercise on 31 December 2007, the 6th Defendant’s registered shareholders were the 2nd to 5th Defendants and their positive plea below that Yu Yang was the ultimate owner of and controlled the 6th Defendant. 39.Their only substantive positive pleas are these. 40.They admit the agreements concerning the Re-capitalization of the 6th Defendant in 2007 but aver they were not a sham since the 3rd and 4th Defendants had agreed to fund the 6th Defendant for the substantial legal costs and any security for costs order against it in the Ing Case and the Shearman Case. The 3rd and 4th Defendants agreed to do on the basis that the main assets of the 6th Defendant were its claims in the Ing Case and the Shearman Case where substantial amounts were involved. If the 6th Defendant succeeded at trial, the value of its shares would increase. 41.Yu Yang was the ultimate owner of and controlled the 6th Defendant. 42.The 10th Defendant is a wholly owned subsidiary of the 6th Defendant and not beneficially owned by David Ho. 43.The Joint and Several Liquidators of the 6th Defendant has filed an Amended Defence which consists largely of denials and non-admissions. At trial, it takes a neutral stance. The Defendants’ conduct in the Action/trial 44.David Ho has not taken part in the Action. 45.The Active Defendants are the only entities defending the Plaintiffs’ claims at the trial. 46.The 6th Defendant is in creditors’ voluntary liquidation and adopts a neutral stance. It was, at its own request, excused from attending the trial. 47.The 7th Defendant has been struck off the BVI Register of Companies in May 2003. The action against it has been discontinued. 48.The 10th Defendant has ceased to be legally represented by Order of Master J Wong dated 12 April 2019 and did not take part in the trial. According to Mr Kwok, which is not disputed by Ms Lam SC, it has been struck off the BVI Register of Companies. 49.The 11th Defendant has not taken part in the Action. The parties’ witnesses at the trial 50.The Plaintiffs have called 1 live witness viz Mr Arthur Ip Pui Lam (“Ip”) and also seek to rely on the witness statement of Peter Lo as hearsay evidence. 51.Ip has no personal knowledge of the material factual events. As Ms Lam SC put it, the Plaintiffs’ case is based on the evidence, documentary as well as admissions from previous employees of the Firm and the Asia-Pac Group companies, obtained in the course of their investigation into the financial affairs of David Ho and their case is about what can or cannot be established by or inferred from such evidence. 52.While the Active Defendants have participated at the trial, they have not called any live witnesses to testify on their behalf. Instead, they choose to rely on the witness statements of (i) Yu Yang, (ii) Liu Shu and (iii) Hou Chung Man Anita (“Hou”) filed in these proceedings as hearsay evidence[40]. 53.Since the parties do not dispute the admissibility of those witness statements, this court is prepared to admit them as hearsay evidence, subject to submissions by the parties on weight. But first, some preliminary observations should be made about these hearsay statements. 54.As far as Peter Lo is concerned, the gist of his evidence can be found in the section entitled “David Ho’s personal nominees” above. 55.Yu Yang is pleaded as a nominee of David Ho. 56.In his witness statement, Yu Yang makes a bare assertion that he is the direct or indirect shareholder or beneficiary of the 2nd to 6th and the 8th to 10th Defendants as well as the former indirect shareholder of the 11th Defendant. 57.At paragraphs 81 to 85 of Mr Kwok’s Closing Submissions, it is submitted that Yu Yang and his sister agreed to invest in inter alia David Ho’s (or strictly speaking the 6th Defendant’s) litigation projects at the end of 2007. Since David Ho was familiar with the projects, Yu Yang and his sister agreed that David Ho continued to manage them. In return, David Ho proceeded to arrange the transfer of companies which he said were owned by his UK relatives to Yu Yang from 2008 to 2010. These companies included the 2nd to 5th Defendants. 58.But the fact is that Yu Yang has never explained clearly in his witness statement the circumstances under which he became the (direct or indirect) shareholder or beneficiary of the 2nd to 5th Defendants and thus the 6th Defendant, or the 8th to 11th Defendants for that matter, after he and his sister had decided to make the investment. Mr Kwok relies on paragraphs 10, 11 and 31 of Yu Yang’s witness statement as evidential support of his submission. But those paragraphs, apart from being bare assertions, are vague on the identity of the companies that Mr Yu was actually referring to - they simply do not provide the necessary evidential support that Mr Kwok needs to make good his submissions. For ease of reference, they are reproduced below:
59.From the corporate information, Liu Shu is a director of the 2nd, 3rd, 5th and 6th Defendants. In her witness statement, she says since May 2006, she was employed by the Beijing branch of the Asia Pacific Group to handle administrative and finance matters. When David Ho moved to Beijing in 2007, they became colleagues and got familiar with each other due to work. They also discussed the litigation projects handled by David Ho and later invested in by Yu Yang and his sister. 60.Hou is one of the joint and several Liquidators of the 6th Defendant together with Alan Tang Chung Wah appointed in April 2013. In her witness statement, Hou says in her view, this Action is a matter between the Plaintiffs and the 2nd to 5th Defendants regarding the beneficial ownership of the 6th Defendant and the 6th Defendant is in a passive position in this regard. She claims to have no knowledge of the Sham Sale and Sham Re-capitalisation of the 6th Defendant. As this court sees it, Hou’s evidence is fairly peripheral and of no or little probative value. Drawing of Inferences / Adverse Inferences 61.As Ms Lam SC points out, the Plaintiffs’ case is based on the evidence obtained in the course of their investigation into the financial affairs of David Ho and their case is about what can or cannot be established by or inferred from such evidence. 62.In Ming Shiu Chung v Ming Shiu Sum (2006) 9 HKCFAR 334 Ribeiro PJ (Bokhary and Chan PJJ and Fuad and Sir Thomas Eichelbaum NPJJ agreeing) set out the proper approach to the drawing of inferences as follows:
63.As for adverse inference, it is well established that if a party against whom a prima facie case is established omits to call an available witness, then unless there is some plausible explanation for the omission, adverse inferences can be drawn against him. 64.In Li Sau Keung v Maxcredit Engineering Ltd [2004] 1 HKC 434 at [28], Le Pichon JA set out the proper approach to the drawing of adverse inference in this way:
65.In Prest v Petrodel Resources Ltd & Ors [2013] 2 AC 415 at [44], Lord Sumption JSC explained the principle on the drawing of adverse inference by reference to 2 well-known authorities:
66.In the sections below, this court will endeavour to explain why certain adverse inferences can and should be drawn against the Active Defendants for not calling (i) Yu Yang who claims to be the direct or indirect shareholder or beneficiary of the 2nd to 6th and the 8th to 10th Defendants as well as a former indirect shareholder of the 11th Defendant, and (ii) Liu Shu who actually signed the statement of truth in support of their Amended Defence which includes the positive plea that the Re-capitalization of the 6th Defendant in 2007 were not a sham since the 3rd and 4th Defendants had agreed to fund the 6th Defendant for the substantial legal costs and any security for costs order against it in the Ing Case and the Shearman Case on the basis that the main assets of the 6th Defendant were its claims in the Ing Case and the Shearman Case where substantial amounts were involved. 67.In particular, Yu Yang is pleaded as a nominee of David Ho. His failure to come forward to rebut this allegation is most telling. Deliberation David Ho’s beneficial ownership and control of the 6th Defendant & other related companies from 1996 to 2004 68.David Ho set up the 6th Defendant in 1996. In his 2nd affirmation dated 14 December 2010 filed in New World Appeal Case in which he was the 1st Respondent, he stated in paragraph 7 as follows:
69.Around the time of the Sham Sale of APIHL in November 2004, the registered shareholders of the 6th Defendant were APIHL and D Ho Nominees Limited (subsequently changed its name to Gladius), while shortly before or after the Sham Sale, David Ho, Universal Winner and Jeff Li were the 6th Defendant’s directors. Further, APIHL’s registered sole shareholder was David Ho. D Ho Nominees Limited’s registered shareholders were likely to be David Ho and his company D Ho Corporate Services Limited (subsequently changed its name to Ferdinan): see corporate information on the 2nd Defendant. 70.According to Brian Chan, D Ho Nominees Limited was a corporate service company set up by the Firm like another company with similar name viz D Ho Corporate Services Limited. 71.By a board resolution of the 6th Defendant dated 6 December 2004, David Ho signed on behalf of himself and Universal Winner as directors of the 6th Defendant in order to add Jade Ho and Jeff Li as the bank signatories of the 6th Defendant. 72.In the same 2nd affirmation filed in New World Appeal Case, David Ho stated at paragraph 14 that:
73.Lastly, in a letter from Dao Heng Bank dated 20 February 2008, the Bank confirmed that the 5th, 6th and 7th Defendants were its valued customers and were part of the Asia-Pac Group of companies of which the controlling shareholder was David Ho. 74.Hence, simply based on the above, it can reasonably be inferred that prior to November 2004, David Ho beneficially owned and controlled APIHL and the 2nd Defendant and, via them as his nominees, the 6th Defendant, as well as D Ho Corporate Services Limited/Ferdinan. 75.There is also at least a prima facie case that he also controlled Universal Winner, the 5th Defendant and the 7th Defendant as his nominees directors or shareholders. Sham Sale of APIHL in November 2004 76.By an Instrument of Transfer dated 18 November 2004 signed by David Ho for himself and Joshua Chan as director on behalf of Bestwin, David Ho purportedly transferred 1 share of APIHL to Bestwin for HK$2 million. The HK$2 million was paid to David Ho by a HSBC cashier order dated 18 November 2004. 77.The first thing to note is that no Defendants have come forward to rebut the allegation that the sale was a sham. In particular, the Active Defendants take the position that it has nothing to do with them and do not even plead to it in their Amended Defence. 78.The Plaintiffs submit that, based on a number of objective facts, one can reasonably infer that the sale was a sham orchestrated by David Ho. Suffice it for this court to mention the following for the present purpose. 79.First, the available evidence suggests that the consideration of HK$2 million allegedly paid by Bestwin to David Ho was actually his own monies. 80.In his 10th affirmation filed in June 2011 in the Shearman Case, David Ho had exhibited a HSBC Cashier Order 849525 dated 18 November 2004 for HK$2 million (“Cashier’s Order”) and claimed it was the purchase price paid by Bestwin. 81.In Brian Chan’s letter dated 16 May 2012 to the Plaintiffs, he explained how the HK$2 million came about. In November 2004, David Ho told Brian Chan that he would like to entrust some monies to him to hold the same for him to pay for litigation expenses to be incurred by him or his companies in a number of on-going litigation. On 11 November 2004, David Ho arranged to pay HK$3 million into the bank account of Brian Chan’s own company Punto. Then 1 week later, on or about 18 November 2004, David Ho asked Brian Chan to issue 2 cashier’s orders in favour of him, 1 for HK$2 million and the other for HK$1 million. The HK$2 million cashier order was in fact the Cashier’s Order. 82.In other words, Bestwin did not pay anything to David Ho. Unless David Ho was making a gift to Bestwin, which narrative no one has ever put forward, the reasonable inference is that the so-called sale was not a genuine sale at all. 83.Second, the confusing accounts of the sale (i) as shown in the contemporaneous documents and (ii) as put forward by David Ho in prior sworn testimony. 84.The available contemporaneous documents ie the Instrument of Transfer and APIHL’s director’s resolution simply show the sale of 1 share of APIHL for HK$2 million from David Ho to Bestwin, a BVI company with an obscure background. There is no available evidence from David Ho (who would be the best person to explain the sale) as to why David Ho would choose to sell to Bestwin or why Bestwin would choose to buy from David Ho. 85.By contrast, from the transcript of his oral testimony on behalf of the 6th Defendant on 7 January 2011 in the Ing Case before Stone J, David Ho claimed that in 2004, he divested himself of the entire Asia-Pac business, which included APIHL (as David Ho was its sole shareholder and director) and the 6th Defendant (since 999,999 shares were held by APIHL) to a group of Chinese investors, one of them was a wealthy tycoon Mr Wang Hanguang. The name Bestwin was not mentioned at all. There is no explanation from David Ho for this anomaly. 86.Third, there was no discernible commercial reason for Bestwin to purchase David Ho’s interest in APIHL (and hence his indirect interest in the 6th Defendant) for HK$2 million in November 2004. There is no evidence that APIHL had any assets other than its 999,999 shares in the 6th Defendant. However, based on its audited accounts, the 6th Defendant was a loss-making company with no turnover for the years ending 31 December 2003 and 2004 and with net liabilities of around HK$5.7 million in both years. 87.Fourth, the involvement of Joshua Chan as director of Bestwin and represented it in the sale. 88.David Ho was the chairman of Beijing Jun Ya at the time of its establishment in 1998. David Ho and Joshua Chan were business associates- they were co-directors of Beijing Jun Ya at least in 2002 and 2003. 89.Beijing Jun Ya was a company closely associated with David Ho. On 12 March 1998, 9 companies, including the 11th Defendant, purchased a number of units in the Hua Yuan Apartments (subsequently called Lihua Gardens). The 9 sales contracts all showed David Ho was the legal representative of the 9 companies including the 11th Defendant. On 15 May 1998, Beijing Jun Ya was authorized by the 9 companies to manage the Hua Yuan Apartments and receive rentals on its behalf. The letter of authorization was on the 7th Defendant’s letterhead and signed by David Ho on behalf of the 9 companies. 90.It can thus be inferred from the above that Joshua Chan was associated with David Ho. This lends support to the proposition that Bestwin was not an independent buyer. 91.The oft-cited definition of a sham was given by Diplock LJ in Snook v London and West Riding Investments Ltd [1967] 2 QB 786 at 802:
92.In the Australian case of Raftland Pty Ltd v FCT (2008) 238 CLR 516 at [111], Kirby J cited the following passage in Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449 at 454:
93.At [112], Kirby J continued:
94.Testing the intentions of the parties to the sale ie David Ho and Bestwin as expressed in the contemporaneous documentation, against (i) their own testimony, which is not available in this trial, (ii) the available objective evidence relied upon by the Plaintiffs outlined above, and (iii) the absence of any credible explanation of a number of features of the sale e.g. how the HK$2 million was arrived at, why David Ho would choose to sell to Bestwin or why Bestwin would choose to buy from David Ho, this court is of the view that the sale in November 2014 was not what it purported to be ie a genuine arm’s length sale and thus was a sham. The logical and reasonable inference is that it was the means by which David Ho masked his beneficial interest in the 6th Defendant. 95.The consequence of a finding that a transaction is a sham is that it is null and void. As noted by Arden LJ in Hitch v Stone (Inspector of Taxes) [2001] EWCA Civ 63, [2001] STC 214, at para [87]:
96.Since this court has ruled the sale was null and void and of no effect, David Ho continued to own, legally and beneficially his 1 share in APIHL and beneficially, via APIHL, 999,999 shares in the 6th Defendant. This court further finds the sale was but an attempt on the part of David Ho to mask his beneficial interest in the 6th Defendant. 97.Lastly, given this court’s conclusion that the sale from David Ho to Bestwin was a sham, it is also prepared to infer that Joshua Chan, as director of Bestwin at the time, was a willing participant in the Sham Sale as a nominee of David Ho. This is yet another example of David Ho’s tendency to use nominees for his clandestine purposes. Post-Sham Sale—Transfer of 999,999 shares in the 6th Defendant from APIHL to the 5th Defendant in June 2007 98.After the Sham Sale in November 2004, David Ho continued to own and control APIHL and hence the 6th Defendant. 99.On 22 June 2007, APIHL transferred its 999,999 shares in the 6th Defendant to the 5th Defendant. 100.Given this court’s finding that David Ho continued to own and control APIHL after November 2004, in the absence of any evidence that his control of APIHL really had changed hands between 2004 and 2007, it would also follow that the transfer 999,999 shares in the 6th Defendant by APIHL was orchestrated by David Ho himself, albeit Bestwin was APIHL’s registered shareholder. 101.As for the 5th Defendant, from April 1998 to October 2001, David Ho was its sole director. On 3 April 2006, Peter Lo, a nominee of David Ho, became its sole director until he was replaced by Fong, another nominee of David Ho, in October 2006. Fong remained the sole director of the 5th Defendant until June 2008. Hence, at the time of the transfer in June 2007, Fong was the 5th Defendant’s sole director. 102.Further, at the time of the transfer in June 2007, Grand Asia Group Holdings Limited was the 5th Defendant’s sole shareholder. Fong was Grand Asia Group Holdings Limited’s sole director. According to the understanding of Jeff Li, another nominee of David Ho, David Ho was the owner of inter alia Grand Asia Group Holdings Limited. This court is prepared to infer that Grand Asia Group Holdings Limited was, by reason of the fact that its sole director was David Ho’s nominee, also a nominee of and accustomed to act in accordance with David Ho’s instructions. 103.Based on the above, this court is further prepared to infer that the 5th Defendant was David Ho’s nominee, by reason of the fact that its director and shareholder as at 22 June 2007 were all David Ho’s nominees. 104.To conclude, this court finds that the transfer was another transaction between connected parties ie APIHL and the 5th Defendant arranged by David Ho. It also follows that after June 2007, David Ho continued to beneficially own and control the 6th Defendant, via the 5th Defendant as his nominee in place of APIHL. Sham Re-capitalisation in December 2007 105.The material events relating to the purported re-capitalization of the 6th Defendant in December 2007 can be summarised as follows. 106.On 26 October 2007, the 1st to 8th defendants in the Shearman Case took out a security for costs application against the plaintiffs in that action. the 6th Defendant was the 1st plaintiff in the Shearman Case and the application against it was under s 357 of the then Companies Ordinance, Cap 32. 107.On 12 December 2007, the 6th Defendant purportedly entered into a preliminary agreement with the 3rd Defendant and the 11th Defendant. Under this preliminary agreement, the 3rd Defendant agreed to subscribe for HK$50 million worth of shares in the 6th Defendant to be paid for by transferring the entire issued share capital of the 11th Defendant. At the time, the 11th Defendant was said to be the owner of parts of Hua Yuan Apartments valued at RMB 53.23 million. The 3rd Defendant, for a period of 5 years, also guaranteed the 11th Defendant’s annual income from its Hua Yuan Apartments would not fall below HK$5 million. 108.On 12 December 2007, the 6th Defendant purportedly entered into another preliminary agreement with the 4th Defendant. Under this preliminary agreement, the 4th Defendant agreed to subscribe for HK$25 million worth of shares in the 6th Defendant payable by 5 instalments of HK$5 million each over 5 years. 109.Both preliminary agreements were signed by Fong, a nominee of David Ho, for and on behalf of D Ho Nominees Limited ie the 2nd Defendant as director of the 6th Defendant. 110.On 13 December 2007, 1 day after the 2 preliminary agreements were entered into, David Ho filed his 3rd affirmation in the Shearman Case on behalf of the 6th Defendant in opposition to the security for costs application. In it, David Ho set out the details of the 6th Defendant’s efforts in expanding its capital base by negotiating with a number of potential “new” investors including the signing of the 2 preliminary agreements in the purported Re-capitalization exercise. David Ho also claimed that the 6th Defendant, upon completion of the Re-capitalization exercise, would be a substantial company with a significant amount of paid up capital, holding marketable property of over HK$50 million and generating annual income of at least HK$10 million. 111.On 31 December 2007, formal Re-capitalisation Agreements (“Ontrade Sham Agreement” and “King Ocean Sham Agreement” respectively) were executed. The material terms of the Ontrade Sham Agreement were essentially the same as the preliminary agreement. The material terms of the King Ocean Sham Agreement were essentially the same as the preliminary agreement save that under Clause 11.1, the 8th Defendant provided a continuing guarantee to the 6th Defendant for the payment of all amounts and the performance of all obligations of King Ocean under it. 112.In January 2008, David Ho filed his 5th affirmation in the Shearman Case on behalf of the 6th Defendant, stating that the Re-capitalization exercise was completed and claimed that the 6th Defendant’s net assets as at 31 December 2007 based on its management accounts were worth HK$171 million. 113.The security for costs application in the Shearman Case was first granted by Master on 30 January 2008. On appeal to Poon J, as he then was, the order of security for costs against the 6th Defendant was overturned: Asia-Pac Infrastructure Development Limited & Ors v Shearman & Sterling (a firm) & Ors unrep, HCA 806 of 2006, 23 December 2008. The reasoning of Poon J can be found in the following passages of his Judgment:
114.In other words, Poon J was persuaded by David Ho’s evidence on the genuineness of the Re-capitalisation exercise and its effect on the financial health of the 6th Defendant. 115.On 6 December 2011, DHCJ Mayo handed down a decision granting the 1st to 8th defendants’ renewed security for costs application in the Shearman Case against the 6th Defendant: Asia-Pac Infrastructure Development Limited & Ors v Shearman & Sterling (A firm) & Ors unrep, HCA 806 of 2006, 6 December 2011. The reasoning of DHCJ Mayo was essentially this:
116.The Plaintiffs submit it can be inferred from a number of objective factors that the Re-capitalisation exercise was a sham arrangement orchestrated by David Ho. For the present purpose, this court shall only recite the following. 117.First, the timing of the Sham Re-capitalization exercise was such that it was likely orchestrated by David Ho in order to give the appearance that the 6th Defendant, supposedly a shell company, had substantial assets after the exercise in order to resist the applications for security for costs in the Shearman Case. This was in fact the conclusion reached by DHCJ Mayo at paragraph 66 of his Judgment cited above. 118.Second, the use by the 3rd Defendant of its sole share of the 11th Defendant as consideration for the Ontrade Sham Agreement. 119.The 11th Defendant was one of the 9 companies used by David Ho to acquire the Hua Yuan Apartments in March 1998. From 1998 to October 2001, David Ho was its sole director and hence controlled it. 120.The 3rd Defendant was the sole registered shareholder of the 11th Defendant until 31 December 2007 ie the date of the Ontrade Sham Agreement while its sole director at that time was Pei. There is no evidence from the Active Defendants as to the circumstances under which the 3rd Defendant became the sole registered shareholder of the 11th Defendant from September 2004 to 31 December 2007 or how Pei came to be its sole director as from 26 November 2007 and remained to be so as at 31 December 2007. 121.This is telling since the Active Defendants are expected to call witnesses to rebut the Plaintiffs’ case that (i) the 3rd Defendant was one of David Ho’s nominee companies within the Asia-Pac Group and (ii) Pei was David Ho’s personal nominee. Alternatively, the Active Defendants are expected to come up with an explanation for not doing so. They fail to do either and an adverse inference can be drawn against the Active Defendants that they simply cannot rebut the Plaintiffs’ case. 122.By contrast, David Ho’s ongoing control of the 11th Defendant after September 2004 is evidenced from what Brian Chan told the Plaintiffs ie on 24 November 2004, David Ho passed a cheque issued by the 11th Defendant for HK$3 million to Brian Chan’s company ie Punto. The cheque was signed by Jade Ho albeit she was then no longer a director of the 11th Defendant. Mr Brian Chan, in his letter dated 16 May 2012 to the Plaintiffs, also said as at 21 November 2004, the 11th Defendant was controlled by David Ho. 123.Given the above and in particular the Active Defendants’ silence, one can reasonably infer that the 3rd Defendant was acting in accordance with David Ho’s instructions as his nominee at the time of the Re-capitalisation exercise. 124.Third, the Sham Re-capitalisation Agreements were executed by David Ho’s nominees and/or persons associated with him. 125.The Ontrade Sham Agreement was executed by Fong on behalf of the 6th Defendant and Pei as director on behalf of the 3rd Defendant. The King Ocean Sham Agreement was executed by Fong on behalf of the 6th Defendant and Nina Jia on behalf of both the 4th Defendant as investor and the 8th Defendant as guarantor. 126.As far as Fong is concerned, this court has already found him to be David Ho’s nominee. 127.As far as Pei is concerned, this court is prepared to draw an adverse inference against the Active Defendants that they cannot rebut the Plaintiffs’ case that he was also David Ho’s nominee. 128.As for Nina Jia, according to the Plaintiffs, Nina Jia is 賈音 who, according to Jeff Li in his letter to the Plaintiffs’ solicitors dated 23 November 2012, was an administrative and sales manager of Grace Court in Beijing whose owner and building management company was 北京骏亚物业发展有限公司 ie Beijing Jun Ya. Importantly, according to Peter Lo in an email reply to the Plaintiffs’ solicitors dated 12 October 2012, she was a personal assistant to David Ho in Beijing. She was a director of the 4th and 8th Defendants in November 2007 but there is no evidence from the Active Defendants as to the circumstances under which she, from being a property sales manager and David Ho’s personal assistant to becoming a director of the 4th and 8th Defendants. 129.As what this court sees as a rather desperate submission, the Active Defendants raise some doubt as to whether Nina Jia is the same person as 賈音. Desperate because the names Nina Jia and Nina Jia Yin appeared in the corporate records of the 4th and the 8th Defendants as a director in November 2007 with an address in Beijing. It would be too much of a co-incidence that Nina Jia, Nina Jia Yin and 賈音 all resided in Beijing at the time but were different persons. 130.While she is not pleaded as David Ho’s nominee, it seems to this court that she can properly regarded as a person closely associated with David Ho. 131.Last but not least, there was a distinct lack of commercial sense for the 3rd and 4th Defendants to invest in the 6th Defendant in November 2007. 132.According to the audited accounts of the 6th Defendant, it incurred a net loss of around HK$230,000 for the year ended 31 December 2006 and a net loss of HK$2.69 million for the year ended 31 December 2007. It had liabilities of HK$3,953,905 while its only assets were cash and bank balance of HK$11,993 as at 31 December 2006. Note 12 of the 2006 audited accounts referred to the 6th Defendant being involved in litigation but the amount of legal costs and claims could not be determined at that stage. There was also no provision for contingent assets. While there was provision for contingent assets in note 16 of the 2007 accounts, it was confined to HK$5 million paid into court as fortification of an injunction obtained in a legal action against a former director and certain third parties. There was no provision for contingent assets based on any potential judgment or settlement sums in favour of the 6th Defendant in the litigation in which it was involved. 133.The Plaintiffs submit that it made no commercial sense for the 3rd or 4th Defendant to make such a substantial investment in the 6th Defendant in the form of (i) the entire shareholding in the 11th Defendant whose assets were said to be worth RMB 53.23 million and (ii) cash consideration of HK$25 million, in exchange for what was in effect a shell company. This is the point made by DHCJ Mayo at paragraph 46 of his Judgment cited above. 134.The Active Defendants disagree. Their pleaded case is that the 3rd and 4th Defendants agreed to invest in the 6th Defendant on the basis that its main assets were the Ing Case and the Shearman Case. Their evidence, in the form of the witness statement of Yu Yang, is that it was Yu Yang and his younger sister who decided to invest and fund inter alia the 2 cases after discussion at the end of 2007. He said David Ho was very optimistic and confident about the Ing Case while the Shearman Case had a great prospect of success. 135.By way of observation, how Yu Yang and his sister’s investment in the 6th Defendant became the 3rd and 4th Defendants’ investment is wholly unclear from his statement, unless the 3rd and 4th Defendants were beneficially owned and controlled by Yu Yang. But there is no evidence to that effect save for a bare assertion in his statement that he was and is the indirect shareholder or beneficiary of inter alia the 2nd to 6th Defendants. 136.The credibility of the Active Defendants’ explanation must be examined in its proper context. 137.The Ing Case was commenced by the 6th Defendant in October 1999. By December 2007, more than 8 years had passed and there was still no end in sight. The Shearman Case was only commenced by the 6th Defendant in April 2006 and it was still at a relatively early stage by December 2007. Indeed, the Shearman Case is still on-going. There was no objective evidence as to the prospect of success of the 2 cases. All that Yu Yang claimed he had was David Ho’s subjective assessment. In effect, the Active Defendants are saying the 3rd and 4th Defendants, or rather Yu Yang, together with his sister, agreed to make such a substantial investment in the 6th Defendant in the hope that what David Ho said would eventually turn out to be right. 138.As a matter of inherent probabilities, this court does not find such an explanation credible. 139.To start with, the explanation came in the form of bare assertions in Yu Yang’s and Liu Shu’s witness statements. Nevertheless, Yu Yang refused to come forward to testify in support of the explanation despite having made a witness statement on their behalf. The same can be said of Liu Shu. Yu Yang’s sister, on the other hand, was not even prepared to make a witness statement at all. Ms Lam SC submits and this court agrees that their evidence would be highly contested and there are very pertinent and legitimate questions which she would be entitled to ask if given the opportunity to cross-examine them. 140.Further, there is no contemporaneous documentation setting out the actual terms or even the gist of the agreement between Yu Yang, his sister and David Ho to invest in the 6th Defendant’s litigation projects. 141.Lastly, according to Yu Yang’s and Liu Shu’s witness statements, whatever meagre returns were obtained from the litigation projects managed by David Ho, they all went to pay for the daily expenses of David Ho, his ex-wife and children in Hong Kong, repayment of David Ho’s UK family’s investment capital or were “reinvested” in the ongoing litigation projects. No returns have been shown to have been made to Yu Yang or his sister. 142.In the circumstances, this court must reject the Active Defendants’ explanation of how and why the Re-capitalisation exercise came about. 143.To conclude, this court accepts the Plaintiffs’ submission that the Re-capitalisation exercise was a sham arrangement orchestrated by David Ho principally to resist the applications for security for costs in the Shearman Case and on a more general level to continue masking David Ho’s beneficial interest in the 6th Defendant, but definitely not as a genuine investment by the 3rd or 4th Defendant (or Yu Yang and his sister) in the 6th Defendant as contended by the Active Defendants. 144.The Active Defendants argue that it is not enough for only David Ho to intend the Re-capitalisation agreements to be a sham. For an agreement to be a “sham”, there must be such a common intention by all principal parties to the agreement and there is no evidence that the parties to the preliminary agreements or the Re-capitalisation Agreements—ie the 3rd, 4th, 6th and 8th Defendants—intended these to be shams as well, citing Artech Development Ltd v Posismo Ltd [2018] HKCFI 344. 145.In Artech Development Ltd v Posismo Ltd [2018] HKCFI 344, this court observed:
146.The Active Defendants’ submission that there must be a common intention is trite and is correct as far as it goes. But what is required to establish common intention? 147.In A v A [2007] 2 FLR 467 at [50] and [52], Munby J observed:
148.In these circumstances, it can reasonably be inferred that the 3rd, 4th, 6th and 8th Defendants did not intend the Re-capitalisation exercise to be a genuine investment in the 6th Defendant. If so, their intention [43]was likely to be to assist David Ho to achieve his purposes of resisting the applications for security for costs in the Shearman Case and continuing to mask his beneficial interest in the 6th Defendant. 149.The Active Defendants further submit that even Ip himself, during cross-examination on Day 3, accepted that the Re-Capitalisation exercise was not a sham since he agreed with the contents of paragraphs 11-12 of David Ho’s 3rd affirmation in the Shearman Case. In particular, paragraph 12 of that affirmation stated that: “Upon completion of the recapitalization exercise described above, the 1st Plaintiff [ie the 6th Defendant] will be a substantial company with a significant amount of paid up capital, holding marketable property with a value over HK$50 million and generating an annual income of at least HK$10 million.” 150.As this court sees it, whether the Re-Capitalisation exercise is a sham or not is a question of mixed fact and law to be determined by this court, rather than by a witness who has no personal knowledge of the material factual events and whose opinion on how the law should be applied to the facts is irrelevant. While Ip’s answer appears to undermine the Plaintiffs’ case of Sham Re-Capitalisation, it is far from sufficient to defeat it. 151.To conclude, this court is of the view that the Re-capitalisation exercise in December 2007 was not what it appeared to be and hence a sham and this court shall so find. This court further finds the 3rd, 4th, 6th and 8th Defendants were willing participants of the Sham Re-capitalisation exercise acting in accordance with David Ho’s instructions and as his nominees. 152.The consequence of these findings is that the entire exercise including the preliminary agreements and the Re-capitalisation Agreements were null and void and of no effect, as correctly submitted by Mr Kwok in his Closing Submissions. 153.This means the allotment of the 6th Defendant’s shares to the 3rd and the 4th Defendants was null and void and that the 2nd and 5th Defendants remained the only shareholders of the 6th Defendant after the whole exercise. Of course, it also means that the transfer of the 11th Defendant’s share from the 3rd Defendant to the 6th Defendant was also null and void and the 3rd Defendant remained the registered shareholder of the 11th Defendant.[44] Summary of David Ho’s beneficial interest in and control of the 2nd, 5th and 6th Defendants
154.This court has already found that prior to November 2004, David Ho beneficially owned and controlled the 2nd Defendant as his nominee. 155.As at 27 June 2005, the 2nd Defendant’s registered shareholders were David Ho and his company D Ho Corporate Services Limited (later Ferdinan). 156.In July 2005, David Ho’s 1 share was transferred to Bright Spirit International Limited which was shown in the 2006 annual return. In June 2007, the 1 share was transferred to Grand Asia Group Holdings Limited and then in February 2008 it was transferred to Fong. Lastly, the 1 share was transferred from Fong to Yu Yang in June 2008. 157.No legitimate purpose can be discerned from the available evidence for such frequent transfers of David Ho’s 1 share in the 2nd Defendant from at least 27 June 2005 up to February 2008 when the share ended up with Fong, his nominee and none have been put forward by the Active Defendant. In these circumstances, one can but infer that all these transfers were orchestrated by David Ho for the purpose of masking his beneficial ownership and control of the 2nd Defendant. 158.Regarding the transfer from Fong to Yu Yang in June 2008, Yu Yang would be the best person to explain the reason for the transfer of the share to him yet his witness statement is silent on this. He simply made a bare assertion that he is the direct, indirect shareholder or beneficiary of the 2nd Defendant. 159.Further, Yu Yang is pleaded as a nominee of David Ho. As he has not come forward to testify on behalf of the Active Defendants, an adverse inference can and should be drawn against the Active Defendants, in the absence of an explanation for not calling him ie (i) there was no legitimate commercial purpose for the transfer of David Ho’s 1 share from Fong to him in June 2008 and (ii) that he was just a nominee shareholder of David Ho. 160.In these circumstances, this court finds that it was David Ho who orchestrated all the transfers mentioned above and that Yu Yang was and is his nominee shareholder of the 2nd Defendant. 161.As for the other shareholder of the 2nd Defendant ie D Ho Corporate Services Limited/Ferdinan, according to Brian Chan, it was set up by David Ho. The same should be self-evident from its original name. D Ho Corporate Services Limited/Ferdinan has never ceased to hold 1 share in the 2nd Defendant from 27 June 2005 onwards. 162.If one looks deeper into D Ho Corporate Services Limited/Ferdinan’s corporate information, one can find the same pattern of frequent changes of its registered shareholders from June 2005 onwards resulting in Yu Yang being a shareholder of Ferdinan as of June 2008 up to June 2012: see corporate information on Ferdinan above. 163.In these circumstances and for the similar reasons stated above, one can but infer that all these transfers were orchestrated by David Ho for the purpose of masking his beneficial ownership of Ferdinan. It can also be reasonably inferred that the transferees up to and including Yu Yang were all his nominee shareholders of Ferdinan. This again reinforces this court’s finding that Yu Yang was and is but another nominee shareholder of David Ho. 164.The conclusion that can be drawn from the above is this. Notwithstanding the fact that Yu Yang and Ferdinan since 27 June 2012 have been and are the current registered shareholders of the 2nd Defendant, it was and still is David Ho who beneficially owns and controls the 2nd Defendant as his nominee.
165.In the Section “David Ho’s beneficial ownership and control of the 6th Defendant & other related companies from 1996 to 2004”, this court has already found a prima facie case that prior to November 2004, David Ho controlled the 5th Defendant as his nominee. 166.In the Section “Post-Sham Sale—Transfer of 999,999 shares in the 6th Defendant from APIHL to the 5th Defendant in June 2007”, this court is prepared to infer that, as of June 2007, the 5th Defendant was under David Ho’s control as his nominee and accustomed to act in accordance with his instructions. 167.From its corporate information, in June 2007, the 5th Defendant’s registered shareholder was Grand Asia Group Holdings Limited, held by this court to be a nominee of David Ho. Thereafter, the 1 issued share of the 5th Defendant was held by Jade Ho on trust for Yu Yang and then held by Yu Yang himself. As at 30 June 2010, Yu Yang was the 5th Defendant’s sole registered shareholder. As at 3 February 2012, the 5th Defendant’s director was Liu Shu. 168.This court has already found Yu Yang to be a nominee of David Ho to hold the shares of the 2nd Defendant and Ferdinan. As this court emphasised before, his failure to come forward to rebut the allegation that he is David Ho’s nominee is mostly telling and, in the present context, an adverse inference can and should be drawn against the Active Defendants ie Yu Yang held and holds the 1 share in the 5th Defendant as David Ho’s nominee. 169.As far as Liu Shu is concerned, since she was the sole director of the 5th Defendant in February 2012, she would be in a position to rebut the Plaintiffs’ pleaded case that the 5th Defendant was part of of the Asia-Pac Group companies set up by David Ho and acted as his nominee. The fact that the Active Defendants have failed to call her as a witness is also ample ground for drawing an adverse inference against them ie the 5th Defendant was and still is David Ho’s nominee and under his control.[45] 170.To conclude, notwithstanding the fact that Yu Yang was and is the 5th Defendant’s sole shareholder, it was and still is David Ho who beneficially owns and controls it.
171.This court has already found that (i) prior to November 2004, David Ho beneficially owned and controlled APIHL and the 2nd Defendant and, via them as his nominees, the 6th Defendant, (ii) the sale of APIHL by David Ho to Bestwin in November 2004 was a sham so that David Ho continued to beneficially own his 1 share in APIHL and, via APIHL, 999,999 shares in the 6th Defendant, and (iii) after June 2007, David Ho continued to beneficially own and control the 6th Defendant, via the 5th Defendant as his nominee in place of APIHL. 172.Since this court has found the Re-Capitalisation exercise in December 2007 to be a sham, the allotment of the 6th Defendant’s shares to the 3rd and 4th Defendants was null and void and the 2nd and 5th Defendants remained the only shareholders of the 6th Defendant after 31 December 2007. There has been no change to that since. 173.Given this court’s finding above that the 2nd and 5th Defendants were beneficially owned by David Ho and under his control as his nominees, it is reasonable to infer that that they also held and hold the 6th Defendant’s shares as nominees of David Ho. 174.Further, all the directors of the 6th Defendant from January 2004 to January 2012 were either David Ho or his nominees as held by this court viz Universal Winner, Jeff Li, Peter Lo, D Ho Corporate Services Limited/Ferdinan, D Ho Nominees Limited/Gladius.[46] In these circumstances, this court has no difficulty in finding that the 6th Defendant was and still is under David Ho’s control as his nominee. 175.To sum up the matter, this court finds (i) both the 2nd and 5th Defendants were and are beneficially owned and controlled by David Ho as his nominees in holding the shares of the 6th Defendant, and (ii) the 6th Defendant was and still is under David Ho’s control as his nominee. Summary of David Ho’s beneficial interest in and control of the 3rd and 11th Defendants, as well as the 9th Defendant
176.The case of the 3rd and the 11th Defendants is relatively straightforward. 177.In the Section “Sham Re-Capitalisation in December 2007”, this court has already found that the 3rd Defendant was a willing participant in the Sham Re-Capitalisation acting in accordance with David Ho’s instructions and as his nominee. 178.From the corporate information of the 3rd Defendant, Yu Yang was its sole registered shareholder and director as of 20 May 2008. Yu Yang, already held by this court to be David Ho’s nominee, remains its sole registered shareholder as of now. If so, this court has no difficulty finding that Yu Yang was and is holding its share in the 3rd Defendant as David Ho’s nominee. 179.Putting the two and two together, this court is of the view that the 3rd Defendant was and still is beneficially owned and controlled by David Ho as his nominee and shall so find. 180.As for the 11th Defendant, it was one of the 9 companies used by David Ho to acquire the Hua Yuan Apartments in March 1998. From 1998 to October 2001, David Ho was its sole director and hence controlled it. 181.The 3rd Defendant became the sole registered shareholder of the 11th Defendant from September 2004 to 31 December 2007 when the Ontrade Sham Agreement was executed. As stated earlier, there is no evidence from the Active Defendants as to the circumstances under which the share of the 11th Defendant was registered in the 3rd Defendant’s name. Given this court’s ruling that the 3rd Defendant was and still is beneficially owned and controlled by David Ho as his nominee, it would follow that the 11th Defendant was beneficially owned and controlled by David Ho via the 3rd Defendant as his nominee. 182.Importantly, since this court has found the transfer of the 11th Defendant’s its 1 share from the 3rd Defendant to the 6th Defendant in December 2007 to be null and void, the 3rd Defendant remained and remains the sole shareholder of the 11th Defendant up to now. It follows that the beneficial ownership and control of the 11th Defendant remains with David Ho via the 3rd Defendant as his nominee. 183.But for the fact that the Plaintiffs have chosen to make a claim only against the 6th Defendant for the 1 share in the 11th Defendant, this court would have no difficulty in granting an order against the 3rd Defendant to transfer its share in the 11th Defendant to the Plaintiffs. However, since the Plaintiffs have failed to pray for such an order against the 3rd Defendant, it would be unfair to the 3rd Defendant and inappropriate for this court to grant such an order in favour of the Plaintiffs.
184.From the corporate information of the 9th Defendant, at least since 8 February 2006, its registered shareholders and directors have been David Ho’s nominees as found by this court viz Fong, Peter Lo, D Ho Nominees Limited/Gladius and D Ho Corporate Services Limited/Ferdinan. Further, by their own admissions, Fong and Peter Lo accepted they had been instructed to act as David Ho’s nominee shareholders and directors of the 9th Defendant and disclaimed any beneficial interest in the 9th Defendant’s shares. 185.The current position in respect of the 9th Defendant is that the 2nd Defendant and Ferdinan each holds 1 share in it. This court has already found above that David Ho was and still is the one who beneficially owns and controls the 2nd Defendant and Ferdinan. In these circumstances, this court has no difficulty in finding that the 2nd Defendant was and is holding its 1 share in the 9th Defendant as David Ho’s nominee. Since Ferdinan is not a Defendant in this Action, this court shall refrain from making a finding against it in relation to its 1 share in the 9th Defendant, although this court would have done so had the Plaintiffs included Ferdinan as a Defendant. The 10th Defendant 186.In Cheung Man Wai v Director of Social Welfare [2000] 3 HKLRD 255 at 259I-260A, Godfrey V-P (Ribeiro JA, as he then was agreeing) stated:
187.Since the 10th Defendant has been struck off the BVI Register of Companies, a fact accepted by both parties, it is difficult to see what useful purpose can be served by granting the declaration sought by the Plaintiffs and none has been put forward by Ms Lam SC in her Closing Submissions. It is clearly pointless in making an order for transfer of the 10th Defendant’s share to the Plaintiffs. In these circumstances, it is equally futile to make any findings in relation to the beneficial ownership or control of the 10th Defendant. Disposition and costs 188.In the premises, this court hereby grants the following relief to the Plaintiffs:
189.As far as costs are concerned, in the absence of agreement between the parties within 14 days, the parties are directed to obtain a hearing date for submissions on costs. 190.Liberty to Apply. Postscript 191.For completeness, the Plaintiffs seek leave from the Court to amend the name of the 6th Defendant under the Writ of Summons, the Re-Amended Statement of Claim and the Reply by removing “(HK)” at the end of its name. As there is no dispute between the parties as to the identity of the company being referred to, leave is hereby granted.
Ms Rachel Lam, SC and Mr Joseph Wong, instructed by Lee, Wong & Lam, for the Plaintiffs Mr Eugene Kwok and Ms Karen Chan, instructed by Oldham, Li & Nie, for the 2nd to 5th and 8th to 9th Defendants The 1st, 10th and 11th Defendants were not represented and did not appear Attendance of the Joint and Several Liquidators of the 6th Defendant was excused
[1] An Index of this Judgment is attached hereto as Annex 1. [2] The year of incorporation of inter alia the 6th Defendant in Hong Kong. [3] On day 2 of the trial, this court gave leave to the Plaintiffs to re-amend the Amended Statement of Claim, mostly but not exclusively the prayer for relief. [4] Which held 999,999 shares of the 6th Defendant. [5] The 6th Defendant was the plaintiff. [6] The 6th Defendant was the 1st plaintiff. [7] Information taken from the companies’ Annual Returns and search records, unless otherwise stated. [8] A Hong Kong company. Judging from its name, it was obviously a company set up by David Ho as his nominee company, as confirmed by Brian Chan, his nominee. [9] According to the 2002 to 2004 annual returns, there has been no change in its shareholders since 1997. According to the 2005 annual return, its 2 shareholders were David Ho and D Ho Corporate Services Limited but there was no indication of any transfer of shares to them between June 2004 and June 2005. It is likely that the two have been shareholders since at least June 1997. [10] Transferred from David Ho on 14 July 2005. [11] Transferred from Bright Spirit International Limited on 22 June 2007. [12] Transferred from Grand Asia Group Holdings Limited to Fong on 20 February 2008 and from Fong to Yu Yang on 10 June 2008. [13] A Hong Kong company. Judging from its name, it was obviously set up by David Ho as his service company, as confirmed by Brian Chan, his nominee. [14] According to the 2002 to 2004 annual returns, there has been no change in its shareholders since 1997. According to the 2005 annual return, there was no indication of any transfer of shares to David Ho and Bright Spirit International Limited between June 2004 and June 2005. It is thus likely that David Ho was a shareholder since at least June 1997. [15] Transferred from David Ho on 14 July 2005. Later changed its name to Venation Limited. [16] Transferred from Bright Spirit International Limited on 22 June 2007. [17] Transferred from Grand Asia Group Holdings Limited to Fong on 20 February 2008. Fong transferred its 1 share to Yu Yang on 10 June 2008. [18] A BVI company. [19] A BVI company. [20] A BVI company. [21] A BVI company. [22] Later changed to Asia-Pac Group Investments Holdings Limited. [23] A Hong Kong company incorporated by David Ho in 1996: see 2nd affirmation of David Ho in New World Appeal case. [24] A BVI company. [25] Transferred from APIHL on 22 June 2007. [26] A BVI company. [27] Later changed its name to Grand Asia Group Holdings Limited. [28] A Hong Kong company. [29] Both BVI companies. [30] A BVI company. [31] A BVI company. [32] A BVI company. [33] A BVI company. [34] As a result of the Sham Sale, David Ho’s 1 share in APIHL was transferred to Bestwin. [35] This is one of the reasons why the Plaintiffs submit the sale was a sham - David Ho, instead of Bestwin, paid for the purchase of APIHL. [36] A former director of Grand Asia Group Holdings Limited, the 4th, 6th and 10th Defendants. [37] A former director of Grand Asia Group Holdings Limited, the 6th Defendant as well as the 4th, 5th, 8th and 9th Defendants. [38] By not pleading to paragraphs 12 to 18 of the Re-Amended Statement of Claim. See paragraph 13 of their Amended Defence. [39] Ibid. [40] Yu Yang’s and Liu Shu’s witness statements were filed on behalf of the Active Defendants. Hou’s statement was filed on behalf of the 6th Defendant. [41] Which only concerns claims for ancillary financial relief in matrimonial proceedings. [42] In Re Unisoft Group Ltd (No.2) (1993) BCLC 532 at 534. [43] Whether in the traditional sense or in the sense of reckless indifference. [44] There is no counterclaim by the 4th Defendant for the return of whatever consideration it purported to have paid the 6th Defendant in the event the Re-capitalisation Agreements were held to be null and void and of no effect. [45] While it has not been pleaded that Liu Shu was David Ho’s nominee, on the evidence, this court finds Liu Shu to be a person closely associated with David Ho by reason of her associated with Yu Yang. [46] Except Liu Shu who was only 1 out of 3 directors as of 18 January 2012. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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