Capital Century Textile Co Ltd v. Li Dianxiao and Another
Read the full judgment text of HCA 263/2012 on BabelCite. This High Court CFI judgment was delivered on 17 September 2021.
1. In this judgment, unless otherwise stated, all references to numbered pages are to pages of the trial bundles and all monetary figures are denominated in Hong Kong dollars.
Cited by 6 cases · Cites 3 cases
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HCA 263/2012 [2021] HKCFI 2216 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 263 OF 2012 ______________________
______________________ Before: Hon Lisa Wong J in Court Date of Hearing: 8, 9, 10, 11 and 28 May 2018 Date of Judgment: 17 September 2021 ________________ J U D G M E N T ________________ 1.In this judgment, unless otherwise stated, all references to numbered pages are to pages of the trial bundles and all monetary figures are denominated in Hong Kong dollars. PLAINTIFF’S CLAIM 2.In this action, the plaintiff, Capital Century Textile Company Limited (“CCT”) claims:
ISSUES 3.The issues raised by the parties’ pleadings are numerous. They can be summarised as follows: As between CCT and Mr Li:
As between CCT and the defendants:
4.Further, arising from the conduct of Mr Cong’s defence at the trial, Counsel for CCT, Mr KM Chong (with him, Mr Alvin Chong) takes a point of procedure.
5.I shall now deal with Mr Chong’s procedural complaint. In my view, Mr Tsang is legitimately concerned with those aspects of Mr Li’s defence that may impact upon whether Mr Cong can keep the Tanner Garden Flat. Of course, and I am very mindful that, counsel may not cross-examine without a proper foundation built on admissible, material and credible evidence already before the court. I shall disregard any question asked against such principle. However, where the evidence before the court sufficiently throws a favourable light on an aspect of Mr Li’s defence that, if proved, would assist Mr Cong’s defence, I do not see why counsel for Mr Cong is prevented from putting the matter to CCT’s witness(es) concerned with such matter. Indeed, he should do so out of fairness to CCT if he intends to make submissions on the point against CCT. FINDINGS OF MATERIAL FACTS 6.[15] to [139] below set out my findings of essential facts, in the chronological order in which events occurred. Key findings are highlighted by underlining for easy reference. Some of these findings will directly answer some of the questions listed in [3] above. Others will lay the foundation for arriving at answers to the remaining questions. 7.Given the somewhat disorganised state of the trial bundles, in addition to identifying the evidence on which I base my findings, in the case of documentary evidence, I will for ease of reference also state where it can be found in the trial bundles. 8.Before I go into the facts, it will be seen that they are partly derived from records, the authenticity and materiality of which is undisputed or indisputable save for the few documents disclosed and relied on by Mr Cong. 9.They are further partly based on the evidence of CCT’s witnesses namely, Ms Lai, Zhang Jiu Chang (張九常) (“Mr Zhang”), Zhong Qun (鍾群) (“Mr Zhong”) and Xie Gui Ru (謝桂茹) (“Ms Xie”)[6]. Unless otherwise stated:
10.In contrast, the same cannot be said of the defendants’ evidence. First of all, as stated above, Mr Li did not participate at the trial to defend himself. Nor has he given discovery or made witness statement. Nevertheless, he has filed and served an amended defence, which I cannot ignore. For the record, I have used my best endeavours, but without much success, in searching through the trial bundles for evidence that might lend or tend to lend credence to the averments in Mr Li’s amended defence. 11.Turning to Mr Cong, he is concerned only with the Tanner Garden Flat. Mr Cong was still a student[8] with no independent means back in July 2007 when he purportedly purchased the Tanner Garden Flat from Mr Li at the price of $4,800,000 without requiring a mortgage loan. In support of his defence to CCT’s claim to such property, apart from himself, Mr Cong has called his mother, Cong Tao (叢濤) (“Ms Cong”), who was, on Mr Cong’s and her evidence, the person handling the purchase of the Tanner Garden Flat on Mr Cong’s behalf. Ms Cong had admittedly been in an intimate relationship with Mr Li. I find it necessary to approach their testimonies with caution[9] for the following reasons:
12.My findings below are also partly founded upon the summary of the factual evidence before the Second Intermediate People’s Court of the Beijing Municipality (北京市第二中級人民法院) (“PRC Court”) at the criminal trial of Mr Li, as recorded in the PRC Court’s criminal judgment (刑事判決書) dated 19 September 2010 (“PRC Judgment”)[10]. 13.In particular, I have paid regard, and given weight, to the testimonies of (1) the following personnel of the Beijing Company at the material times: 楊書武 (general manager), 吳大蚌 (party secretary), 印培良 (deputy manager), Mr Zhang (salesman), Mr Zhong (salesman) and 郭世明 (deputy general manager and party committee member); and (2) Kingpower’s former general manager 何岱as to:
I have no reason to question the accuracy of the PRC Court’s summary of the abovementioned witnesses’ testimonies. Nor do I see any cause to doubt their credibility or reliability. 14.For the avoidance of doubt, my reference to and reliance on the PRC Judgment is limited as aforesaid. I accord no weight to the PRC Court’s findings or conclusions. I come to my own on the evidence before me. Beijing Company 15.The Beijing Company was a state-owned enterprise, more specifically, a company owned by the whole people (全民所有制企業). Co-operation between Beijing Company & Kingpower 16.Kingpower was incorporated on 1 August 1986[11]. 17.In about 1988, the Beijing Company commenced business in Hong Kong through co-operation with Kingpower. In gist, the Beijing Company provided Kingpower with knitwear export quotas and shared the profits generated to Kingpower through the use or sale of such quotas[12]. 18.Kingpower functioned as the Beijing Company’s Hong Kong branch office/window company. In support, I accept the following evidence:
19.At some stage, Mr Li, then the deputy general manager (副總經理) of the Beijing Company[13], together with Mr Zhang and Mr Zhong, were posted by the Beijing Company from Beijing to Hong Kong to work in Kingpower[14]. As the most senior staff of the Beijing Company in Hong Kong, Mr Li was responsible for reporting to, and obtaining instructions from, the general manager of the Beijing Company who was楊書武 at the time[15]. Acquisition of Eternal Building Flats in Kingpower’s name 20.In the course of the co-operation between the Beijing Company and Kingpower, Eternal Building Flat A and Eternal Building Flat B were conveyed into the name of Kingpower by assignments dated 2 December 1989 at the respective price of $984,126 and $985,986 (see land search records at pages 1174 and 1182). The purchases were financed to the extent of $1,770,00 by an instalment loan from The Ka Wah Bank Ltd (“KWB”)[16]. 21.Kingpower acquired the Eternal Building Flats for the benefit of the Beijing Company. According to paragraph 49 of Ms Lai’s witness statement, the Eternal Building Flats were parts of the Beijing Company’s profits from its co-operation with Kingpower. I find such statement credible.
Termination of co-operation between the Beijing Company & Kingpower & transfer of Eternal Building Flats by Kingpower into Mr Li’s name 22.In about the late 1980’s or early 1990’s, the co-operation between the Beijing Company and Kingpower ceased. 23.As part of the arrangements made upon the termination of the co-operation between Kingpower and the Beijing Company, Kingpower transferred the Eternal Building Flats into Mr Li’s name by assignments dated 6 September 1990 (pages 1830-1834 & 1835-1840) for stated considerations of $984,126 and $985,986. Such stated considerations were notably the same as the purchase prices that had been paid for these units. They were not actually paid[20]. 24.Mr Li held the Eternal Building Flats on trust for CCT, the Beijing Company’s new branch office/window company in Hong Kong.
Setting up of CCT as the Beijing Company’s new HK office/company 25.In place of Kingpower, CCT was formed on 5 October 1990[24] upon Mr Li’s proposal to the Beijing Company and the approval of such proposal by the Beijing Company[25]. Ms Lai handled all the formalities of the setting up of CCT[26]. 26.CCT took over the role of the Beijing Company’s branch office/window company in Hong Kong. In support, in addition to paragraph 7 of Ms Xie’s witness statement, paragraph 6 of Mr Zhong’s witness statement, paragraph 8 of Mr Zhang’s witness statement, paragraphs 6 and 19 of Ms Lai’s witness statement and the testimonies of楊書武, 吳大蚌, 何岱, 郭世明, 胡明智, 趙俊波and 宋紅英as recorded in the PRC Judgment (pages 414, 416, 417, 420 and 422), to which I accord weight, I find the following extracts (with emphasis added) forceful:
CCT shareholding & directorship before 2001 Agreement 27.At its inception, only 2 subscribers’ shares of $1 each in CCT were issued and allotted, one to Mr Li and one to a Man Ping (萬平) (“Mr Man”), who also formed the board of directors of CCT[27]. Neither Mr Li nor Mr Man paid for their respective share in, or provided any working capital to, CCT[28]. Mr Man was made a shareholder and director of CCT to comply with the then legal requirement for a company to have at least 2 shareholders and 2 directors. He was not actually involved in CCT’s operations[29]. 28.On 24 January 1991, at the direction of the Beijing Company[30], Mr Man transferred his 1 share in CCT to Mr Zhong[31] who also replaced Mr Man as a director[32]. No consideration moved from Mr Zhong to Mr Man for the transfer[33]. 29.On 25 June 1994, at the direction of the Beijing Company and upon Mr Zhong’s transfer back to Beijing[34], Mr Zhong transferred his 1 share to Ms Lai[35] who also took Mr Zhong’s place on CCT’s board of directors[36]. As in the case of the transfer from Mr Man to Mr Zhong, no consideration moved from Ms Lai to Mr Zhong[37]. 30.Then, within the year ended 5 October 1995, CCT issued 19,998 more shares of $1 each which were allotted to Mr Li as to 18,998 shares and Ms Lai as to 1,000 shares so that Mr Li and Ms Lai respectively held 18,999 shares and 1,001 shares in CCT[38]. Beneficial ownership of Mr Li’s CCT Shares before 2001 Agreement 31.Leaving aside for the time being the 2001 Agreement and its proper construction (which I will consider in [91]-[94] below), I have formed the opinion that Mr Li held all the CCT Shares registered under his name on trust for the benefit of the Beijing Company. And I reject the claim in paragraph 37 of Mr Li’s amended defence that he was the beneficial owner of all CCT Shares, not even those registered under his name, insofar as the period before the 2001 Agreement is concerned.
32.While on the relationship between CCT, the Beijing Company and Mr Li, I have not overlooked the statement made by Ms Lai at an interview with the representative(s) of the Second Branch of the People’s Procuratorate of the Beijing Municipality (“PRC Procuratorate”) on 7 May 2009[39] that Mr Li had told her that CCT could represent to third parties that it was the Beijing Company’s window company in Hong Kong but it was in fact his own company. This is a hearsay statement of an allegation made by Mr Li. While I should take note that Mr Li had allegedly made such a claim, I must also weigh it against the material listed in the preceding paragraph. Beneficial ownership of Ms Lai’s 5% Shares 33.As for Ms Lai’s position, the allotment to Ms Lai of 1,000 new shares, which accounted for 5% of the shareholding, in CCT (“Ms Lai’s 5% Shares”), in 1995 was effected pursuant to an agreement made between Mr Li for and on behalf of CCT and Ms Lai back on 1 April 1993 (page 1739) (“1993 Agreement”). The 1993 Agreement stipulates as follows:
34.Under the 1993 Agreement:
35.In view of the 1993 Agreement, I reject the averment in paragraph 37(2) of Mr Li’s amended defence that Ms Lai held the 1,001 CCT Shares registered in her name on trust for him. Ms Lai was already the holder of 1 share in CCT, thereby satisfying the legal requirement for at least 2 shareholders. Mr Li has not explained the purpose served by allotting 1,000 more shares to Ms Lai in 1995 for her to hold on trust for him or the reason why he could not hold those shares himself. In the circumstance, Ms Lai’s 5% Shares are clearly held by Ms Lai in her own right for as long as she remains in the employ of CCT. Ms Lai only asserts beneficial ownership to Ms Lai’s 5% Shares (including the 1 share then held by Ms SW Lai). She acknowledges that she held 95% of the CCT Shares on trust for the Beijing Company[40]. I shall assess the validity of such position when I discuss the 2001 Agreement and its meaning and effect in [91]-[94] below. Mr Li’s position in CCT other than as a shareholder & director 36.Mr Li, together with Mr Zhang and Mr Zhong were again stationed by the Beijing Company in Hong Kong, this time, to work in CCT[41]. 37.Further, Mr Li was appointed the general manager of CCT[42]. Throughout the period from 1990/1991 to 2005/2006, CCT submitted to the Inland Revenue Department (“IRD”) employer’s returns in respect of the remuneration paid by CCT to Mr Li as its employee for the purpose of computing the salaries tax payable by Mr Li[43]. 38.As the most senior employee of the Beijing Company in Hong Kong, Mr Li continued to (1) report to the general manager of the Beijing Company[44] and (2) take the Beijing Company’s directions and instructions and convey them to other officers and employees of CCT for execution[45]. CCT’s business & Beijing Company’s business & financial support 39.The business of CCT was similar to that of Kingpower[46]. 40.The Beijing Company supported the business of CCT in various ways.
Beneficial ownership of bank accounts opened & maintained by Messrs Li, Zhang & Zhong 41.In addition to paragraphs 9 to 13 of Ms Lai’s witness statement dated 19 December 2016, I am satisfied on the documentary evidence before me[51] that Mr Li held, inter alia, the savings and current bank accounts with BOCHK and The Hongkong and Shanghai Banking Corporation Limited (“HSBC”) either singly or jointly with either Mr Zhang or Mr Zhong as particularised in paragraphs 3(d) to 3(g) of the ASOC. 42.Consistently with paragraph 13 of Ms Lai’s witness statement, there are documents in the trial bundles showing that Mr Li also held other accounts with various banks singly[52] or jointly with Mr Zhang[53] or Mr Zhong[54]. Of significance are the accounts numbered 247-10-030552-3 and 247-20-092767-8(“Mr Li’s 1st LCH Account” and “Mr Li’s 2nd LCH Account” respectively) opened and maintained by Mr Li with Liu Chong Hing Bank Ltd (“LCH”). 43.I accept that the setting up of bank accounts in the names of Messrs Li, Zhang and Zhong was necessitated by the non-completion of the incorporation formalities of CCT, which prevented CCT from opening bank accounts[55]. After the formation of CCT, these accounts were kept for use by CCT for its business operations[56]. For instance, to facilitate the compilation of sales statistics, the income from sales achieved by Mr Zhong would be paid into the joint account(s) of Mr Li and Mr Zhong while the income from sales achieved by Mr Zhang would be deposited into the joint account(s) of Mr Li and Mr Zhang[57]. 44.Contrary to the denials in paragraph 3 of Mr Li’s amended defence, the funds kept in all the abovementioned bank accounts came from, and belonged to, CCT, not the account holders. In support, I refer to paragraphs 12, 14 and 15 of Ms Lai’s witness statement, paragraphs 12 and 13 of Mr Zhang’s witness statement and paragraphs 10 to 12 of Mr Zhong’s witness statement. I accept these witnesses’ evidence for 4 reasons.
Property dealings before 1996 Agreement Purchase and beneficial ownership of China Harbour Office 45.Mr Li became the registered owner of the China Harbour Office on 4 November 1991 (see land search record at page 1251). 46.The purchase price of $2,616,761 and the associated costs and expenses were paid as follows:
47.It can be seen that the bulk of the BOCHK mortgage loan ($873,030.22) was repaid with funds out of a bank account of CCT. 48.Although parts of the initial capital outlays and expenses and mortgage repayments for acquisition of the China Harbour Office came immediately from bank accounts held in the names of Messrs Li, Zhang and Zhong, the ultimate source of the funds in those accounts was CCT. I repeat the evidence identified, reasons stated and finding made in [44] above. 49.CCT would not have so financed the purchase of the China Harbour Office had it not intended to obtain the beneficial ownership of the property. 50.Such conclusion is supported, firstly, by Ms Lai’s evidence-in-chief in court that she was put in charge of this transaction and that what purported to be Mr Li’s signature on the relevant provisional agreement (「買賣確定書」) was in fact signed by her as it was actually a purchase by the company (which would have to be CCT). 51.Secondly, Mr Li himself had volunteered on a couple of occasions that the purchase of the China Harbour Office was financed by funds given by the Beijing Company to CCT.
52.Thirdly, clause 2(2) of the 1996 Agreement, to which Mr Li was a party, conclusively proves that Mr Li has been holding only the legal title to the China Harbour Office. See [65] below. 53.Fourthly, the use and occupation of the China Harbour Office by CCT as its office after acquisition (apparently without payment of rent) is another circumstance consistent with CCT’s beneficial ownership of the property. 54.In the circumstances, in the absence of evidence to the contrary from Mr Li and in the papers before me, I consider it improbable for CCT not to intend to acquire the beneficial interest in the premises purchased wholly with its funds. On this premise, I find that Mr Li held and still holds the China Harbour Office on trust for CCT. Purchase and beneficial ownership of Provident Centre Flat 55.Mr Li became the registered owner of the Provident Centre Flat on 16 November 1993 (see land search record at page 1317). 56.The purchase price of $7,850,000 and the associated costs and expenses were paid as follows:
57.As shown in the above table, CCT directly paid $3,182,760 ($200,000 + $585,000 + $215,875 + $78,500 + $2,103,385) at the time of purchase. 58.The proceeds of sale of the Eternal Building Flats, which we have established in [24] above as beneficially belonging to CCT, was used to make partial repayments of the mortgage loan secured by the Provident Centre Flat. Such application is to a large extent corroborated by Mr Li’s own disclosure in the IRD Questionnaire that $3,066,067.04 of the purchase monies of the Provident Centre Flat came from the proceeds of sale of the Eternal Building Flats. (I pause at this point to put a marker down that Mr Cong’s contention that Mr Li had paid for the Tanner Garden Flat with the proceeds of sale of the Eternal Building Flats[58], regardless of the beneficial ownership of such premises and proceeds, is false and contradicted by Mr Li’s said statement in the IRD Questionnaire.) 59.The monies for mortgage repayments made out of Mr Li’s account and Mr Li and Mr Zhong’s joint account came from CCT, as found in [44] above. 60.I cannot think of any reason (and none has been put forward) why CCT would wholly finance the acquisition of the Provident Centre Flat but would then give up the beneficial interest in such property, thereby making a gift of the same to Mr Li. As in the case of the China Harbour Office, clause 2(2) of the 1996 Agreement conclusively establishes that Mr Li was holding only the legal title to the Provident Centre Flat. 61.In the circumstances, in the absence of evidence to the contrary from Mr Li and in the papers before me, I am satisfied that Mr Li held the Provident Centre Flat on trust for CCT. 62.The Provident Centre Flat was initially used as a quarter for the staff and visitors from the Beijing Company until late 1996 when Mr Li began to let it for rental income. As in the case of the China Harbour Office, CCT’s use and occupation of the Provident Centre Flat after purchase (apparently rent-free) is a circumstance lending support to CCT’s claim to the beneficial ownership of the property. Sale of Eternal Building Flats 63.In the meantime, in the summer of 1994, the Eternal Building Flats, held in Mr Li’s name but belonging beneficially to CCT, were sold for the total price of $5,530,000 ($2,900,000 + $2,630,000). 64.Out of such sale proceeds, $1,444,866.96 was used to redeem the mortgages on the flats[59] and $29,101.00 ($14,726 + $14,375) went to settle the costs and disbursements of the sales[60]. Without taking into account the estate agent’s commissions, the proceeds left after these payments should have been $4,056,032.04 ($5,530,000 - $1,444,866.96 - $29,101.00). Out of such balance of the proceeds of sale of the Eternal Building Flats, as noted in the table in [56] above, $4,000,000 had been applied towards the reduction of the mortgage loan due in respect of the Provident Centre Flat[61]. Only a modest sum of $56,032.04 would have been left. I would be surprised if the disbursement of the estate agent’s commissions did not wipe out such residual sum, having regard to the amounts of the sale prices. 1996 Agreement between Beijing Company and Mr Li 65.On about 16 February 1996, the Beijing Company and Mr Li entered into a「承包協議書」 (“1996 Agreement”) (pages 532-533)[62] in the following terms (emphasis added):
66.On a natural and ordinary reading, under the 1996 Agreement:
67.It is highly pertinent that the China Harbour Office and the Provident Centre Flat were specifically identified in the 1996 Agreement as assets in respect of which the Beijing Company retained ownership. This may at first glance be incongruent with CCT’s case that it is/was the beneficial owner of these 2 properties. However, the 1996 Agreement was a homemade document drafted by laymen. The drafting is understandably loose. It also unsurprisingly displays an ignorance of the principles that a company is a legal entity separate from its shareholders and that the holders, not to mention the beneficial holders, of shares in a company do not thereby own, whether legally or beneficially, the assets of the company. I think the parties to the 1996 Agreement clearly meant the arrangement made thereunder did not affect the beneficial title to the assets and properties acquired by Mr Li in name only before the 1996 Agreement. Property dealings during term of 1996 Agreement (1.1.1996 – 31.12.2000) Purchase of Tanner Garden Flat 68.CCT became the registered owner of the Tanner Garden Flat on 10 September 1996 at the price of $6,450,000[63]. The purchase was financed to the extent of $3,100,000 by an instalment loan advanced by BOCHK[64]. The balance of the purchase price in the sum of $3,350,000 and the associated costs and expenses were paid by CCT[65]. This is uncontroversial. Letting of Provident Centre Flat 69.Contrary to the non-admission in paragraph 13(2) of Mr Li’s amended defence that the Provident Centre Flat had ever been rented out, there is, at pages 1309-1312, photocopy of a tenancy agreement dated 8 December 1996, whereby Mr Li let the Provident Centre Flat for a term of 2 years from 16 December 1996 to 15 December 1998 at a monthly rent of $38,000 exclusive of rates and management fee[66]. The parties later agreed on the early determination of the tenancy on 31 March 1998[67]. 70.There should be no other tenancy agreement or lease in respect of the Provident Centre Flat. This is so because this property was initially used by CCT as accommodation for its directors and guests until 1996 when CCT began to let the same and then it was sold in 1998. 71.Mr Li was the landlord under the said tenancy agreement. In the normal course of event, to ensure a valid discharge, the tenant would pay rent to the landlord. The tenant’s cheques mentioned in footnote [66] were made payable to Mr Li. However, none of CCT’s witnesses dealt with, and there is no evidence as at, what Mr Li did or failed to do about the rental income from the Provident Centre Flat. Sale of Provident Centre Flat 72.In the meantime, Mr Li proposed to sell the Provident Centre Flat. For that purpose, on 14 July 1997, he executed a power of attorney in favour of Ms Lai to entrust the sale of the Provident Centre Flats to her[68]. 73.Ms Lai then signed a provisional agreement for sale and purchase dated 8 September 1997 (page 1297), as attorney for Mr Li, for the sale of the Provident Centre Flat at $11,530,000. Deposits totalling $1,153,000 ($400,000 + $753,000) were paid to Mr Li[69]. Mr Li incurred estate agent’s commission and legal costs in the respective sums of $75,000[70] and $12,000[71] for this sale. This transaction, however, fell through as a result of the purchaser’s default and Mr Li forfeited the said deposits. After deducting the said costs and expenses, a net sum of $1,066,000 ($1,153,000 - $75,000 -$12,000) should have been realised. Under normal circumstances, the cheques for the deposits would be made payable to the registered owner, i.e. Mr Li, in this case. It is Ms Lai’s evidence in paragraph 54 of her witness statement, which I accept, Mr Li had not paid the net forfeited deposits back to CCT on an examination of CCT’s accounts. In short, the net forfeited deposit from the attempted sale of the Provident Centre Flat is yet to be accounted for. 74.By another provisional agreement for sale and purchase dated 22 April 1998 entered into by Ms Lai as attorney for Mr Li (pages 1303-1304), Mr Li agreed to sell the Provident Centre Flat at $10,200,000 and to pay the estate agent $102,000 for commission. Deposits totalling $1,020,000 ($300,000 + $720,000) were paid to Mr Li on 22 April 1998 and 5 May 1998 respectively[72]. These deposits were paid into Mr Li’s 1st LCH Account[73]. As to the balance of purchase price, according to the relevant completion statement and completion cheque (page 1308), the proceeds of sale, after deducting the redemption money paid to BOCHK ($737,678.93) and solicitors’ costs and disbursements ($16,000), was $8,426,321.07, which was paid to Mr Li on 8 June 1998.[74] 75.I cannot find any document in the trial bundles showing the account into which Mr Li had deposited this sum. After taking into account the abovementioned commission payable to the estate agent, the net proceeds of sale of the Provident Centre Flat should be about $9,344,321.07 ($1,020,000 + $8,426,321.07 - $102,000). Under normal circumstances, the cheques/cashier orders for the deposits and the balance of the purchase price would be made payable to the registered owner, i.e. Mr Li, in this case. According to paragraph 55 of Ms Lai’s witness statement, Mr Li had deposited such sums into an (unspecified) account held in his sole name with LCH. It will be seen under the next heading that $6,000,000 of the proceeds of sale of the Provident Centre Flat was applied towards the acquisition of the Pacific Palisades Flat, as summarised in the table under [77] below. That being the case, a sum of approximately $3.3 million ($9,344,321.07 - $6,000,000) from the sale of the Provident Centre Flat remains unaccounted for. Purchase and letting of Pacific Palisades Flat 76.Mr Li became the registered owner of the Pacific Palisades Flat on 26 June 1998 (see land search record at page 1375). 77.The purchase price of $7,700,000 and the associated costs and expenses were paid as follows:
78.It can be seen that the price was paid as to $6,000,000 out of the proceeds of sale of the Provident Centre Flat which, as determined in [61] above, was held by Mr Li on trust for CCT. The monies used to make partial repayment of the mortgage loan due to Citibank, i.e. $1,000,000, though coming out immediately from Mr Li’s 1st LCH Account, belonged beneficially to CCT (see [44] above). 79.However, Ms Lai’s testimony deals only with the sources of the purchase price of the Pacifica Palisades Flat, but not the stamp duty, estate agent’s commission and the legal costs and expenses. Although it is asserted in Schedule III to the ASOC that the stamp duty and legal costs and expenses were paid out of Mr Li’s 1st LCH Account, save for the stamp duty that appears to have been paid by a LCH cheque in sequence with those settling the 3 tranches of deposit drawn on Mr Li’s 1st LCH Account, there is no evidence as to who paid the estate agent’s commission or the legal costs and expenses. In the absence of evidence, I cannot make any finding as to the source(s) of the fund(s) used for settlement of such commission or expenses. 80.However, the lack of evidence on who paid the relatively modest estate agent’s commission and the legal costs and expenses does not prevent me from holding, on the basis of the capital outlays totalling $7,000,000 mentioned in [78] above, that the intention was for CCT to have the beneficial ownership of the Pacific Palisades Flat. And I so hold. Consequently, Mr Li held the Pacific Palisades Flat on trust for CCT. 81.After purchase, the Pacific Palisades Flat was let for rental income as follows:
82.Although there is no direct evidence, Mr Li was the landlord under the abovementioned tenancy agreements. In the normal course of event, to ensure a valid discharge, the tenant would pay rent to the landlord. Ms Lai (whose evidence[76] I accept) subsequently found out that Mr Li had not returned the Pacific Palisades Flat rental income to CCT, thereby suggesting that Mr Li had misappropriated the monies. Redemption of Tanner Garden Flat 83.CCT paid off the mortgage on, and redeemed, the Tanner Garden Flat in June 1999[77]. 2001 Agreement & its meaning & effect 84.The 1996 Agreement expired on 31 December 2000. 85.On 18 February 2001, the Beijing Company (represented by its then general manager, Dai Xiu Fang (戴秀芳)) and Mr Li signed a memorandum of agreement in the following terms (“2001 Agreement”) (page 1821):
86.There is no dispute as to the provenance of the 2001 Agreement. Paragraph 32 of the PRC Judgment quoted its content. A number of witnesses who gave evidence before the PRC Court (Mr Zhang, 郭世明 and胡明智) were aware or had heard of such agreement. The actual photocopy kept amongst CCT’s records and papers has been produced by CCT as exhibit P1. Mr Cong has also obtained a copy from Mr Li’s son. 87.Despite the averment in paragraph 37 of Mr Li’s amended defence that he was the sole beneficial shareholder of CCT, Mr Li himself made no mention of the 2001 Agreement in his pleading. 88.Mr Cong seems to be the first party to raise the 2001 Agreement. He did so by adding paragraph 14B when he filed his re-amended defence on 4 April 2018. Mr Cong apparently became aware of the existence and content of the 2001 Agreement from reading the PRC Judgment. Other than pleading the terms of the 2001 Agreement and the fact that it was entered into after the 1996 Agreement, Mr Cong has not elaborated on what he contends to be the meaning or effect of such agreement. 89.CCT’s response in respect of Mr Cong’s pleading of the 2001 Agreement is contained in paragraph 4 of its reply to the re-amended defence of Mr Cong as follows (sic):
90.Other than the production of the 2001 Agreement by CCT and Mr Cong, no meaningful evidence has been given on its factual matrix (save that it was made at the time of Mr Li’s resignation from the Beijing Company). 91.I agree with CCT that the 2001 Agreement did not affect or purport to affect CCT’s beneficial title to any of the Subject Properties. This agreement was made between the Beijing Company and Mr Li only. CCT was not privy to it. The Beijing Company and Mr Li could not and did not between themselves purport to deprive CCT of the ownership, legal or beneficial, to any property. 92.In my view, what the 2001 Agreement sought to deal with was the Beijing Company’s beneficial ownership of the 95% CCT Shares registered under Mr Li’s name. In the absence of any factual matrix pointing to a different interpretation, on the face of the 2001 Agreement:
93.On the materials before me, the only relation between the Beijing Company and CCT that is apparent to me was the former’s then beneficial ownership of the 95% CCT Shares held by Mr Li[78]. As I see it, by completely severing its relation with CCT (「完全脱离关系」) by entering into the 2001 Agreement, the Beijing Company was terminating the trust of the CCT Shares in question and giving up its beneficial interest therein to Mr Li so that from the date of the 2001 Agreement, Mr Li became both the legal and beneficial owner of the CCT Shares registered in his name. First, Mr Li was the only other party to the 2001 Agreement. Second, the beneficial estate usually follows the legal one. Third, Mr Li was made to bear sole liability for CCT’s loans and indebtedness (「贷款负债」)[79]. 94.That Mr Li had become the legal and beneficial owner of 95% of the CCT Shares, does not, however, support his proposition in paragraph 38 of his amended defence that CCT’s complaints about his dealings with the Subject Properties, even if established, can be regarded as having been authorised or ratified by all shareholders of CCT and therefore by CCT. 95.It bears repeating that a company is a legal entity separate from its shareholders and that the holders, not to mention the beneficial holders, of shares in a company do not thereby own, whether legally or beneficially, the assets of the company or can deal with company assets as they like. The only qualification is where the principle in Re Duomatic Ltd [1969] 2 Ch 365 at 373C is satisfied. Simply put, where it could be shown that all shareholders who had a right to attend and vote at a general meeting of the company assented to some matter which a general meeting of the company could carry into effect, that assent was as binding as a resolution in general meeting would be, provided that the decision of the shareholders must be made honestly at a time when the company was solvent. See Multinational Gas and Petrochemical Co v Multinational Gas and Petrochemical Services Ltd [1983] 1 Ch 258 at 288D-E; and Bowthorpe Holdings Ltd v Hills [2003] 1 BCLC 226 at [49]-[52]. 96.The Duomatic principle has no application here. Mr Li had never at any material times held all the CCT Shares. Anyways, I have no evidence as to the solvency or otherwise of CCT at the times of Mr Li’s dealings with Subject Properties. 97.For the sake of completeness, I should make a note here that according to paragraph 40 on page 20 of the PRC Judgment, the State-owned Assets Supervision and Administration Commission of the Beijing Municipality (北京市人民政府國有資產監督管理委員會) had expressed the view that the 2001 Agreement is illegal. The reason therefor is that the Beijing Company was a state-owned enterprise. The interest in the shares of CCT that was “formed” by the Beijing Company’s investment (「其投資所形成的股權」) was therefore a state-owned asset (國有資產). Those involved in signing the 2001 Agreement were therefore suspected of (「涉嫌」) the unlawful disposal of a state-owned asset. However, the legality or otherwise of the 2001 Agreement has not been raised or argued before me. I have no expert evidence on the relevant PRC law. I do not propose to explore the matter. Anyways, it is unnecessary for me to do so. 98.Further, I am not unaware that the subsequent dealings with the CCT Shares held in Mr Li’s name are inconsistent with my above interpretation of the 2001 Agreement. 99.First, on 22 June 2009, the shares registered in Mr Li’s name were transferred to Ms Lai and Ms Lai, in turn, transferred 1 share under her name to her sister, Lai Siu Wan (黎少雲) (“Ms SW Lai”)[80], so that Ms Lai and Ms SW Lai respectively held 19,999 shares and 1 share in CCT[81]. Ms SW Lai also replaced Mr Li as director of CCT[82]. 100.Regarding such change of shareholding, it is Mr Li’s case as pleaded in paragraph 37(3) of his amended defence that Ms Lai and Ms SW Lai held all the CCT Shares as trustees for him. On the other hand, according to paragraph 27 of Ms Lai’s witness statement, before his return to the Mainland at some point in 2007/2008 (which is uncontroversial), Mr Li had executed undated documents to resign as director of CCT and to transfer the CCT Shares registered under his name to Ms Lai, without any actually paid consideration. The formalities were not completed until 22 June 2009 only due to delay on the part of CCT’s accountant(s). What raises question is that it is also implicit in paragraph 27 of Ms Lai’s witness statement that Mr Li’s resignation and disposal of the CCT Shares were done at the direction of the Beijing Company. 101.Mr Li did not attend trial to give evidence to make out the case pleaded in paragraph 37(3) of his amended defence. However, there is no evidence that the 2001 Agreement had ever been rescinded or reversed after its conclusion and before the transfer by Mr Li. That being the case, on the construction of the 2001 Agreement in [92]-[94] above, Mr Li was the legal and beneficial owner of 95% of the shareholding in CCT before he transferred the same to Ms Lai. In the absence of evidence of any intention on the part of Mr Li to gift the shares to Ms Lai, the presumption is that Ms Lai held the shares on a resulting trust for Mr Li. I am therefore not inclined to accept the implicit suggestion in paragraph 27 of Ms Lai’s witness statement that by 2007/2008, the Beijing Company still had any proprietary interest in the CCT Shares held by Mr Li to give Mr Li direction for their disposal. 102.Second, according to paragraph 30 of Ms Lai’s witness statement[83], the Beijing Company had in the meantime been wound up and dissolved on 7 August 2008, with the result that all the assets and properties of the Beijing Company were taken over by one 北京對外經貿控股集團有限責任公司. The 95% shareholding in CCT was apparently included as the assets and properties of the Beijing Company. And the said北京對外經貿控股集團有限責任公司appointed one Wang Huiping (王輝平) (“Mr Wang”) as its representative to hold such shares in CCT. Towards this end, on 18 November 2013, Ms Lai, one Mr Hui Sung Sat (許崇實) (“Mr Hui”)[84] and Ms SW Lai respectively transferred to Mr Wang 11,400 shares, 7,600 shares and 1 share in CCT. After this round of transfers, the CCT Shares were held by Mr Wang as to 19,000 shares, Ms Lai at to 600 shares[85] and Mr Hui as to 400 shares[86]. After disposing of her 1 share, Ms SW Lai ceased to be a director. In her place, Mr Wang was appointed. 103.To complete the picture, Mr Wang’s shareholding and directorship in CCT were passed onto one Ma Guowei on 31 May 2017. 104.As already noted, there is no evidence that the 2001 Agreement has at any stage been rescinded or reserved. The transactions mentioned in the preceding 2 paragraphs disregarded the 2001 Agreement. It has not been explained to me how these transactions could sit well with the 2001 Agreement, as construed above. Anyway, it is unnecessary to, and I do not, make any finding. Dealings with properties after making of 2001 Agreement Transfer of Tanner Garden Flat from CCT to Mr Li 105.By an agreement for sale and purchase dated 10 August 2004 (pages 1762-1780) and an assignment dated 7 September 2004 (pages 1783-1788), CCT “sold” and transferred the Tanner Garden Flat to Mr Li for the stated consideration of $3,980,000. According to Ms Lai[87], whom I believe, this transaction was carried out only upon Mr Li’s insistence. 106.The said agreement and assignment were in the forms and on the terms commonly adopted in Hong Kong in this type of transactions. In particular, they contained purported acknowledgments of receipt of different parts of the stated consideration. 107.In the present case, on Mr Li and Mr Cong’s own pleaded case, the stated consideration of $3,980,000 for the transfer of the Tanner Garden Flat from CCT to Mr Li was not satisfied by Mr Li by direct payments by cheques/cashier orders, as is normally done. 108.Instead, Mr Li barely asserts in paragraph 26(3) of his amended defence that CCT held a sum of $4,000,000 in its bank account(s) on trust for him and that he paid CCT the consideration of the Tanner Garden Flat by set-off against the $4,000,000 allegedly held by CCT for him. Mr Li has, however, given no particular of the circumstances in which CCT came to hold $4,000,000 on trust for him or where the sum originated from. 109.On the other hand, Mr Cong has condescended to more particulars. In paragraphs 14(2)(i), (ii), (iii) and (v) and 14A of his re-amended defence, Mr Cong asserts that Mr Li had “declared and confirmed” with him (1) that he was the registered and beneficial owner of the Eternal Building Flats; (2) that he disposed of the 2 properties, and discharged the mortgages thereon, in July and August 1994; (3) that the combined proceeds of sale of $4,000,000 “remained on the accounts of [CCT]” and was held by CCT as his trustee; and (4) that in 2004, the board of directors of CCT resolved to sell the Tanner Garden Flat to Mr Li and to use the sum of $4,000,000 owed by CCT to Mr Li to set off the purchase price of $3,980,000. 110.I have already found that Mr Li held the Eternal Building Flats, not as beneficial owner, but on trust for CCT (see [24] above); and that the $4,000,000 realised from the sale of such properties completed on 30 July 1994 and 26 August 1994 (which belonged to CCT beneficially) had been applied to make 2 partial repayments of the loan secured by the mortgage of the Provident Centre Flat on 3 August 1994 and 15 November 1994 (see [56] & [58] above). 111.In view of these findings, the defendants’ case that Mr Li had provided consideration for the Tanner Garden Flat with the use of the proceeds of sale of the Eternal Building Flats cannot stand. 112.Neither Mr Li nor Mr Cong has put forward an alternative case. It would have been difficult for them to do so with credibility. I find, as a matter of fact, that Mr Li had not paid any consideration for the Tanner Garden Flat. 113.Without an exchange of values and in the absence of evidence of an intention on the part of CCT to gift the property to Mr Li, Mr Li held the Tanner Garden Flat on a resulting trust for CCT. I pause to reiterate that a company and its shareholders are separate entities and that a shareholder, not even a 95% shareholder like Mr Li, has no proprietary interest in the company’s assets and properties. 114.It follows that Mr Li could not subsequently validly pass to Mr Cong the beneficial title to the Tanner Garden Flat. Letting of China Harbour Office since 2006 115.As stated above, it is CCT’s pleaded case, and I find, that Mr Li had rented out the China Harbour Office since 2006 after CCT ceased to use and occupy the property as its office. 116.Although there is no direct evidence, in the normal course of event, one would have expected the tenancy agreement(s) to be entered into by the registered owner, Mr Li, as landlord and the tenant to pay rent to Mr Li. CCT, as beneficial owner of the China Harbour Office, was in turn entitled to receive from Mr Li the rental income derived from such property. However, according to Ms Lai[88] (whom I believe), she could not find any record of receipt of any rental income from the China Harbour Office in the accounts of CCT, thereby suggesting that Mr Li had misappropriated the monies, at least before he left Hong Kong in 2007/2008. Transfer of Tanner Garden Flat from Mr Li to Mr Cong 117.By an agreement for sale and purchase (“Purported SPA”) and an assignment (“Purported Assignment”), both dated 3 July 2007, between Mr Li as vendor and Mr Cong as purchaser, Mr Li sold and conveyed the Tanner Garden Flat to Mr Cong for the stated consideration of $4,800,000. Such agreement and assignment were registered with the Land Registry on 26 July 2007 (see land search record at pages 1430 & 1434). 118.This transfer had been made without notice to CCT despite CCT’s beneficial ownership of the Tanner Garden Flat (see [113] above). Ms Lai learnt of it after the incarceration of Mr Li in Beijing[89]. 119.I repeat the conclusion in [114] above. That being the case, I do not think that Mr Cong can claim to be a bona fide purchaser without notice of CCT’s beneficial interest in the Tanner Garden Flat. In this regard, Mr Li was a director of CCT. This fact should and would have become plain to Mr Cong upon sight of the minutes of CCT’s directors’ meeting on 7 September 2004 (page 1781), which document is described by counsel for Mr Cong as “part of the title documents” of the Tanner Garden Flat[90]. The Tanner Garden Flat was CCT’s property. By acquiring the Tanner Garden Flat from CCT, Mr Li was putting himself in a position of conflict of interests and, therefore, in breach of his fiduciary duty to CCT. Requisition should have been, but was not, raised by Mr Cong. Indeed, the whole stage of investigation of title, which is usually the most significant in a typical conveyancing transaction in Hong Kong, had peculiarly been skipped in this case. Mr Cong obviously did not care about, and turned a blind eye to, whether Mr Li had a good title to the property. 120.This should be sufficient to dispose of the dispute between CCT and Mr Cong in favour of the former over the beneficial ownership of the Tanner Garden Flat. 121.For the sake of completeness, as in the case of the transfer from CCT to Mr Li, the Purported SPA and the Purported Assignment were likewise in the forms and on the terms commonly adopted in Hong Kong in this kind of transactions. 122.I am sceptical about Mr Cong’s entire case on his purchase of the Tanner Garden Flat. The matters to be mentioned in [123]-[133] below are particularly worthy of note. 123.First, there is no evidence of any negotiation or discussion between vendor and purchaser on the terms of the Purported SPA as one would find in a genuine arms-length transaction. 124.Second, the parties then completed the transaction on the same date by the Purported Assignment, without allowing any time for the usual steps between agreement and completion to take place. I have already observed in [119] above that there was no investigation of Mr Li’s title. This is so despite Mr Li’s express obligation under clause 8(a) of the Purported SPA (page 1792) to prove title in accordance with s 13 of the Conveyancing and Property Ordinance (Cap 219). It is most unlikely for a bona fide purchaser of real estate to forgo his contractual right to be satisfied that the vendor does have a good title to the property that he is purchasing. 125.Third, apart from clause 8(a) which the parties well knew would not be performed, the manner in which the purchase price was allegedly paid also completely disregarded clause 2(b) and Part II of the Second Schedule to the Purported SPA (pages 1791 & 1801). These provisions, read together, required payment of the whole purchase price on 3 July 2007, being the date of the Purported SPA as well as the date of completion, by either cashier order(s) or solicitors’ cheque(s). 126.As it turned out, Mr Cong paid no part of the purchase price of $4,800,000 on 3 July 2007. Nor did he pay by cashier order(s) or solicitors’ cheque(s) either. Instead, Mr Cong allegedly paid Mr Li by[91]:
127.It is absurd for Mr Cong to have paid the purchase price of the Tanner Garden Flat to Mr Li in the said alleged manner.
128.Fourth, other than departing from the contractual provisions governing the payment of the purchase price, the supporting documents disclosed by Mr Cong as proofs of payment of the purchase price of $4,800,000 as aforesaid raise more questions than they answer. 129.In this connection, in support of the allegation in [126(1)] above, Mr Cong relies on (1) what purports to be a Chinese loan agreement dated 1 December 2002 (“Purported Loan Agreement”) between「北京市國都寵物樂園法人代表李殿義先生」(as borrower) and Mr Cong (as lender) but also signed by Mr Li as「中介擔保人」(page 1814); and (2) what appears to be a page downloaded from a website called「全國企業信用信息公示系統 (北京)」showing that Mr DY Li was the legal representative of 北京市國都寵物樂園有限公司 (page 1813). 130.The problems that I see are:
131.In support of the allegation in [126(2)] above, Mr Cong has disclosed (1) copy of a cheque dated 14 October 2008 in the sum of $3,000,000 drawn by Ms Cong on her account with Shanghai Commercial Bank Ltd in favour of one 茂信興貿易公司 (page 1812); and (2) a remittance receipt dated 14 October 2008 issued by one Multi Easy Hing Trading Co (茂信興找換) showing the remittance of RMB2,622,000 (converted from $3,000,000) from Ms Cong to Mr Y Li (page 1815). 132.Again, I have queries arising from these supporting documents. While these documents show a payment of RMB2,622,000 by Madam Cong to Mr Y Li, there is no indication of the nature of the payment other than Mr Cong and Madam Cong’s words. The lack of such objective or independent evidence assumes significant when the date of this payment is considerably later than the date of completion of the purported sale and purchase of the Tanner Garden Flat between Mr Li and Mr Cong. I have already noted the delayed payment of this part of the purchase price. 133.On the aforesaid summary and analysis of the evidence before me, I am not persuaded that Mr Cong had paid the stated consideration of $4,800,000 for the sale and purchase of the Tanner Garden Flat under the Purported SPA and the Purported Assignment whether as alleged or at all. 134.In the premises, it is unnecessary to determine whether $4,800,000 was an under-value. Sale of Pacific Palisades Flat 135.By a provisional agreement for sale and purchase dated 13 August 2007 (pages 1342-1343), Mr Li as vendor agreed to sell the Pacific Palisades Flat at $7,780,000 and to pay the estate agent $77,800 for commission. Under such agreement, deposits of $233,400 and $544,600 and the balance of purchase price of $7,002,000 should have been paid to Mr Li on 13 August 2007, 3 September 2007 and 18 October 2007 respectively. In addition, the said estate agent’s commission would also be due on 18 October 2007. There is no evidence as to whether any sum was still outstanding under the mortgage loan from Citibank or the amount of the legal costs and expenses incurred for the sale. In any event, even if no redemption money was payable to Citibank, the net proceeds of sale, after deducting the said estate agent’s commission and legal costs and expenses should be somewhat less than $7,780,000. 136.According to Ms Lai[92], Mr Li had misappropriated the profit realised from the sale of the Pacific Palisades Flat. I believe Ms Lai is speaking loosely. Strictly speaking, the gross profit from the sale of the Pacific Palisades Flat should be the difference between the purchase price and the sale price, which is only $80,000 ($7,800,000 - $7,700,000). Indeed, taking into account the costs and expenses incurred on the purchase and sale, the holding of the Pacific Palisades Flat resulted in a loss. I believe, and I proceed on the basis, that what Ms Lai is saying (which I accept) is that Mr Li had not paid to CCT the net proceeds of sale that he received from selling the Pacific Palisades Flat. Cessation of CCT’s business of selling knitwear export quotas 137.Beginning from 2006, CCT has ceased its business of selling knitwear export quotas following the gradual abolition of the quota system for the export of textile goods in Mainland China after the PRC joined the World Trade Organisation[93]. Incarceration, conviction & imprisonment of Mr Li 138.Mr Li was tried and convicted by the PRC Court of corruption in disposing, and misappropriating the proceeds of sale, of the landed properties of one 北京永大製衣有限公司[94] while he was the legal representative and chairman of that company from May 2003 to February 2007. He was sentenced to a term of imprisonment for 15 years from 29 August 2008 to 28 August 2023, which he was still serving at the time of the trial of this action[95]. Winding up & dissolution of Beijing Company 139.I have already mentioned Ms Lai’s evidence in paragraph 30 of her witness statement that the Beijing Company had in the meantime been wound up and dissolved on 7 August 2008. For the effects of the liquidation of the Beijing Company on CCT, see [102] and [103] above. ANSWERS 140.I can now answer the questions set out in [3] above. Laches 141.I am unimpressed by Mr Li’s case on laches which runs like this: CCT made no complaint whatsoever to, or against, Mr Li regarding his dealings with the Subject Properties in breach of duties until the commencement of this action on 20 February 2012, by which time he had already lost his freedom and has therefore become unable to himself testify, locate material witnesses to give evidence or find relevant documents in his defence in this action. 142.Mr Li was the most senior person stationed by the Beijing Company in Hong Kong. As explained by Ms Lai in paragraphs 37 and 38 of her witness statement, Mr Li led and dominated the management of CCT’s business and operation prior to his departure from Hong Kong in 2007/2008. She therefore thought that whatever Mr Li did had been authorised by the Beijing Company. It did not occur to her to challenge his conduct in relation to CCT. 143.Ms Lai did not investigate into CCT’s books and records and found out and realised that Mr Li had misappropriated CCT’s assets in acquiring properties in his personal name until after the representatives of the People’s Procuratorate had come to Hong Kong to make inquiries about CCT. In this connection, included in the trial bundles are copies of records of interviews of Ms Lai by the People’s Procuratorate in Hong Kong in May 2009 (pages 545-549) and a notarised Chinese statement dated February 2010 by Ms Lai to the People’s Procuratorate (pages 552-556). 144.I accept Ms Lai’s evidence, on the basis of which I rule out any delay in CCT’s action against Mr Li. 145.Further, prejudice is an essential element for a defence based on the doctrine of laches. See, for example, Cuvelier Jacques R v Chen Qizhi [2019] HKCFI 2386 at [52]. However, the court does not act on bare and unparticularised assertions of detriment. During the period from 11 November 2015 to 26 June 2016, Mr Li was represented by solicitors who instructed counsel on his behalf. Mr Li was able to give instructions to his legal representatives for the amendment of his defence. Yet, paragraphs 10, 19(4), 22(2), 24(3) and 36 of Mr Li’s amended defence in which Mr Li’s case on laches is pleaded are couched in the most ambiguous and obscure terms. Mr Li did not condescend to particulars of what testimony he could have personally given, what witness(es) he could have located or contacted or what document(s) he could have unearthed to establish a defence. 146.CCT is not estopped by laches. CCT Shares 147.nbsp; Prior to the date of the 2001 Agreement, Mr Li held the CCT Shares registered in his name (which was not 100%) on trust for the Beijing Company. He only acquired the beneficial ownership of such shares by virtue of the 2001 Agreement. China Harbour Office arbour 148.Mr Li held and still holds the China Harbour Office on trust for CCT. 149.Further, Mr Li let such property and received rental income therefrom since 2006 without accounting to CCT for such income. Provident Centre Flat 150.Mr Li held the Provident Centre Flat on trust for CCT. 151.Also, Mr Li had received the following monies in respect of this property without accounting to CCT: (1) the net forfeited deposit when the attempted sale of the Provident Centre Flat in 1997 fell through; and (2) the net proceeds from the sale of the Provident Centre Flat in 1998. Pacific Palisades Flat 152.Mr Li held the Pacific Palisades Flat on trust for CCT 153.Also, Mr Li had received the following monies in respect of this property without accounting to CCT: (1) rental income between 1998 and 2007; and (2) the net proceeds from the sale in 2007. Tanner Garden Flat 154.Mr Li held the Eternal Building Flats on trust for CCT. Hence, the approximate sum of $4,000,000 realised from the sale of the Eternal Building Flats in 1994 beneficially belonged to CCT. 155.Mr Li had not paid any consideration for the transfer of the Tanner Garden Flat from CCT to him on 7 September 2004 with the consequence that he did not acquire the beneficial ownership of such property, which he held on trust for CCT from 7 September 2004 to 3 July 2007. 156.Mr Cong did not pay Mr Li any consideration for the transfer of the Tanner Garden Flat to him on 3 July 2007. The purported sale and purchase of such property between Mr Li and Mr Cong was not a genuine transaction. And Mr Cong was not a bona fide purchaser for value without notice of CCT’s beneficial interest in the Tanner Garden Flat. RELIEF 157.For the above reasons, as against Mr Li:
158.As against Mr Cong:
159.The parties should apply to the masters for directions for taking the accounts and conducting the inquires ordered above. 160.Costs usually follows the event. I make an order nisi that the defendants shall pay CCT the costs of this action to be taxed on a party and party basis, if not agreed.
Mr K M Chong and Mr Alvin Chong, instructed by Liu, Chan & Choi for the plaintiff The 1st defendant was unrepresented and did not appear Mr Alvin Tsang instructed by C S Chan & Co for the 2nd defendant [1] There is a discrepancy between (1) §8 of the amended statement of claim dated 20.3.12 (“ASOC”) alleging that the China Harbour Office was let for rental income since CCT had ceased to use it as its office in 2005 and (2) §44 of the witness statement of Lai Siu Kuen also known as Pinky Lai (黎少娟) (“Ms Lai”) alleging that CCT moved to a new office in about 2001 and that since then Mr Li had rented out the China Building Office. I will go by the case pleaded in the ASOC by which CCT is bound without an amendment. [2] Formerly known as北京市針棉織品進出口公司, and before that, China National Textiles Import & Export Corporation, Beijing Knitwear Branch (中國紡織品進出口公司北京針棉織品分公司). [3] See the joint letter dated 16.5.16 by Liu, Choi & Chan, solicitors for CCT, and CS Chan & Co, solicitors for Mr Cong, at page 778. [4] Which CCT answered on 22.12.15. [5] Superseding Mr Li’s various prior “defence” documents, including the「抗辯書」filed on 17.9.12, the letter dated 10.1.13 to Anthony Chan J setting out his「抗辯意見」and the「補充抗辯書」dated 15.4.13. [6] As per §3 of her witness statement, Ms Xie was the Chief Accountant (總會計師) of the Beijing Company in 1982 when Mr Li first joined the Beijing Company as a salesman (業務員). [7] Ms Lai switched employment from Kingpower to CCT just prior to, or at the time of, CCT’s incorporation at Mr Li’s invitation. [8] Mr Cong apparently remained a student as at the date of his witness statement, i.e. 19.12.2016. [9] To refresh my memory, I have listened to Mr Cong and Ms Cong’s testimonies through the recoding system of the court. [10] I have, by a decision dated 3.4.18 ([2018] HKCFI 729), ruled that the PRC Judgment should be admitted in evidence for the statements therein of the factual evidence before the PRC Court that are relevant to the issues in this action. [11] Certificate of incorporation and certificate of incorporation on change of name at pages 779 & 780 respectively. [12] §§2 & 3 of Ms Lai’s witness statement; §§5 & 7 of Mr Zhong’s witness statement; §7 of Mr Zhang’s witness statement; and testimonies of 楊書武, 吳大蚌and何岱as noted in the PRC Judgment at pages 414, 416 & 417. [13] §4 of Ms Xie’s witness statement; §3 of Mr Zhong’s witness statement; and §4 of Mr Zhang’s witness statement. [14] §5 of Mr Zhang’s witness statement; §5 of Mr Zhong’s witness statement; §6 of Ms Xie’s witness statement; and testimonies of楊書武, 吳大蚌 and 何岱 as recorded in the PRC Judgment at pages 414, 416 & 417. [15] §8 of Ms Xie’s witness statement. [16] Facility letter at pages 1195-1199. [17] Recitals in the relevant nominations. [18] See [22] below. [19] See [26] below. [20]§49 of Ms Lai’s witness statement. [21] §49 of Ms Lai’s witness statement; and testimonies of楊書武 and何岱as stated in the PRC Judgment at pages 415 & 417. [22] §9 of Mr Zhong’s witness statement. [23]§49 of Ms Lai’s witness statement. [24] Certificate of incorporation at page 809. [25] §4 of Ms Lai’s witness statement. [26] §6 of Ms Lai’s witness statement. [27] Page 649, an uncontroversial summary of CCT’s shareholders and directors from incorporation to 2017. See also the said BOCHK’s “information for company account” (pages 1679-1680). [28]§8 of Ms Lai’s witness statement. [29]§7 of Ms Lai’s witness statement. [30] §24 of Ms Lai’s witness statement. [31] List of members in CCT’s annual return made up to 4.4.1992 at page 811. [32] Particulars of directors in CCT’s annual return made up to 4.4.1992 at page 812. [33] §27 of Ms Lai’s witness statement. [34] §§25 & 26 of Ms Lai’s witness statement. [35] List of members in CCT’s annual return made up to 5.10.1995 at page 824. [36] Particulars of directors in CCT’s annual return made up to 5.10.1995 at page 825. [37] §27 of Ms Lai’s witness statement. [38] Summary of share capital and list of members in CCT’s annual return made up to 5.10.1995 at pages 822-824. [39] Record of interview at pages 545-549. [40] §28 of Ms Lai’s witness statement. [41] §§4-6 of Ms Lai’s witness statement; §6 of Mr Zhong’s witness statement; §9 of Mr Zhang’s witness statement; and testimonies of 楊書武, 吳大蚌and何岱as noted in the PRC Judgment at pages 415, 416 & 417. [42] §5 of Ms Xie’s witness statement. [43] Pages 1449-1479. [44] Who was at the time still 楊書武. [45] §8 of Ms Xie’s witness statement; §8 of Mr Zhong’s witness statement; §10 of Mr Zhang’s witness statement; and §37 of Ms Lai’s witness statement. [46] §7 of Ms Xie’s witness statement; and §7 of Mr Zhong’s witness statement. [47] §8 of Ms Lai’s witness statement. [48] §§14, 16 & 19 of Ms Lai’s witness statement; §7 of Ms Xie’s witness statement; §7 of Mr Zhong’s witness statement; and testimonies of楊書武, 吳大蚌 and 印培良as noted in the PRC Judgment at pages 415, 416 & 419 respectively. [49] §16 of Ms Lai’s witness statement. See also page 1104 (by which the Beijing Company informed the general manager of CCT namely, Mr Li that the Beijing Company would transfer to CCT a sum of A$416,485.94 for CCT to use as working capital (流動資金) & page 1106 (credit advice confirming receipt of A$416,485.94 by CCT). [50] §17 of Ms Lai’s witness statement; the letter of guarantee at pages 1125-1127; page 2 of the facility letter at page 1129, the letter of guarantee at pages 1188-1189; and page 4 of the facility letter at page 1193. [51] See the tables in [46], [56] and [77] below setting out, inter alia, the accounts from which the payments for the purchase of the China Harbour Office, the Provident Centre Flat and the Pacific Palisades Flat came and the corresponding supporting documents. [52] See, e.g., pages 1305 & 1307. [53] See, e.g., pages 1084, 1085, 1087, 1088-1105, 1107-1118 & 1140-1150. [54] See, e.g., pages 1056-1072, 1074, 1076, 1077, 1078-1083, 1086 & 1638-1655. [55]§9 of Ms Lai’s witness statement; §10 of Mr Zhong’s witness statement; and §12 of Mr Zhang’s witness statement. [56] §15 of Ms Lai’s witness statement; and §11 of Mr Zhong’s witness statement. [57] §10 of Mr Zhong’s witness statement. [58] §§14(2)(i), (ii), (iii) & (v) & 14A of Mr Cong’s re-amended defence dated 4.4.18. [59] BOCHK receipt for $1,444,866.96 at page 1222. [60] Relevant solicitors’ bills at pages 1223 & 1225. [61] It is worth repeating that the application of the proceeds of sale of the Eternal Building Flats to the acquisition of the Provident Centre Flat is to a large extent corroborated by Mr Li’s own statement in the IRD Questionnaire that $3,066,067.04 of the purchase monies of the Provident Centre Flat came from the sale of the Eternal Building Flats. [62] There is no dispute as to the authenticity or provenance of the 1996 Agreement. Its content is set out in§39 of the PRC Judgment. Upon learning of the existence of the 1996 Agreement from reading the PRC Judgment, Ms Lai obtained a copy from the Beijing Company: §§34 & 36 of her witness statement. CCT then disclosed it as item 80 on its list of documents filed on 19.5.15. [63] Land search record at page 1430 and assignment at pages 1384-1393. [64] Facility letter dated 12.9.1996 at page 1402. [65] §59 of Ms Lai’s witness statement. [66] There are copies of the tenant’s cheques dated 5.11.96 and 1.10.97 for payment of rent (page 1315). [67] See the tenant’s letter dated 11.9.97 and Mr Li’s letter dated 16.9.97 (pages 1313-1314). [68]§52 of Ms Lai’s witness statement. Ms Lai did enter into the 2 agreements for the sale of the Provident Centre Flat on behalf of Mr Li. [69] Cheque for initial deposit and cashier order for further deposit, both payable to Mr Li, at pages 1298 & 1299 respectively. [70] Cheque and receipt for commission at pages 1300 & 1301 respectively. [71] Solicitors’ official receipt at page 1302. [72] Pay-in slip for initial deposit and pay-in slip and cashier order for further deposit, both payable to Mr Li, at pages 1304 & 1306 respectively. [73] Pay-in slips for the deposits at pages 1305 & 1307. [74] Purchaser’s solicitors’ cheque dated 8.6.98 payable to Mr Li at page 1308. [75] According to Schedule III to the ASOC, such fund came immediately from Mr Li’s 1st LCH Account and 2nd LCH Account. However, I understand Ms Lai to be deposing in paragraph 56 of her witness statement to the ultimate source of the fund used to pay the purchase price of the Pacific Palisades Flat not covered by the mortgage loan. I accept Ms Lai’s evidence. [76] §57 of Ms Lai’s witness statement. [77] §60 of Ms Lai’s witness statement; and BOCHK’s debit advice and receipt dated 1.6.99, evidencing the payment of a sum of $878,137.16 by CCT to BOCHK for loan account No 012-875-4-015150-4 with the remark 「提早清還全部貸款」(page 1401). [78] It has been established in [35] above that 5% of the CCT Shares are vested in Ms Lai as long as she remains in CCT’s employ. [79] The parties to the 2001 Agreement appear to have ignored the principle that a company and its shareholder(s) are separate entities as a matter of law so that the latter is not liable for the former’s debts and liabilities over and above his share capital contribution. [80] Presumably to comply with the legal requirement for at least 2 shareholders. [81] Details of members in CCT’s annual return made up to 5.10.2009 at page 921. [82] Details of individual directors in CCT’s annual return made up to 5.10.2009 at page 927. [83] Ms Lai’s evidence in this connection may appear inconsistent with the paragraph numbered 6 on page 29 of the PRC Judgment, stating that the documents relating to the insolvency of the Beijing Company showed that after the liquidation (破產清算) of the Beijing Company, CCT and the Beijing Company’s investment therein had not been included in the list of assets of the Beijing Company to be realised by auction. [84] According to the summary at page 649, before Mr Wang came into the picture on 18 November 2013, Ms Lai had on 24 April 2013 transferred 8,000 shares (representing a 40% shareholding) to Mr Hui who was also appointed a director in addition to the Lai sisters. Ms Lai has however not explained Mr Hui’s identity and the reason why he became involved in CCT. [85] Which represents just a 3% shareholding, which falls short of the 5% Ms Lai is entitled to under the 1993 Agreement. There is no explanation for this inconsistency. [86] Summary at page 649. [87] §61 of Ms Lai’s witness statement. [88]§45 of Ms Lai’s witness statement. [89]§62 of Ms Lai’s witness statement. [90] Paragraph 1.2(2) of Mr Tsang’s opening submission. [91] All the funds came from Madam Cong who had allegedly saved up the monies for Mr Cong’s education or marriage. [92]§58 of her witness statement. [93]§23 of Ms Lai’s witness statement. [94] According to §20 of Ms Lai’s witness statement, this company was a joint venture formed in 1993 between CCT (acting under the instruction of the Beijing Company) and one 北京市延慶縣大榆樹農工商聯合企業總公司. CCT had invested RMB 4.5 million plus plants and equipment and vehicles etc into the company. [95] Although the PRC Court handed down the PRC Judgment on 19 September 2010, Mr Li had in fact been incarcerated since 29 August 2008 as stated in the first paragraph of the PRC Judgment. He was apparently given credit for the time already served. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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