Cheung Mei Ling Roni and Another v. Dr Li Wang Pong Franklin, also known as Franklin Wang Pong Li

HCPI 180/2019

[2022] HKCFI 716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 180 OF 2019

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Before:  Hon Wilson Chan J in Chambers

Date of Hearing:  28 October 2021

Date of Further Written Submissions:  11 November 2021

Date of Decision:  11 March 2022

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D E C I S I O N

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INTRODUCTION

1.This is the hearing of the defendant’s application by summons dated 21 January 2021 (“D’s Summons”) for the discharge or alternatively for the variation of the ex parte Mareva Injunction (the “Injunction”) obtained by the plaintiffs against the defendant on 28 May 2019 by which the defendant is restrained from dealing with his assets up to the restrained amount of $80 Million (“D’s Application”).

2.The plaintiffs oppose the discharge of the Injunction whether subject to the defendant’s undertaking (“D’s Undertaking”) (as mentioned below) or unconditionally, but will not oppose the defendant’s application for variation of the Injunction.

3.The defendant has made clear in the letter dated 26 January 2021 from the defendant’s solicitors, Messrs Hon & Co (“H&C”) to the plaintiffs’ former solicitors, Messrs Stevenson Wong & Co (“SW”) that the defendant’s primary relief sought is to discharge the Injunction and the application for variation of the Injunction is a fallback position.

4.It is the defendant’s case that:

(1)  the Injunction ought to be discharged subject to D’s Undertaking not to further encumber, sell or deal with his property at Town House No E1 on First and Second Floors and Car Parking Spaces Nos 14 and 21 on the Lower Ground Floor, Altadena House No 27 Barker Road, Hong Kong (the “Barker Road Property”);

(2)  alternatively, the Injunction be discharged unconditionally due to:

(a)  The plaintiffs not coming with clean hands at the ex parte application for the Injunction and/or being guilty of material non-disclosure;

(b)  The plaintiffs’ failure to adduce solid evidence of risk of dissipation;

(c)  The plaintiffs’ failure to proceed with the action after having obtained the Injunction.

(3)  failing (1) and (2), the defendant asks for a variation of the Injunction by changing the spending limit from $3,000 per week to $240,000 per month and changing the provision on legal fees from $500,000 to $6.5 Million.

5.At the hearing, the defendant made it clear that his primary position is the one set out at paragraph 4(1) above. So that if the court grants a conditional discharge of the Injunction, the court need not consider the defendant’s alternative positions set out at paragraph 4(2) and 4(3) above.

6.In particular, the defendant submits that the plaintiffs have been acting unreasonably by refusing to accept D’s Undertaking in place of the Injunction when the undertaking was offered by the defendant as early as 13 June 2019 (see the letter dated 13 June 2019 from H&C to SW) and when it is beyond argument that at all times the defendant’s net equity in the Barker Road Property far exceeds the restrained amount of $80 Million.

7.Indeed, paragraph 3(3) of the Injunction expressly provides that the injunction shall cease to have effect if the defendant provides security by paying the restrained amount into court or makes provision for security in that sum by some other method agreed with the plaintiffs’ solicitors or approved by the court.

BACKGROUND FACTS

8.The essential background facts are outlined in the Skeleton Submissions of the defendant as follows.

9.The defendant was aged 88 at the time of the hearing. He is a medical practitioner having obtained his MBBS from HKU in 1956. He is also a Fellow of the Hong Kong Academy of Medicine (Surgery).

10.The defendant used to practice at a clinic in Tsim Sha Tsui (“TST Clinic”) and at Central (the “Central Clinic”). He ceased running the TST Clinic on 17 June 2019 because of increase in rent. The defendant has continued his practice at the Central Clinic up to now.

11.The defendant has 2 marriages. Li Lau Wei Chue Veronica (“D’s Wife”) is the defendant’s wife of the second marriage. Dr Li Ming Sheng Konrad (“Dr Konrad Li”) is the defendant’s son out of the second marriage.

12.The deceased, Cheung Shuk Ling Zoe (the “Deceased”) used to consult the defendant. The Deceased was a banker. According to the plaintiffs, she was an employee of Julius Baer before her demise. The Deceased died intestate. Presumably it is the plaintiffs’ case that the Deceased has no children. The Deceased is said to have a number of siblings including the plaintiffs.

13.The Deceased consulted the defendant on 11 November 2018 and received treatment. The Deceased was admitted to hospital and died on 12 November 2018.

14.No coroner inquest has been held. The defendant has been charged for inter alia the offence of attempting to mislead the police and manslaughter by gross negligence. The criminal trial has not yet taken place. The defendant has retained Senior and Junior Counsel to represent him in the criminal proceedings.

15.On 28 May 2019, the plaintiffs have applied by ex parte summons for order to represent the estate of the Deceased (the “Estate”) and for the Injunction. The application was supported by the 1^st plaintiff’s 1^st Affirmation and an Affirmation of Lo Kai Fung Calvin (“Calvin Lo”), a solicitor of SW. The Injunction was granted ex parte. Also presumably at some later point in time, the plaintiffs obtained the Letters of Administration of the Estate.

16.It can be gathered from the Endorsement of Claim (as amended on 29 October 2019 on representation for the Estate) that the plaintiffs’ claim against the defendant is for damages under the Fatal Accident Ordinance and the Law Amendment Reform (Consolidation) Ordinance and at common law based in the death of the Deceased caused by the defendant in the treatment of the Deceased on 11 November 2018. Indeed, the plaintiffs’ claim is based on loss of dependency and/or loss of accumulation of wealth. The retrained amount of $80 Million is based on these 2 heads of claim.

17.After the Injunction was obtained, the plaintiffs and the defendant have agreed to adjourn the plaintiffs’ application for continuation of the Injunction with the same to be continued in the meantime. The parties have by consent order dated 29 October 2019 agreed that the proceedings be adjourned sine die pending the Coroner’s Inquest and criminal proceedings with liberty to restore.

18.Very soon after the Injunction was obtained, H&C had by letter dated 3 June 2019 to SW referred to the Barker Road Property pointing out that its value would exceed the plaintiffs’ claim and hence the defendant might consider giving D’s Undertaking not to further encumber or to sell the Barker Road Property in lieu of the Injunction. This was then followed by a letter dated 13 June 2019 from H&C to SW enclosing a valuation report of the Barker Road Property prepared by RHL International Appraisal Limited (“RHL”) assessing the market value of the Barker Road Property as at 11 June 2019 to be $362 Million (“RHL’s 1^st Report”). The letter also enclosed a Statement of Account of the UOB showing that the outstanding mortgage loan as at 31 May 2019 was $47,347.695.92, meaning that the defendant’s net equity in the Barker Road Property was more than $310 Million. By the letter, the defendant offered D’s Undertaking in place of the Injunction.

19.However, by the letter dated 17 June 2019 from SW to H&C, the plaintiffs took the position of asking for documents and declarations before considering the defendant’s proposal of D’s Undertaking.

20.Then by a letter dated 3 June 2020 from H&C to SW, the defendant asked the plaintiffs for consent to release the defendant’s account at HSBC so that funds received from the Government under the Employment Support Scheme could be transferred out for the benefit of the defendant’s staff. However, the plaintiffs by SW came back with a reply on 8 June 2020 again asking for various documents before considering the defendant’s request. By the letter SW also referred to a sale of another property at Altadena at $245 Million in October 2019 and alleged that in view of the economic downturn, the plaintiffs had serious concern as to whether the net value of the Barker Road Property after the encumbrance was adequate to cover the plaintiffs’ claim and costs.

21.By a letter dated 19 June 2020 from H&C to SW, H&C pointed out that the plaintiffs’ refusal to unfreeze the defendant’s bank accounts was unreasonable and that even with a sale price of $245 Million, the unencumbered value of the Barker Road Property still far exceeded the plaintiffs’ claim.

22.SW came back with a letter dated 7 July 2020 to H&C stating that the plaintiffs would consider the defendant’s request to unfreeze the bank accounts if the defendant provided an affirmation disclosing all his assets and to provide answer to the questions raised in its 8 June 2020 letter.

23.By a letter dated 14 December 2020 from H&C to SW, H&C pointed out that the plaintiffs have abused the Injunction and were unreasonable in rejecting D’s Undertaking. By the letter H&C repeated the offer of D’s Undertaking.

24.By a letter dated 21 December 2020 from SW to H&C, the plaintiffs expressed alleged concern over the net value of the Barker Road Property and asked for updated valuation report and updated statement of the UOB account and confirmation that the defendant was the sole beneficial owner of the Barker Road Property.

25.By a letter dated 14 January 2021 from H&C to SW, H&C pointed out that it was unreasonable for the plaintiffs not to accept D’s Undertaking and enclosed an updated valuation report of RHL which assessed the market value of the Barker Road Property as at 13 January 2021 to be $349 Million and stated that the defendant has always been the sole beneficial owner of the Barker Road Property.

26.D’s Summons came to be taken out on 21 January 2021.

27.By a letter dated 23 January 2021 from SW to H&C, the plaintiffs agreed to the variation of the Injunction as sought by the defendant. However, as can be seen from the letter from Messrs Deacons (“Deacons”), the plaintiffs’ solicitors, dated 10 May 2021, the plaintiffs maintained that the Injunction was warranted and ought to stay.

28.By a consent order dated 28 January 2021, the proceedings were restored for the hearing of D’s Summons.

THE INJUNCTION SHOULD BE DISCHARGED SUBJECT TO D’s UNDERTAKING

“(d) Relief discretionary. As with perpetual injunctions, the grant of an interim injunction is discretionary. This has three consequences. First, it may be possible to resist the grant of an interim injunction on the basis of the claimant’s conduct, or delay. Secondly, the court is able to impose conditions upon a party seeking an interim injunction. Thirdly, the court may decline to grant an interim injunction where the defendant is prepared to give an undertaking. These consequences are considered in the following paragraphs.” Snell’s Equity, 34^th ed §18-063.

“(5) Suitable undertaking by defendant - no injunction. Upon the defendant giving suitable undertakings the court may withhold an injunction. …” Snell’s Equity, §18-068.

30.The defendant remains willing to provide D’s Undertaking as mentioned above. I agree there is no proper reason for the plaintiffs to contend that D’s Undertaking does not sufficiently protect the plaintiffs’ position in enforcing the judgment if they are going to obtain one. The plaintiffs have been acting unreasonably in steadfastly refusing to accept D’s Undertaking in place of the Injunction which surely has deleterious effect on the lives of the defendant and his family:

“30. A Mareva injunction should not be granted lightly. The consequences of granting the injunction are such as to put the defendant at a very real disadvantage and in a position from which it may never adequately recover: Hsin Chong Construction (Asia) Ltd v Henble Ltd [2005] 3 HKC 27 at [20]; Deiulemar Shipping SpA v Transfield ER Futures Ltd [2011] 1 HKLRD 75 at [55]-[56].” (per Peter Ng J in Re Chau Cham Wong Patrick (a bankrupt) [2016] 2 HKLRD 278)

Indeed, Mareva injunction (of which the Injunction is one) has been said to be one of the strongest orders in the arsenal of the civil courts (per Deputy Judge Douglas Lam SC in Tarn Dai Mey v Ma Jinrui [2021] 2 HKLRD 671 at §47).

31.The plaintiffs have made a number of allegations to defend their position. I agree that none of them is tenable.

Defendant’s ownership of the Barker Road Property

32.The plaintiffs have tried to cast aspersions on the defendant’s ownership of the Barker Road Property. First, they take issue as to whether the defendant came to own the Barker Road Property since the 1970s. As shown by document, the Barker Road Property was assigned to the defendant by Altadena Limited on 27 March 1975, albeit for reason which is not clear, another assignment of the Barker Road Property was executed on 2 January 1997 as between the Financial Secretary Incorporated and the defendant for assigning the Barker Road Property to the defendant at nil consideration. In any event, I agree that the point is immaterial when there is no doubt that the defendant was and is the registered owner of the Barker Road Property.

33.Secondly, the plaintiffs made the allegation that the Barker Road Property is the matrimonial home of the defendant and D’s Wife and thus D’s Wife as the defendant’s spouse has interest in the same. As a legal proposition, this is plainly incorrect. The starting point is that“equity follows the law, and the beneficial ownership of the property is held in the same way as the registered legal estate in the property” (Snell’s Equity, §24-049). Insofar as anyone (including the plaintiffs) claim that the beneficial ownership of the Barker Road Property is different from legal ownership, the burden of proof is on the person who raises the claim to establish this: see Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327, at §17, per Kwan JA(as her Ladyship then was); see also Stack v Dowden [2007] 2 AC 432, at §§4 and 5 per Lord Hope,and §68 per Lady Hale. If the plaintiffs contend that the defendant is not the sole beneficial owner of the Barker Road Property, the plaintiffs should support their allegation with evidence. It is not for the defendant to prove the negative.

34.Thirdly, the plaintiffs make the point that D’s Wife and Dr Konrad Li do not confirm that they have no interest in the Barker Road Property. This is a false point. The fact is that D’s Wife makes no claim on the Barker Road Property. She has read the defendant’s 1^st Affirmation and made her affirmation in support of D’s Application. Likewise, Dr Konrad Li has made no claim over the Barker Road Property. He has also read the defendant’s 1^st Affirmation. In the defendant’s 1^st Affirmation, the defendant has made the express statement that he is the sole legal and beneficial owner of the Barker Road Property. D’s Wife and Dr Konrad Li take no quarrel with that. Moreover, the mere fact that a property is a matrimonial home does not per se confer any interest on the spouse who is not the legal and beneficial owner of the property. She may have a claim when seeking ancillary relief. However, there is simply no evidence of any divorce proceedings between the defendant and D’s Wife. Further, one cannot see why it can be said that simply because Dr Konrad Li resides at Barker Road Property, he may have an interest in it.

35.To put the matter beyond dispute, at the hearing, the defendant further offered that the Injunction should only be discharged on the further condition that D’s Wife and Dr Konrad Li should each make an affirmation to be filed with the court and served on the plaintiffs confirming that they have no legal and/or beneficial interest in the Barker Road Property.

36.Fourthly, the plaintiffs made use of the evidence of the defendant and D’s Wife that the children of the defendant’s first marriage might clamour for a share of the defendant’s assets. This is not a valid point. What the defendant and D’s Wife have said about the familial discord when they talked about the sale of the Village Road Property cannot be read in any way that the children of the defendant from the first marriage can have any legal claim over the defendant’s assets, in particular the Barker Road Property.

37.Fifthly, the plaintiffs seem to be making a claim that there can be other persons who may have interest in the Barker Road Property. The only matter raised in support of the allegation is that these persons have used the Barker Road Property as their address in the company records. Indeed, in the past correspondence, SW have even asked for declarations from these people to confirm that they have no interest in the Barker Road Property. This is again a non-point. These persons mostly are family members of the defendant (including the defendant’s demised parents). There is nothing surprising that they have used the Barker Road Property as their address at the company records. In any event, it is a quantum leap to suggest that the mere use of an address in a company record can signify any proprietary interest in the property at that address.

38.Finally, the plaintiffs rely on the guarantee given by Dr Konrad Li for the overdraft loan granted by UOB to the defendant and D’s Wife as secured by the Barker Road Property, to contend that Dr Konrad Li may have an interest in the Barker Road Property by way of subrogation if the defendant defaults in repaying the loan to UOB. This is again a non-point. There is simply no evidence that the defendant and D’s Wife have defaulted in repaying UOB or UOB has called for payment. Indeed, even if that happens, the maximum liability of Dr Konrad Li is just $55 Million which is the total amount of the credit facility. As said below, the market value of the Barker Road Property is more than sufficient to cover $55 Million plus the restrained amount of $80 Million.

Defendant’s net equity in the Barker Road Property is more than $80 Million

39.The plaintiffs take the position that the Barker Road Property would not be sufficient security. In this regard, the plaintiffs’ case is a non-starter.

40.There is no dispute that the Barker Road Property was and is only subject to a mortgage in favour of UOB. As seen from the Banking Facility letter issued by UOB, credit line up to $55 Million would be made available to the defendant and D’s Wife. As at September 2020, around $51 Million credit was advanced under the UOB facilities.

41.The defendant instructed RHL to estimate the value of the Barker Road Property. Separately, the plaintiffs have adduced some evidence on the value of the Barker Road Property, see:

(1)  RHL’s 1^st Report, stating that the market value of the Barker Road Property as at 11 June 2019 was $362 Million;

(2)  RHL’s 2^nd Report, stating that the value of the Barker Road Property as at 13 January 2021 was $349 Million;

(3)  The plaintiff’s reference to an actual sale of a property at Altadena said to be similar to the Barker Road Property in December 2019 at $245 Million;

(4)  An indicative valuation made by HSBC on 26 January 2021 that the Barker Road Property was worth $230 Million;

(5)  The 1^st plaintiff quoted some unnamed “real estate professionals” in a newspaper article that “the property market could suffer a double hit, particularly at the luxury end, with some predicting a slide of 10 per cent for top properties.”.

42.Hence, as a matter of simply arithmetic, even if one takes the lowest valuation given by the plaintiffs which is $230 Million and there is a further drop of 10% in the future, the defendant’s net equity in the Barker Road Property is still much more than $80 Million:

ie $230 Million x 0.9 - $55 Million = $152 Million

43.In the premises, it is difficult to understand on what basis the plaintiffs can say that the Barker Road Property is not a sufficient security for the plaintiffs’ enforcement of judgment if they are going to obtain one.

Plaintiffs are unreasonable in rejecting D’s Undertaking

44.As D’s Undertaking is more than sufficient to cover the plaintiffs’ claim, there cannot be any valid reason for the plaintiffs not to accept D’s Undertaking so as to avert unnecessary satellite litigation. However, the plaintiffs have steadfastly rejected the defendant’s offer of D’s Undertaking. The fact is that on 3 June 2019, H&C have written to SW to ask why the plaintiffs have not taken any step to ascertain the value of the Barker Road Property when they applied for the Injunction, and offered on 13 June 2019 to dispose of the Injunction by providing D’s Undertaking. The offer was repeated in December 2020, 14 January 2021, and 26 January 2021. However, the plaintiffs unreasonably ignored the defendant’s offer and instead tried to make use of the offer to fish for document and evidence as can be gathered from SW’s letter of 17 June 2019. By SW’s letter of 21 December 2020, the plaintiffs have asked for updated valuation report, updated UOB statement and the defendant’s confirmation that he was the sole beneficial owner of the Barker Road Property. However, notwithstanding the defendant has complied with the request by H&C’s letter of 14 January 2021 enclosing RHL’s 2^nd Report and stating unequivocally that the defendant has always been the sole beneficial owner of the Barker Road Property, the plaintiffs have not accepted the defendant’s offer of D’s Undertaking and hence D’s Summons came to be taken out.

45.The plaintiffs have tried to defend their position by accusing the defendant of failure to provide information and documents as requested. However, I agree that the plaintiffs’ requests were too wide and unreasonable and smack of being a fishing expedition. The plaintiffs have made various requests for information and documents when the defendant asked for acceptance of D’s Undertaking, variation of the spending limit or release of the defendant’s bank accounts (including a joint account with D’s Wife) from the Injunction. This actually culminated in a request of the plaintiffs that the defendant should provide an affirmation disclosing all his assets. The defendant simply has no obligation to make disclosure of his asset position unless ordered by the court to do so. The plaintiffs’ request in fact misses the point, when the only question is whether sufficient “security” has been provided by the defendant’s offer of D’s Undertaking in lieu of the Injunction.

46.In the premises, the defendant asks for the discharge of the Injunction subject to D’s Undertaking which should in turn be subject to the plaintiffs’ cross-undertaking as to damages. The original undertaking given in the Injunction may not cover D’s Undertaking. This last proposition is accepted by the plaintiffs’ counsel.

D’s Undertaking less effective than the Injunction?

47.For the plaintiffs to argue that D’s Undertaking is less effective than the Injunction in the event the defendant passes away before conclusion of the present proceedings, the plaintiffs need to show that the personal representative of the estate of the defendant (the “Personal Representative”) is automatically bound by the Injunction but not D’s Undertaking. Clearly this is not the case.

48.First, injunctions operate in personam: see Snell’s Equity, §18-007. Mareva injunctions in particular operate in personam to prevent the named party from dealing with his assets, and do not give the claimant any proprietary interests in the defendant’s assets: see Snell’s Equity, §18-071. Thus, once the party dies, the injunction will lose its effect. See:

(1)  Elsley v J G Collins Insurance Agencies [1978] 2 SCR 916, at 929, where Dickson J noted that:

“The injunction granted at trial and continued by the Court of Appeal ceased to have effect with the death of Elsley, after the judgment of the Court of Appeal. Proceedings in this Court were continued by his widow as executrix of his estate.”

(2)  Apostolos Andreas Shipping Company Ltd v Registrar of Titles, BC8900895 (unreported, Western Australia Supreme Court, 6 October 1989), where a judgment creditor obtained a Mareva injunction against a Mr Shaikh, and caused a caveat to be registered against the title of a landed property. It was held at page 3 of the Lexis transcript that:

“In its terms, the caveat purported to forbid the registration of any person as transferee or proprietor of the estate or interest of Maqbool Ahmed Shaikh, and of any instrument affecting the said estate or interest absolutely. The Caveat was founded upon the injunction granted on the 13^th December 1984 against Shaikh. That injunction operated in personam and, upon the death of Shaikh, it ceased to have any effect in law. Upon Shaikh’s death, his interest in the property was extinguished so that there was no such interest or estate as was referred to in the injunction.” (Emphasis supplied)

49.Second, as noted in Lewin on Trust (20^th Ed), Volume 1, §24-029, citing Guardian Trust and Executors Company of New Zealand Ltd v Public Trustee New Zealand [1942] AC 115 at 127:

“…[I]f a trustee or other person in a fiduciary capacity has received notice that a fund in his possession is, or may be, claimed by A, he will be liable to A if he deals with the fund in disregard of that notice should the claim subsequently prove to be well founded.”

50.Thus, in the event that the defendant passes away before determination of the present proceedings, provided that the plaintiffs draw the attention of the present claim to the Personal Representative (and there is no reason to suggest that the plaintiffs will not be able to do so), it will be most extraordinary for the Personal Representative to risk being personally liable for the plaintiffs’ claim and to distribute all the assets of the Estate, whether the Injunction is still in place or is substituted by D’s Undertaking.

51.In any case, if the defendant passes away before conclusion of the present proceedings, the plaintiffs are at liberty to apply for another Mareva injunction after the Personal Representative has been appointed (if the plaintiffs can prove risk of dissipation on the part of the Personal Representative). It is wrong in principle for the plaintiffs to argue that because the defendant may pass away, the defendant is not entitled to offer an undertaking in lieu of an injunction at all. Taking the plaintiffs’ submissions to their logical extreme, the court should never accept any undertaking because the person giving the undertaking may pass away any time. This cannot be right.

52.My view is fortified by Practice Note 29/1/36 of the Hong Kong Civil Procedure 2022, which stated that a consent order made on an undertaking voluntarily given to the court by the defendant in the terms of the notice of motion or summons and an injunction are, in effect, the same thing.

53.Similarly, Practice Note 45/5/3 of the Hong Kong Civil Procedure 2022 stated that an undertaking given to the court is equivalent to an injunction, and its breach may be punished in the same way as the breach of an injunction.

CONCLUSION

54.For the reasons set out above, I would allow the defendant’s application for a conditional discharge of the Injunction.

55.I order that the Injunction against the defendant granted by the order dated 28 May 2019 under Intended Action No 76 of 2019 (now HCPI 180/2019) and continued by the order dated 30 May 2019 be discharged subject to:

(1)  an undertaking by the defendant not to induce further encumbrance over or to sell or deal with the Barker Road Property in any way before determination of the proceedings herein; and

(2)  the defendant procuring (a) Dr Konrad Li and (b) D’s Wife to each make an affirmation to be filed with the court and served on the plaintiffs within 14 days from the date of this order or the day after the termination of the general adjournment of proceedings (GAP), whichever is the later, confirming that they have no legal and/or beneficial interest in the Barker Road Property.

56.I see no reason why costs should not follow the event. I order that the costs of D’s Summons (including all costs reserved, if any) be paid by the plaintiffs to the defendant, such costs are to be taxed if not agreed with a certificate for 2 counsel.

57.The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

58.Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.

Mr Raymond Leung, SC, leading Mr Eric Tsoi, instructed by Messrs Deacons, for the plaintiffs

Mr C Y Li, SC, leading Mr Leon Ho, instructed by Messrs Hon & Co, for the defendant