Xy, Llc v. Jesse Zhu (also known as Jia-bei Zhu and Jesse Jia-bei Zhu) and Another

HCA 3039/2016

[2023] HKCFI 1317

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3039 OF 2016

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J U D G M E N T

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A.  INTRODUCTION

1.Before the court are:

(1)  an appeal (the “Appeal”) by the 2^nd defendant (“GNT”) against the decision of Master Dick Ho on 29 December 2022 dismissing GNT’s application for security for costs (the “Security Summons”) against the plaintiff; and

(2)  GNT’s summons dated 11 April 2023 (the “Amendment Summons”) for leave to amend the Defence as per the draft Amended Defence attached thereto.

B.  THE APPEAL

2.The Appeal is made on the broad basis that the plaintiff is ordinarily resident out of jurisdiction. GNT initially claimed HK$4,558,602 up to CMS but the revised claim is HK$4,498,602.

3.The plaintiff opposes by the Affidavit of Juan Moreno (“Moreno’s Aff”). In gist, the plaintiff says it is in a “special position” as a judgment creditor with a claim of overwhelming merits; and having regard to the overall circumstances, security ought to be refused: Moreno’s Aff at §4. The plaintiff also disputes the quantum claimed.

4.The relevant background has been set out in the plaintiff’s Skeleton Submissions as follows.

5.The plaintiff is a Delaware company carrying on business relating to sex sorting technology. On the other hand, the 1^st defendant herein (“Zhu”) is a Canadian businessman who was the ultimate majority owner of Jingjing Genetics Inc (in British Columbia), whereas GNT is a BVI company holding an account in HSBC Hong Kong. It is the plaintiff’s case that Zhu is the beneficial owner of GNT and its assets.

6.On 2 March 2012, the plaintiff obtained Judgment in the Supreme Court of British Columbia against Zhu and others (not including GNT) after trial for inter alia, deceit or civil fraud and conspiracy with special costs order (the “Monetary Judgment”). The judgment sum amounted to approximately HK$50 million.

7.Zhu unsuccessfully appealed the Monetary Judgment to the Court of Appeal of British Columbia as against Zhu and a Ms Selen Zhou (whilst ordering a retrial regarding other corporate defendants). The appeal eventually went to the Supreme Court of Canada, resulting in the application for leave to appeal being dismissed on 20 February 2014.

8.On 28 February 2014, the plaintiff and Selen Zhou reached an agreement to the effect of limiting her liability to CAD $500,000 in return for her provision of information to assist the plaintiff’s enforcement of the Monetary Judgment.

9.On 25 March 2014 the plaintiff commenced action in British Columbia to enforce the Monetary Judgment as a judgment creditor of Zhu and with the information provided by Selen Zhou, the plaintiff also named GNT as a defendant therein (the “Recovery Action”). It was pleaded that Zhu was beneficially entitled to GNT’s shares and that the latter was the former’s alter ego such that its separate corporate identity could be ignored, with its assets treated as the property of Zhu.

10.On 27 March 2014 the plaintiff obtained a worldwide Mareva injunction against both Zhu and GNT covering GNT’s HK Account. On 3 September 2015, the plaintiff obtained default judgment against, inter alios, GNT (“Canadian Judgment”):

(1)  Adjudging that Zhu & GNT and the other defendants are jointly and severally liable to the plaintiff for the Monetary Judgment;

(2)  Declaring that GNT holds its assets, including any funds, on trust for Zhu; and

(3)  Continuing the Canadian Mareva Injunction until such time as the judgments in the original action and the Recovery Action have been satisfied.

11.On 5 October 2015, a Notice of Appeal was issued by a firm of lawyers on behalf of, inter alios, GNT against the Canadian Judgment. In or around October 2016, as no steps were taken by GNT in its appeal, the Court of Appeal placed it on the inactive list. Nothing was done further and the appeal was dismissed as abandoned.

12.On 7 April 2014, the plaintiff obtained a mirror Mareva injunction in Hong Kong in HCMP 869/2014 (the “S21M Proceedings”), which also covered the HK Account (“HK Injunction”).

13.On 13 November 2015, Au-Yeung J dismissed GNT’s application to discharge the HK Injunction and granted disclosure order against GNT (the “Discharge Decision”).

14.On 21 November 2016, the plaintiff commenced this action against Zhu and GNT.

15.Thereafter, on 5 December 2016, the Court of Appeal dismissed the appeal against the Discharge Decision (the “Appeal Decision”). The Court of Appeal and the Court of Final Appeal both refused leave to further appeal the matter on 29 March 2017 and 11 August 2017 respectively.

16.On 6 February 2018, GNT filed a Defence in this action.

17.On 4 July 2018, this court further dismissed GNT’s application for release of fund in HCMP 869/2014 allegedly to pay legal costs (the “Fund Decision”). GNT applied for leave to appeal against the Fund Decision but never took steps to pursue the same.

18.The relevant legal principles are trite. However, it is still necessary to highlight that the court should have regard to all the circumstances of the case in the exercise of its discretion under Order 23, rule 1(1) of the Rules of the High Court (“RHC”). In particular, (i) security cannot now be ordered as of course from a foreign plaintiff, but only if the court thinks it is just to order such security in the circumstances of the case; and (ii) a major consideration is the likelihood of the plaintiff succeeding. If the plaintiff’s claim is “genuine and strong”, no order for security would be granted. On the other hand, an order for security would usually be granted if the plaintiff cannot clearly demonstrate that it has a high degree of probability of success at trial. The court will also consider the defendant’s prospects of success and whether it has an arguable defence. See: Hong Kong Civil Procedure 2023 at Practice Note 23/3/3. See also a useful summary in China Medical Technologies Inc v Wu Xiaodong [2022] HKCFI 3237 at §§17-21.

19.The threshold on the plaintiff in demonstrating the probability of success is said to be “very high indeed”. As K Yeung J held in The National Trust Ltd v Tahoe Investment Group Co, Ltd and Others [2021] HKCFI 2617, §25 (citing the Judgment of Kwan J (as she then was) in PT Graha Multimulia Cemerlang v Silver Tech Enterprise Limited, HCCW 883/2004 (unrep, 1/03/2005)) as follows:

“In respect of such a plaintiff [referring to a plaintiff ordinarily resident out of the jurisdiction], if they want to rely on the merits of their case to resist the application, they need to show, without embarking upon a detailed analysis of the merits, that they have a high probability of success. The threshold for establishing this is ‘very high indeed’. As explained by Kwan J (as the V-P then was) in PT Graha at §6:

‘It must be borne in mind that the threshold of demonstrating the probability of success in this situation is very high indeed. As was mentioned by the court in a number of instances, the practice of going into the merits of the case in an application of this kind is to be deplored, unless it can be clearly demonstrated one way or other there is high probability of success or failure…’”

20.That said, as explained in the decision of China Medical (Supra) at §26, whilst the court will not conduct a “mini-trial” or to make a “preliminary run” at deciding the ultimate result:

“… But this does not mean that the court will simply ignore the merits of the case altogether when the terms of RHC O 23 r (1) and s 905 CO mandate the Court to have regard to all the circumstances of the case and decide whether it is just to order security for costs. Hence, this court is entitled, in the exercise of its discretion, to take into account the merits of the Plaintiffs’ claim. In so doing, this court will concentrate on the evidence filed by the parties in relation to this application.” (Emphasis added)

Discussion

21.I do not agree with the plaintiff’s submission that the plaintiff is in a “special position” as a judgment creditor vis-à-vis GNT.

22.GNT has never submitted to the jurisdiction of the Canadian Court. Accordingly, the default judgment that the plaintiff obtained in the Recovery Action is not enforceable against GNT in Hong Kong: Dicey, Morris and Collins on The Conflicts of Laws (16^th edn), §§14R-058, 14-059, 14-126 to 14-128.

23.As pointed out by the Hong Kong Court of Appeal in the Appeal Decision (CACV 11/2016 (unrep, 5/12/2016)), §13:

“… Although the notice of claim in the Recovery Action was duly served on GNT in the BVI, it was not served on GNT within Canada. As GNT chose not to appear in the Canadian proceedings and its application to set aside the [Canadian Judgment] was not taken on the merits, [GNT] has not submitted to the jurisdiction of the Canadian Court. Hence there was no competent in personam jurisdiction recognised in Hong Kong for the domestic enforcement of the [Canadian Judgment] under the common law regime. …” (Emphasis added)

24.It follows that in this action, the plaintiff is obliged to litigate with GNT in Hong Kong from scratch its claim that Zhu is the sole beneficial owner of the funds in GNT’s HK Account, before being able to execute the Monetary Judgment against such funds (§17 of the Fund Decision in HCMP 869/2014 (unrep, 4/07/2018)).

25.Plainly, the plaintiff is not a judgment creditor of GNT in Hong Kong, and does not enjoy any “special position” as such.

26.That said, I agree with the plaintiff that it has a high probability of success in this action against GNT.

27.The merits of the plaintiff’s case against GNT has been thoroughly analysed by the Court of First Instance and the Court of Appeal in respectively the Discharge Decision (HCMP 869/2014 (unrep, 13/11/2015)) and the Appeal Decision (CACV 11/2016 (unrep, 5/12/2016)).

28.In the Discharge Decision, Au-Yeung J had clearly found that there was a good arguable case that GNT’s asset were beneficially owned and controlled by Mr Zhu (at §31). Further, the court found that:

(1)  “There were assets of Jesse Zhu within the jurisdiction of Hong Kong. There was also evidence before L Chan J … that GNT was held by nominees for Jesse Zhu. So GNT was joined under the Chabra jurisdiction of the court …” (at §28);

(2)  “There was a good arguable case that the Monetary Judgment can be enforced in Hong Kong and, specifically, against GNT as an asset of Jesse Zhu. The HK Mareva mirrored the Canadian Mareva” (at §31);

(3)  “I repeat the matters in paragraphs 25-31 above. For this hearing, further evidence has been filed. There was evidence from Ms Zhou, James Yang and Kevin Xu (the “ex-employees”) who gave affirmations as to entities (including GNT) controlled/owned by Jesse Zhu. Their sworn evidence together with the emails between them and Jesse Zhu did not just show Jesse Zhu to be actively involved in the business of GNT because of its investment relationship with the IND group. There was evidence in the form of, for example, an email from Jesse Zhu to Ms Zhou to set up a bank account at the HSBC in order to receive substantial funds for GNT. The evidence reinforces a good arguable case that although Jesse Zhu has never been a director or shareholder of GNT, he controlled or owned GNT.” (Emphasis added) (at §33);

29.In the Appeal Decision, the Court of Appeal further affirmed the good arguable case that the funds in GNT’s HK Account are held beneficially for Jesse Zhu (at §§43, 49), in particular:

(1)  “[The plaintiff]’s case rests primarily on the evidence of Ms Zhou and the documents provided by her. The judge has considered GNT’s allegation that Ms Zhou had a strong motive to implicate GNT to reduce her own liability to [the plaintiff] and her evidence should be viewed with suspicion. As the judge has noted, this is an argument that had been raised by Jesse Zhu in the contempt proceedings in Canada and was rejected after a full trial with oral evidence. The judge could discern no basis to form a view different from that of the Canadian court. I am inclined to agree. The judge also examined the evidence before her independently. She was entitled to give such weight to Ms Zhou’s evidence as she saw fit, including the clear statement from Ms Zhou that Jesse Zhu was at all material times the beneficial owner of the assets of GNT.” (Emphasis added) (at §42);

(2)  “It is highly significant that Jesse Zhu was in control of the HK Account, that he was operating it, and was free to use the monies as he wished. In contrast, the directors of GNT had no access to the HK Account and had never provided instructions about the operation or handling of the bank account opened in the name of GNT.” (Emphasis added) (at §44);

(3)  There was evidence “showing that the assets of Jesse Zhu were to be transferred to GNT for the purpose of avoiding execution of his judgment debts. [It is not material] that [the plaintiff] was unable to adduce evidence that assets were actually transferred to GNT pursuant to the instructions in this email and so did not rely on actual transfer for present purpose” (Emphasis added) (at §45);

(4)  “Ms Wang asserted that the funds in the HK Account were proceeds of the repurchase by IND DairyTech of GNT’s shares in IND DairyTech and that GNT was beneficially owned by Peter Wang. She has not adduced material evidence (such as bank statements, company accounts, vouchers and the like) to back up her assertion that the funds in the account came from the proceeds of the repurchase of shares, when she would be in a position to provide such evidence. Other than the fact that there was a substantial sum of $38 million odd in the HK Account when the HK Mareva was continued on 17 April 2014, no information was provided as to when and in what amount or amounts this substantial sum came to be deposited in the account. The court would expect to see a paper trail for the transfer or transfers of $38 million odd into the HK Account. There was none.” (at §46);

(5)  “Even if the funds in the HK Account were proceeds of the repurchase of shares by IND DairyTech, this does not necessarily mean that the funds are the assets of GNT. Ms Zhou’s evidence is to the effect that Jesse Zhu had given away shares to ostensibly unrelated entities, including GNT, to create a false appearance there were other investors in the IPO. That being the case, if her evidence is accepted, GNT would, at least arguably, hold the shares transferred to it gratuitously for the purpose of giving a false appearance on a resulting trust for Jesse Zhu (Prest v Prest at §49), and likewise the proceeds derived from the repurchase of shares held by GNT would be held beneficially for Jesse Zhu.” (Emphasis added) (at §47);

(6)  The Judge was entitled to have “little regard to Ms Wang’s assertion that GNT and its assets were never owned by Jesse Zhu” on the basis of the evidence, viz, “that she had not mentioned the specific source or sources of her knowledge and belief when she deposed to matters well before she became a shareholder of GNT in September 2014 and a director in January 2015. Her subsequent explanation of how she became a director and 50% shareholder in GNT because of ‘internal arrangement’ of Peter Wang’s family and her family (which she called the Wang clan in Qingdao), the details of which are ‘private and confidential’ and which she cannot disclose, does not have the ring of truth about it. Peter Wang had passed away in January 2014, before his wife transferred her shares in GNT to Ms Wang, and before her appointment as a director a few months after that.” (Emphasis added) (at §48)

30.The above findings were affirmed by the Appeal Committee of the Court of Final Appeal (FAMV 21/2017 (unrep, 15/08/2017)) which observed that “It is not in dispute that there is a good arguable case that Zhu beneficially owns GNT, a BVI company. However, GNT contends that no such arguable case had been made out regarding the bank account funds, seeking to distinguish between Zhu’s ownership of GNT and his alleged non-ownership of GNT’s assets. That argument failed below for impeccable reasons given by Au-Yeung J and the Court of Appeal, both of whom found that there was ample evidence to support the existence of the good arguable case in question.” (Emphasis added) (at §6)

31.Although the threshold in question was different, in my view, the findings by the Court of Appeal (especially at paragraphs 44, 45, 47 and 48 of the Appeal Decision) are enough to lead to the conclusion that the plaintiff has a high probability of success against GNT in this action.

32.Moreover, the plaintiff’s position is strengthened by the fact that there are substantial costs order granted in favour of the plaintiff against GNT in the S21M Proceedings, namely, (i) in HCMP 869/2014, a total of HK$620,000 plus one order pending taxation; (ii) in CACV 11/2016, a total of HK$80,155 with one order pending taxation; and (iii) in FAMV 21/2017, one order pending taxation; and it is estimated that the total amount be at least HK$1.5 million conservatively (the “Outstanding Costs Orders”).

33.Mr Horace Wong, SC, counsel for GNT, made the point that there is a 2-year time limit under Order 62, rule 22(7) RHC for the receiving party to commence taxation proceedings. But such time limit is subject to a time extension by the court (see: Order 62, rule 22(7)(b)).

34.Thus, I consider that the Outstanding Costs Orders are available for a set-off, in case costs is awarded against the plaintiff in this action.

35.For the reasons set out above, I would dismiss the Appeal.

36.Further, I make a costs order nisi that the costs of the Appeal be paid by GNT to the plaintiff, such costs are to be taxed if not agreed. The order shall become absolute in the absence of any application within 14 days to vary the same.

C.  THE AMENDMENT SUMMONS

37.The general principles governing applications for amendment of pleadings are well established, and have been summarised by this court in Lai Chik Kun Michael and Others v The Baptist Convention of Hong Kong [2022] HKCFI 728, at §33, as follows:

(1)  It is a guiding principle of cardinal importance that, generally speaking, all such amendments ought to be made “for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in the proceedings”.

(2)  Leave is “readily granted” to amend before trial unless it can be shown that the new claim based on the proposed amendments is bound to fail. Whilst the court is entitled to have regard to the merits of the case, it should only do so when the merits are readily apparent, and are so apparent as not to require prolonged investigation.

(3)  If the proposed amendments are bound to fail, no leave to amend should be granted. In this regard, the court will take the applicant’s proposed pleaded case to the highest.

(4)  Absent any real prejudice, an application to amend (even if late) must be decided on the general principle that the court seeks to adjudicate on the real issues and disputes between the parties; if possible, technical and procedural rules should not stand in the way of allowing the parties to raise their real claims or defences for adjudication.

(5)  Where prejudice is claimed, the burden is on the party opposing amendment to show prejudice. There is no injustice to the opposing party if he can be compensated by costs.

(6)  In giving effect to the underlying objectives, the court should always recognise that the primary aim in exercising its power is to “secure the just resolution of disputes in accordance with the substantive rights of the parties”.

38.In the present case, GNT proposes to amend the Defence as per the draft Amended Defence which essentially adds particulars to the original pleas in relation to Ms Zhou (at §§6-7 and 8C-8E) and the source of the funds in the HK Account (at §§8A-8B). As explained by GNT, these particulars are pleaded on the basis of contemporaneous documents (which have been discovered in the present action), and would assist the court in determining the real question in controversy between the parties.

39.I would allow the application by GNT to amend its Defence and make an order in terms of the Amendment Summons.

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

Mr Ernest Ng, instructed by Messrs Tanner De Witt, for the plaintiff

Mr Horace Wong, SC, leading Ms Kay Seto, instructed by Messrs W K To & Co, for the 2^nd defendant