ANG JIMMY TJUN MIN(suing for and on behalf of all shareholders ofBANNER (CHINA) INVESTMENT COMPANY LIMITED,save and except the 2ndDefendant) v KHOO CHUN KIM

HCA 16/2021 &
HCA 17/2021 &
HCA 1449/2023
HCA 863/2023
(Heard Together)

[2025] HKCFI 2106

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 16 OF 2021

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BETWEEN

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AND

HCA 17/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 17 OF 2021

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BETWEEN

____________

AND

HCA 1449/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1449 OF 2023

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BETWEEN

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AND

HCA 863/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 863 OF 2023

____________

BETWEEN

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D E C I S I O N

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A. INTRODUCTION

1.  This is the global case management (“CMC”) of 4 cases – HCA 16/2021 (“HCA 16”), HCA 17/2021 (“HCA 17”), HCA 1449/2023 (“HCA 1449”) and HCA 863/2023 (“HCA 863”). The subject matters surround the estate (“Estate”) of Mr Ang Tiong Loi, deceased, (“Father”) and companies set up by him before his death in 2008.

2.  The parties before the Court are:

(1) “Jimmy” – the son of the Father and the Plaintiff in HCA 16 and HCA 17;

(2) “Jeffrey” (D1), “Eileen” (D2) and “Mother” (D4) in HCA 16 and HCA 17 (collectively, “Mother’s Camp”); they are also defendants in HCA 1449; Eileen is the wife of Jeffrey, sister of Jimmy, and daughter of Mother;

(3) “Administrator” of the Estate, ie Mr Cheng Tsz Ying, solicitor, appointed by the Court after removal of the executors; the Estate is the plaintiff in HCA 1449 and HCA 863;

(4) “Banner” (ie Banner (China) Investment Company Limited), a nominal defendant in HCA 16 but a substantive defendant in HCA 1449 and HCA 863;

(5) “Leebury” (ie Leebury Investments Limited), a nominal defendant in HCA 17 but a substantive defendant in HCA 1449.

3.  By a letter dated 14 March 2025, this Court invited the parties to address various issues (“the Court’s Letter”). The parties have summarized the following matters for this Court’s disposal at this hearing:

(1) The Administrator should decide whether and how he should participate in the taking of Mother’s deposition (“Administrator’s Participation Issue”);

(2) The taking of Mother’s deposition in HCA 16 and HCA 17 on dates in November and December 2025, which the Court has pencil-marked. This hearing will determine the scope, dates and logistics of the taking of deposition (“Deposition Issue”);

(3) Summonses taken out by Jimmy in HCA 16, HCA 17 and HCA 1449 to have these actions tried at the same time or one after another. These summonses have been stayed by consent of Jimmy and Mother’s Camp pending the appointment of the Administrator. Jimmy seeks to restore these Summonses for determination. (“Try Together Issue”)

(4) Whether HCA 1449 and HCA 863 should be stayed (“Stay Issue”).

B. BACKGROUND

4.  The background has been aptly summarized by Mr CY Li, SC (leading Mr Ken To and Mr Chester Kwan) and I adopt the same.

B1. HCA 16

5.  HCA 16 is a derivative action commenced in 2021 by Jimmy as a minority shareholder on behalf of Banner.

6.  There is no dispute that:

(1) Father and Mother held the shares of Fentham Corporation (“Fenthan”), a BVI company, as joint tenants.

(2) Fentham wholly owned Dynasty Plaza Inc (“DPI”), which in turn wholly owned Gaumnitz Inc (“Gaumnitz”), a Delaware company.

(3) In 1997, Gaumnitz transferred 96,498 shares in MetroCorp Bancshares Inc (“MetroCorp Shares”) to Leslie Looi Meng (“Leslie”) at nil consideration.

7.  The major disputes between Jimmy and Mother’s Camp are:

(1) Whether, despite the joint tenancy at law, the beneficial interest in Fentham was held solely by Father (Jimmy’s case);

(2) Who the beneficiary to the MetroCorp Shares is. On Jimmy’s case, it was Father and now the Estate because Father had provided consideration for the transfer of the MetroCorp Shares to Leslie by way of a deduction to Father’s shareholder account with Gaumnitz. However, according to Mother’s Camp, the transfer of the MetroCorp Shares to Leslie was gratuitous. Gaumnitz remains the beneficiary; alternatively, Father and Mother are joint beneficiaries.

7.  Meanwhile, after Leslie came to hold the MetroCorp Shares, those Shares went through share-splits and the dividends from the Shares were reinvested.

8.  In 2013, Leslie transferred the MetroCorp Shares to Banner, which became the trustee holding the Shares.

9.  In 2014, the MetroCorp Shares were exchanged for shares of East West Bankcorp as a result of a merger.

10.  The subject matters of HCA 16 are (a) 63,000 EWB shares held by Banner; and (ii) funds in the total amount of US$4,125,125.30 (“Banner’s Misappropriated Funds”). It is Jimmy’s case that both of these assets were misappropriated from Banner by Mother's Camp. On his own case, Banner holds the 63,000 EWB shares on trust for the Estate. Jimmy relies on breaches of fiduciary duties, knowing receipt, unjust enrichment and unlawful conspiracy to injure against Mother's Camp.

11.  The key issues are thus:

(1) Whether the Estate or Mother has the sole beneficial ownership of the EWB shares or MetroCorp Shares;

(2) Whether the beneficial ownership of Fentham lies with Mother by reason of survivorship, or with the Estate; and

(3) Even if beneficial ownership of the EWB shares lies with Mother, whether Banner’s Misappropriated Funds can be traced to the EWB shares.

12.  The Mother's Camp raises further defences as to:

(1) Whether there was assent, acquiescence or estoppel which would defeat Jimmy’s claims; and

(2) Whether specific transfers are time-barred.

B2. HCA 1449

13.  HCA 1449 was issued by Jimmy on 11 September 2023 in his then capacity as executor of Father. Jimmy did so despite H Au-Yeung J having observed that it would no doubt be more prudent to wait until the result of the challenge to Jimmy’s executorship was known: Decision in HCMP 598/2021, §§34 and 52. Eventually, Jimmy was removed on 4 December 2023, after a contested hearing. Because of his removal, the writ has not been served as of this hearing[1].

14.  The claim involves Fentham, EWB shares and 2 sums. According to Jimmy, 100% or 50% of the beneficial ownership of Fentham rested with Father. If Fentham is found not to be beneficially owned by the Estate, the Estate claims damages against Mother and Jeffrey for misrepresenting to Jimmy as to the true ownership of Fentham.

15.  Based on the same background matters summarized in HCA 16, the Estate claims ownership of 192,456.45 EWB shares, including the 63,000 EWB shares that form the subject matter of HCA 16 held by Banner.

16.  The Estate also claims 2 sums, (a) US$315,449.81, being dividends from the EWB shares and (b) US$3,106,146.18, being cash payment from the merger. Mother's Camp claims that Banner’s Misappropriated Funds is part of these 2 sums.

B3. HCA 17

17.  This is a derivative action commenced by Jimmy as minority shareholder on behalf of Leebury. Jimmy claims that there had been a number of misappropriations of Leebury’s assets by Mother's Camp:

(1) Funds amounting to US$5,860,134.84, SGD 6,303,783.74, GBP 1,801.67 and AUD 675,534.21 (“Leebury’s Misappropriated Funds”);

(2) 260,000 shares of Overseas-Chinese Banking Corporation Ltd (“OCBC Shares”); and

(3) Loans drawndown, totalling SGD 1,653,847.67, which were not used for the benefit of Leebury but were disposed of to third parties (“Leebury’s Misappropriated Loans”).

18.  The causes of action are breach of fiduciary duties, dishonest assistance, knowing receipt, unjust enrichment and unlawful conspiracy to injure on the part of the Mother's Camp. The Estate seeks damages representing the misappropriated assets.

19.  Mother’s case is that she has had control over Leebury after Father’s death. She was thus at liberty to use the assets (including the alleged Leebury’s Misappropriated Funds and OCBC Shares) as she deemed fit. Leebury’s Misappropriated Loans were repaid by her funds. Eileen was not in active management of Leebury. Mother's Camp further raises defences of (a) assent, acquiescence and estoppel, which would defeat Jimmy’s claims; and (b) time-bar regarding specific transfers.

B4. Claims in HCA 863

20.  This action was commenced by Jimmy in his then capacity as executor of the Estate. The claim is by the Estate over the ownership of Shanhai Jinshun Real Estate (上海金順房地產), a company incorporated in Mainland China and is currently held by Banner.

B5. Summary of the various actions

21.  From the analysis in Section B, it can be seen that HCA 17 is a standalone action despite a prior order to have it tried together with HCA 16. None of the parties request that HCA 863 be consolidated or tried together with the other 3 Actions. There is substantial duplication of factual disputes and reliefs sought in HCA 16 and HCA 1449.

C. ADMINISTRATOR’S PARTICIPATION ISSUE

C1. Administrator’s position

22.  By 4 letters dated 11, 15, 16 and 22 April 2025 from the Administrator to solicitors of Jimmy and Mother's Camp, the Administrator set out his stance on Q1-4 in the Court’s Letter:

(1) The Administrator will not oppose or participate in the taking of Mother’s deposition in HCA 16 and HCA 17.

(2) He intends to stay neutral, leaving the beneficiaries of the Estate to litigate among themselves in HCA 16 and HCA 17.

(3) He will take up HCA 1449 and HCA 863. He intends to seek counsel’s advice before taking further steps in HCA 863.

(4) He asks for a stay of HCA 1449 pending the determination of HCA 16 and HCA 17.

(5) He will not take out any Beddoe applications in relation to HCA 1449 and HCA 863 for the time being. He will seek counsel’s advice or wait until determination of HCA 16 and HCA 17 before taking out any Beddoe application. However, he will do so if he is required by any party to (a) participate in HCA 16; (b) to proceed with HCA 1449 and HCA 863 without waiting for the determination of HCA 16 and HCA 17 and/or (c) lend his name to Jimmy to conduct HCA 1449 and/or HCA 863.

(6) He asked for the consent of the beneficiaries of the Estate to lift the cap of 2.5% of the unadministered assets of the Estate on the costs of the Administrator (“the Cap”) as ordered by Recorder Eugene Fung SC on 26 November 2024 in HCMP 94 and 322 of 2022. The Administrator indicates that he will seek the Court’s directions on the matter if the beneficiaries do not consent, including whether the Cap applies to (a) counsel’s fees and other out of pocket expenses; and (b) the costs of the Administrator incurred up to this CMC.

C2. Legal principles on administrator’s duties

23.  The legal principles on a personal representative’s duty to get in the assets of the estate are not in dispute. Once again, I adopt the summary of Mr CY Li, SC.

24.  The trustee owes a primary duty to get in the trust property, place it under his own control and administer it according to law: Lewin on Trusts (20^th ed) at §§34-001, 34-015; Williams, Mortimer & Sunnucks (22^nd ed) at §38-20.

25.  It is the duty of the administrator, not that of the beneficiaries, (be they “majority” or “minority”) to get in the assets of the estate: Chui Pak Ming Norman v Leung Sai Lun Robert (unrep., HCMP 7845/1999, 5 October 2000), Yuen J (as she then was) at §§41-42; upheld by the Court of Appeal in [2001] 2 HKC 286 at 294H. There, the Court of Appeal stated:

“It is the duty of administrators to get in the assets of the estate, not the duty of beneficiaries, be they “majority” or “minority” beneficiaries.

In my view, it would be a wrongful exercise of this Court’s discretion if it were to release the Administrators from that duty in the light of the case that has been made against the 5^th and 8^th Defendants, and to leave it to the other beneficiaries to assume 100% of the incidence of costs in an action which will no doubt be expensive. An administrator’s duty to each beneficiary is the same. “Minority” beneficiaries have as much right of the proper exercise of administrators’ duties as do “majority” beneficiaries.”

26.  In a case where the trustees are not bare trustees, the position is more complicated. If the trustees fail to pursue a claim which is vested in them in their capacity as such, then a beneficiary may commence an administration action against the trustees to compel them to take proceedings to enforce the claim. If a serious question arises as to whether or not the trustees ought to sue, then the court will determine the question in accordance with the principles applicable to Beddoe proceedings. If the court in the administration action is satisfied that the claim ought to be brought, then it may direct the trustees to sue or give liberty to the beneficiary to use the trustee’s name, or appoint a receiver who will use the trustee’s name. See Lewin on Trusts, 20^th ed, at §47-005.

C3. Administrator’s participation in HCA 16

27.  The Administrator acknowledges the need to take up HCA 1449 but not HCA 16. Jimmy does not agree. He thinks that the Administrator should take part in HCA 16 as the Estate has interests in the subject matter and there are common issues in both cases. If the Administrator does not do so, Jimmy will take out an application under Order 85, rule 2 to ask for an order that the Administrator be directed to take part in HCA 16, including the taking of Mother’s Deposition, as well as in HCA 1449. Alternatively, Jimmy asks that the Administrator lends his name to Jimmy to conduct HCA 1449.

28.  As stated above, there is substantial overlap of factual disputes and reliefs sought in HCA 16 and HCA 1449. The issues of tracing of the interest in the EWB Shares and its dividends, Fentham’s beneficial ownership and answering Mother Camp’s defences on assent, acquiescence and estoppel, may not be appropriately dealt with by Jimmy in his personal capacity or that of a minority shareholder of Banner.

29.  Footnote 1 in §4 of the statement of claim in HCA 16 already foreshadowed a claim to be made by the Estate that the EWB shares belong to the Estate. What Jimmy purported to do then, as an executor, was to seek to recover assets for the Estate from third party “wrongdoers” (in this case, Mother's Camp) who also happen to be beneficiaries of the Estate. A “third party” dispute is one with persons, otherwise than in the capacity of beneficiaries, in respect of rights and liabilities assumed by the trustees as such in the course of administration of the trust: Alsop Wilkinson v Neary [1996] 1 WLR 1220, 1224C-D.

30.  Accordingly, HCA 16 is not just a battle between beneficiaries of the Estate or shareholders of Banner in which the Administrator can stay neutral. It is incumbent on the Administrator to consider whether HCA 16 is worth pursuing. If there is, it is the duty of the Administrator:

(1) To take it up as well to seek recovery of assets belonging to the Estate from Banner or the Mother’s Camp; and

(2) To consider whether to have HCA 16 and HCA 1449 consolidated into one action.

The recovery, if successful, will augment the Estate and benefit all the beneficiaries: Chiu Pak Ming Norman (CA), at p295H.

31.  It would be against the principles in Chui Pak Ming Norman to release the Administrator from that duty and leave it to Jimmy to assume 100% of the incidence of costs in a claim which he (as opposed to the Administrator) has no personal capacity to make. A minority beneficiary like Jimmy has as much right to the proper exercise of the Administrator’s duties as the majority.

32.  Accordingly, I agree with Jimmy that the Administrator do participate in HCA 16. The caveat, of course, is that it is subject to funding, indemnity as to costs for the Administrator and any guidance from a Beddoe judge.

33.  Having regard to the fact that Jimmy was removed as executor, asking the Administrator to lend his name to Jimmy to carry on the battle is totally out of the question. The reasons behind the removal speak for themselves: Judgment in HCMP 94/2022 and HCMP 322/2022 [2023] HKCFI 3120, §§30-35, DHCJ Phoebe Man.

C4. Administrator’s participation in HCA 1449

34.  The Administrator seeks a stay of HCA 1449 until after determination of HCA 16 and 17. I agree with Jimmy that there should be no stay, due to the apparent common issues between HCA 16 and HCA 1449. HCA 16 only deals with part of all issues relevant to the full resolution of the Estate’s claims over the EWB Shares and Fentham. The mere fact that HCA 16 is in a more advanced state is not a reason not to have the 2 actions dealt with together.

35.  Mr CY Li SC suggests that the Court can order consolidation now because a cause or matter becomes “pending” as soon as the writ was issued. The Court can exercise its discretion even though one or more of the writs have not been served and even if one action is more advanced in progress whilst the other writ is not even served: Patel v Au, HCA 183/2014 and HCA 2063/2015, §§18, 48 and 65, Zervos J (as he then was).

36.  I have threshed out the idea of having the pleadings of HCA 1449 (or consolidated pleadings of HCA 1449 and HCA16) ready before proceeding with the taking of Mother’s Deposition (“the Deposition Hearing”). Mr CY Li SC even goes further to suggest expediting the process until and including exchange of witness statements. Having heard the submissions, I do not consider these to be desirable or practicable.

(1) The Administrator has only come on board for about 3 months after the letters of administration were granted to him. He is a stranger to the Ang family. He, very fairly, requires investigation and counsel’s advice in charting the course for all 4 cases.

(2) The Administrator is not bound by all that Jimmy has pleaded but should do his own investigation and assess the merits of HCA 16 and HCA 1449. This is especially so when it is necessary to consider consolidation and there are potentially 2 firms of solicitors representing the Estate and Jimmy as plaintiffs.

(3) The writ in HCA 1449 has not yet been served and there is no summons for consolidation. It is pre-mature for the Court to make an order for consolidation without even seeing the Administrator’s statement of claim for HCA 1449.

(4) At this hearing, I have tried to assess the time frame needed for filing of consolidated pleadings before the Deposition Hearing at the end of 2025. Having regard to the various factors in this paragraph, I believe it is unrealistic to expect HCA 1449 (with HCA 16 consolidated) to be prepared up to the exchange of witness statements, before the Deposition Hearing. The fact that Mother's Camp would cooperate over the issue of service of the writ in HCA 1449 does not change my view.

(5) The claims are sizeable. According to Jimmy, the estimated value of HCA 1449 is about HK$119 million, and HCA 16 is about $65 million. Considering the stake, the Administrator may need to seek Beddoe orders and to uplift the Cap. As rightly pointed out by the Administrator, that does not just involve funding for litigation but also indemnity for costs in case he loses. The Beddoe application will take time.

37.  Accordingly, the Administrator should proceed with HCA 1449 without a stay. He should proceed with any necessary Beddoe applications and file and serve a statement of claim or consolidated statement of claim within 6 months (or 3 months if there is no Beddoe application).

C5. Administrator’s participation in HCA 17

38.  Jimmy does not say that the Estate has an interest in any of the transfers out from Leebury. The issues involving the Estate is only incidentally relevant to the defence of Mother’s Camp of set off relying on “transfers in” from Fentham and Banner to Leebury. I make no direction for the Administrator to participate.

C6. Administrator’s participation in HCA 863

39.  The cause of action belongs to the Estate alone. It does not have to wait for the outcome of any other case. Again, subject to proper funding and indemnity for the Administrator and guidance from a Beddoe judge, I do not see the need to stay this action. Of course, there is also the question of manpower that the Administrator can afford to engage himself in several cases at the same time. This should be left to the overall strategy of the Administrator. I do not see the need for the Court’s intervention now.

C7. Beddoe order(s)

40.  Apparently, the Administrator has concerns as to costs. The unadministered assets are valued at about HK$9m to HK$9.5m. The Administrator’s Cap means that he can only spend about HK$250,000 in administration. Even if the Cap does not apply to the Administrator’s disbursements such as counsel’s fees, the HK$250,000 is wholly inadequate to meet the Administrator’s own costs of even one action.

41.  However, concerns as to costs is not a reason not to proceed with his duties. It is simply a wrongful exercise of discretion to release the Administrator from his duty to get in the assets and leave the beneficiaries to assume all the costs of litigation: Chiu Pak Ming Norman, §42. One can thus anticipate the need for the Administrator to apply for funding from the beneficiaries or seek the guidance of a Beddoe judge.

42.  Jimmy, Mother and Eileen have conceded that the Administrator need not obtain a Beddoe order for attending this CMC and the Deposition Hearing. For other matters and/or cases, Mother and Eileen reserve their positions and may decide on a case by case basis. It is for the Administrator to apply to the Court for lifting the Cap, which Mother and Eileen will agree, taking into account the volume of documents which the Administrator has to review and the work done for the CMC.

43.  However, Jimmy submits that the indemnity from the Estate should be subject to the Cap. This is because the Administrator was aware of limited funds in the Estate and there was pending litigation, and yet the Administrator was still willing to be bound by the Cap. Jimmy suggests that there is insufficient basis to lift the Cap. If the Administrator has made a bad deal in agreeing to the appointment, there is no justification for the remuneration beyond the Cap: Darach E Haughey and Lai Kar Yan (Derek) v Lam Mui [2024] HKCFI 924, at §24.

44.  With respect, without assessment of the merits of the litigation and estimates of the Administrator’s costs and disbursements, it is simply unrealistic to embark on the issue of uplifting the Cap. It may be more appropriate to have it dealt with by a Beddoe application. The issue is raised in the Court’s Letter to enable this Court to consider the overall timetable for managing all 4 cases. Suffice to say that costs of this CMC should be paid out of the Estate.

45.  Accordingly, whilst HCA 1449 should not be stayed and consolidation with HCA16 should be considered, it is not practicable to press the Administrator into a pleaded case in less than 6 months. Any issue as to lifting the Cap, funding, indemnity and guidance should be left to the Beddoe judge.

D. TRY TOGETHER ISSUE

46.  Under Order 4, rule 9(1) of RHC, the Court may order causes or matters to be consolidated or to be tried at the same time, or one immediately after another, or may order any of them to be stayed until after determination of any other of them. This is to be approached from the perspective of case management rather than principles of law: Re The Prudential Enterprises Ltd, HCCW 594/1999, HCA 1240/2001 and HCA 4225/2001, §7, Chu J (as she then was).

47.  The Court has an unfettered discretion, but:

(1) It must nevertheless be satisfied that it would be proper and expedient to make the order having regard, in particular, that:

(a) One primary objective of such an order is to save time and costs;

(b) Where there is substantial overlapping of issues and parties, it is desirable to resolve the disputes in the different actions on one occasion by the same judge.

(c) The Court is seeking the avoidance of unnecessary delay, undue complexity and overloading of issues; and

(d) The Court is seeking the avoidance of creating a risk of irreconcilable decisions which would arise from trying actions separately.

(2) There is no hard and fast rule that, just because the parties are identical and some common question of fact or law is involved in both actions, it would be expedient and proper to order consolidation.

(3) The Court should take a practical and common sense approach to meet the justice of the particular situation, in light of the underlying objectives in Order 1A of RHC.

(4) The emphasis is on ensuring the efficient and just resolution of disputes before the Courts.

See Convoy Collateral Ltd v Cho Kwai Chee [2022] HKCFI 3406, Coleman J.

48.  There is an existing order for HCA 16 and HCA 17 to be tried together, but not HCA 1449. That is for obvious reasons because HCA 1449 has not even been served by the time of this hearing.

49.  Mother, Eileen and Jeffrey take a similar position as the Administrator – that HCA 16 and HCA 17 be heard together and, pending their resolution, HCA 1449 be stayed.

50.  Banner and Leebury are nominal defendants in HCA16 and 17. For HCA 1449, Banner[2] has no objection to the Administrator’s stance that HCA 1449 be stayed pending resolution of HCA 16 and HCA 17.

51.  Jimmy suggest that there be an order for consolidation or trying together in respect of (a) 3 actions, ie HCA 16, HCA 17 and HCA 1449; or (b) 2 actions, ie HCA 16 and HCA 1449.

52.  At this hearing, it becomes quite apparent that HCA 17 can in fact stand on its own, despite a “heard together order”.

53.  As stated above, I take the view that it is for the Administrator, upon taking up HCA 1449, to take out a consolidation summons, if considered appropriate. The fact that HCA 16 is in an advanced stage should not preclude consolidation if it is in the interests of justice to do so. I reserve my comments until I see the consolidation summons. It is best to adjourn the Try Together Summonses sine die with liberty to restore after the filing of the Administrator’s statement of claim and/or consolidation summons (whichever is the earlier) in HCA 1449.

E. DEPOSITION ISSUE

54.  Mother is a material witness on issues relating to the running of Banner, Leebury, her relationship with Father and how they operated the companies, the EWB Shares, Fentham and Gaumnitz. Her evidence will be useful to HCA 16, 17 and 1449. She is aged 86. It is important to have her evidence preserved as soon as possible. Witness statements have been exchanged in HCA 16 and 17. In HCA 16, expert directions on BVI law, Texas law and accounting evidence are sought, but that has no impact on the factual evidence or the appropriateness of taking Mother's Deposition.

55.  The Administrator has an interest in HCA 16. He should attend the Deposition Hearing. He should attend as an “Interested Party” instead of “third party”, until he formally takes up HCA 16. Given the Estate’s interest, at least in the EWB Shares, the Administrator’s failure to attend may cause him to lose a valuable chance of obtaining evidence from Mother to enable him to assess the merits of the claims in HCA 16 and HCA 1449.

56.  Mother, Eileen and Jeffrey propose that 5 days would be a reasonable estimate that will not overstress Mother.

57.  Jimmy suggests that Mother’s Deposition be taken in HCA 17 as a standalone action. It will be more conducive to the proper conduct of the proceedings if Mother’s evidence can be taken for HCA 16 and HCA 1449 together because of the common subject matter. 7 days would be required for HCA 16 and HCA 17, and further reduced to 5 days if it only covers HCA 17.

58.  Whilst Jimmy’s suggestion sounds attractive, one must remember the race with time. HCA 16 is in an advanced stage whereas HCA 1449 is in an embryo stage. HCA 16 is plainly the more important action and the Deposition will benefit HCA 1449 as well. The Deposition Hearing in HCA 16 should not be delayed. For good grounds, the Court may give another opportunity for Mother to supplement her evidence when the pleadings in HCA 1449 are formulated. Banner and Leebury are of course entitled to attend the Deposition Hearing.

59.  Given the participation of the Administrator and that he will not lend his name to Jimmy, I place a marker here that Jimmy has to be prudent in avoiding duplication of costs on issues that belong to the Estate.

60.  I direct that 6 days be reserved for the Deposition Hearing, to be broken up into 2 sessions, each of 3 days.

61.  As the hearing is only for the limited purpose of taking deposition, the opening submission which the parties are to lodge should be limited to no more than 5 pages (with double-sided printing, of font size 14 and 1.5 line spacing) for the Administrator, Jimmy and Mother’s Camp respectively.

62.  There are video/audio recording produced. If a party seeks to rely on any of the video/audio recording to cross-examine Mother (whether on specific issues or for the context of the conversation), such party shall:

(1) Not less than 28 days before the provision of the hearing bundles, produce the transcript of the relevant part of recording/audio record, if such transcript has not already been adduced. Such transcription shall, as far as possible be agreed. Failing agreement, alternative proposed translation shall be annotated to the transcript within 7 days after the production. Any part of the recording for which no transcript is produced shall be excluded from the evidence, unless the trial judge orders otherwise.

(2) Save as aforesaid, no other video or audio recording or transcript thereof are to be included in the trial bundles without leave of the Court.

63.  Jimmy shall arrange for LiveNotes for the Deposition taking, the costs shall be borne by Jimmy, the Administrator and Mother’s Camp in the first instance, but to be in the cause of the relevant trial.

64.  Mother’s deposition be recorded and a written transcript thereof be produced with the assistance of LiveNotes. The reading of the written transcript to Mother and signing of the same by her shall be dispensed with, and the transcript shall be deemed to be her Deposition.

65.  The directions for the Deposition Hearing will be:

(1) The Deposition Hearing shall be held on 25-27 November and 2-4 December before Au-Yeung J.

(2) Normal sitting hours from 10 am to 4:30 pm shall apply.

(3) Evidence of Mother will be taken in punti.

(4) A table of transactions that Mother will be cross-examined on with page references to the pleadings and documents shall be lodged and served by Jimmy and the Administrator, 2 months before the first day of the Deposition Hearing.

(5) Jimmy shall lodge the bundles and e-bundles to be used at the deposition taking, including one set of core bundles, 2 months before the first day of the taking of Mother’s Deposition.

(6) For the avoidance of doubt, the Administrator and the parties shall be bound by Mother’s Deposition.

F. CONCLUSION

66.  In respect of the 4 issues set out above, my directions are as follows:

(1) With regard to the Stay Issue, there shall be no stay of HCA 1449 or HCA 863;

(2) With regard to the Administrator’s Participation Issue, subject to funding and indemnity for the Administrator, and any directions of a Beddoe judge,

(a) the Administrator shall participate as an Interested Party in HCA 16;

(b) within 6 months (or 3 months if no Beddoe application is required) the Administrator shall file and serve a statement of claim to adopt HCA 1449, or propose a consolidated statement of claim if he seeks to have HCA 1449 and HCA 16 consolidated;

(c) the Administrator shall take out a summons, if so advised, for the consolidation of HCA 1449 with HCA 16 within the same time frame in sub-para (b).

(3) With regard to the Deposition Issue,

(a) the Mother’s Deposition shall be taken in 2 sessions on 24-26 November and 2-4 December 2025;

(b) the directions set out in paragraphs 61, 62-65 above [to be set out in the draft order] shall apply.

(4) The Try Together Summonses are adjourned sine die with liberty to restore after the statement of claim in HCA 1449 is filed by the Administrator or at the same time as the consolidation summons, whichever is the earlier.

G. COSTS

67.  Costs of and incidental to this CMC, including this hearing, be paid out of the Estate to the Administrator.

68.  On a nisi basis, costs of this CMC be in the cause, to be apportioned as follows: 30% each for HCA 16, HCA 17 and HCA 1449; and 10% for HCA 863.

69.  Finally, I wish to give this reminder: documents (even decisions) relating to Beddoe applications should not be disclosed to the trial judge or even the judge taking deposition as they may contain the Beddoe Judge or Administrator’s views as to the merits of a case.

70.  I thank counsel for their assistance.

Mr C. Y. Li SC, Mr Ken To and Mr Chester Kwan, instructed by Hon & Co., for the Plaintiff in HCA 16 and HCA 17/2021

Mr W. Chao, of Wellington Legal LLP, for the Defendant in HCA 863/2023

Ms Ebony Ling, instructed by K.B. Chau & Co., for the 1^st and 2^nd Defendants in HCA 16 and HCA 17/2021, and the 1^st Defendant in HCA 1449/2023

Ms Sabrina Ho and Mr Brian Fan, instructed by P.C. Woo & Co., for the 4^th Defendant in HCA 16/2021 and HCA 17/2021

Mr Cheng Tsz Ying, of T.C. Foo & Co., for the Administrator

The 3^rd Defendant in HCA 16/2021 was not represented and did not appear

The 4^th Defendant in HCA 17/2021 was not represented and did not appear