Goldjet Development Ltd v. Randal Alan Whitecotton and Another
Read the full judgment text of HCA 2337/2018 on BabelCite. This High Court CFI judgment was delivered on 19 November 2025.
1. This is the Plaintiff’s action for recovery of funds illegally transferred from its bank account with Standard Chartered Bank (Hong Kong) Limited (“SCB”) in Hong Kong (the “transferred funds”) to a third party during a kidnapping incident which occurred in the 1 st Defendant’s apartment in Indonesia between 7 and 11 October 2012. The Plaintiff’s case is that the Defendants were the main perpetrators or masterminds of the kidnapping incident during which the Plaintiff’s sole director was detai
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HCA 2337/2018 [2025] HKCFI 5268 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2337 OF 2018 ______________ BETWEEN
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______________ J U D G M E N T ______________
INTRODUCTION Introduction 1.This is the Plaintiff’s action for recovery of funds illegally transferred from its bank account with Standard Chartered Bank (Hong Kong) Limited (“SCB”) in Hong Kong (the “transferred funds”) to a third party during a kidnapping incident which occurred in the 1st Defendant’s apartment in Indonesia between 7 and 11 October 2012. The Plaintiff’s case is that the Defendants were the main perpetrators or masterminds of the kidnapping incident during which the Plaintiff’s sole director was detained and forced to transfer US$2,100,000 from the Plaintiff’s bank account to the bank account of PT Soeria Borneo Resources (“PT Soeria”) and that the Defendants are the ultimate recipients of the transferred funds or their proceeds. A sum of US$468,925 was recovered and returned by the Indonesian police. The Plaintiff now seeks to recover the balance of US$1,631,075 (the “said sum”). 2.The Defendants’ defence is essentially one of no knowledge and denial. They admitted the kidnapping incident occurred, but denied they were parties or ultimate recipients of the transferred funds. They claimed they were wrongly joined as parties to this action. The 1st Defendant’s case is that the Plaintiff is a company held by its sole director and shareholder, Desi Ariani (“Ariani”), as nominee for Soura or Manhattan Beachwear (“MBW”); that the kidnapping incident and the transfer of funds from the Plaintiff was likely to be a “deal-gone-wrong” between Soura and the Indonesian police. He is therefore suggesting that the Indonesian police robbed Ariani as a means of recovery against Soura for money he owed to the police; and that the present proceedings are Soura’s efforts behind the scene and as part of his ulterior motive to recover against the Defendants for funds transferred by Ariani under duress. 3.Initially, the 1st and 2nd Defendants were jointly represented by Messrs Bowers (“Bowers”). However, Bowers ceased to act for the 2nd Defendant on 13 November 2024. The 2nd Defendant also informed the Plaintiff’s solicitors, Messrs Dentons Hong Kong LLP (“Dentons”) by email dated 21 November 2024 that he would no longer participate in these proceedings and has since been wholly unresponsive. Dramatis personae 4.Manhattan Beachwear (“MBW”) is a swimwear company based in the United States (“US”). 5.Goldjet Development Limited (“Goldjet”), the Plaintiff, is a company incorporated in the British Virgin Islands (the “BVI”) on 25 May 2005, as a shelf company by Chandler Partners Limited (“Chandler Partners”), a secretarial services provider. It was acquired by Ariani in about August 2007, but all its corporate documents were backdated to 2005. It holds a foreign currency savings bank account with SCB of which Ariani is the sole authorized signatory. 6.Dolphin Peace Trading Ltd (“Dolphin Peace”) and Lakeway Invest Corp (“Lakeway”) are BVI companies holding the shares of and in the Plaintiff. They were acquired by Ariani in about August 2007. 7.PT Kuta Beachwear (“PT Kuta”) is an Indonesian company. It is held as to 90% by Goldjet and 10% by Ariani. Ariani is its sole director. It replaced PT Natural Selaras as MBW’s captive sub-contractor and major beachwear supplier in about August 2007. 8.PT Natural Selaras was an Indonesian company. It was a captive subcontractor and major supplier of beachwear to MBW. It is held by Admire Best and Sharp Outlook, which until about March 2007 were owned by Sapto and thereafter by Ariani. 9.Admire Best Trading Ltd (“Admire Best”) and Sharp Outlook International Ltd (“Sharp Outlook”) are BVI companies holding the shares of and in PT Natural Selaras. They were formerly owned by Sapto. Sapto’s directorship, shareholding and bank mandates in these companies were transferred to Ariani in February/March 2007. 10.Desi Ariani (“Ariani”) is the sole director and, effectively, sole owner of the Plaintiff through her ownership of Dolphin Peace and Lakeway. She is the sole director and 10% shareholder of PT Kuta. She is also the sole director and shareholder of PT Natural Selaras and its holding companies, Admire Best and Sharp Outlook since February/March 2007. 11.Yunimas is Ariani’s sister. 12.Scott Soura (“Soura”) was a major shareholder and the former Chief Executive Officer (“CEO”) of MBW until 2010 when he sold the majority of his shares and resigned as CEO. He remained as a member of the board of directors until 2020. He sold the rest of his shares in 2012. 13.Allan Colvin (“Colvin”) was the president of MBW between 1986 and 2010. He succeeded Soura as the CEO since 2010, except for a period of about three years between the end of 2016 and the end of 2019. 14.Randal Alan Whitecotton, the 1st Defendant, is a California based lawyer and currently the sole practitioner of Whitecotton Law Corporation. He served as MBW’s contract general counsel handling its various legal matters between 2006 and 2008. Between 2011 and 2012, he assisted MBW in gathering evidence and witness testimony in Indonesia in relation to an insurance dispute between MBW and its insurance carrier litigated before the Superior Court of the State of California in the Orange County in June 2010 (the “insurance proceedings”). 15.Mr Michael Joseph Kenealy (“MJK”) is an operator of a private investigation business in the United States, Indonesia and Philippines. He worked with the 1st Defendant in investigative work in Indonesia between 2006 and 2012, including work in connection with the insurance proceedings. He has many associates in Indonesia, including Mohammed Eddy, Suryadi, Rico Siswandi and a man called ‘David’. 16.Mr Michael Francis Kenealy, the 2nd Defendant in these proceedings, is the father of MJK and a resident of Massachusetts. He was a real estate broker in the United States operating through his company, Key Realty Inc trading as Key Realty. It is the Plaintiff’s case that MJK introduced him to Ariani in June 2012 to assist her in applying for a green card in the United States by making a qualifying real estate investment. He was not in Indonesia at the time of the kidnapping incident. 17.Bambang Sapto Nugroho (“Sapto”) was an Indonesian and the sole director of PT Natural Selaras, Admire Best and Sharp Outlook until March 2007. In that month, the 1st Defendant instructed Chandler Partners to transfer all his shareholding, directorship and bank mandate of Admire Best and Sharp Outlook to Ariani. He was murdered in Jakarta on 23 July 2008. THE SUMMONSES Introduction 18.There were three outstanding interlocutory summonses before the Court. Two of them were taken out by the 1st Defendant at the pre-trial review of this action (the “PTR”) back in April 2025 before Ng J. It was anticipated that these summonses would be heard and disposed of before trial, but they were adjourned for argument to the first day of trial. A third one was taken out on 3 July 2025 four days before trial, also by the 1st Defendant, purportedly in the discharge of his ongoing duty of discovery. There was a fourth summons which was taken out also by the 1st Defendant in the course of cross-examination of Ariani. The 1st Summons 19.By his summons dated 14 March 2025 (the “1st Summons”), the 1st Defendant sought leave to file his Draft 2nd Supplemental Witness Statement introducing new factual evidence regarding (i) what happened during the kidnapping incident after he was allegedly handcuffed by the Indonesian police and taken away from his apartment; (ii) some background information about the renting of his apartment; and (iii) his last telephone call with Soura before the kidnapping incident. The Plaintiff’s principal objection is the serious and inordinate delay on the part of the 1st Defendant in making the application and the prejudice which it entails. The summons was taken out (1) around two and half years after the deadline for taking out interlocutory applications; (2) almost two years after this action was set down for trial; and (3) less than four months before trial. The lateness is indisputable. The prejudice likely to be caused to the Plaintiff by reason of the lateness is obvious. To obtain leave, the applicant must establish by affidavit evidence, exceptional circumstances to explain and justify the delay: Hong Kong Changyi Real Estate Development Ltd v Neo-China (Group) Infrastructure Ltd[1]. 20.It is common ground that the kidnapping incident occurred inside the 1st Defendant’s apartment. The 1st Defendant acknowledged in his 3rd affirmation that the central factual issue in this case has all along been his involvement in the kidnapping incident. None of the matters covered in his Draft 2nd Supplemental Witness Statement is related to recent events. There is no reason why he could not have provided such details in his previous witness statements. 21.The only justification for the delay advanced by the 1st Defendant in his 3rd Affirmation is that (i) his solicitors only formally briefed Mr Sherry, counsel for the 1st Defendant, to conduct the trial of this matter on 16 January 2025 and (ii) Mr Sherry has now advised him to file the further evidence. Change of counsel could not constitute an excuse for the introduction of new evidence at the last minute: Hong Kong Changyi Real Estate Development Ltd v Neo-China (Group) Infrastructure Ltd[2] and Converge Design and Construction Company Limited v Mount Kelly International Limited[3]. As submitted by Ms Lau SC, leading counsel for the Plaintiff, this is particularly so in the present case because the 1st Defendant had ample time and opportunity to consult his legal advisors and to apply for leave to file further evidence well before this action was set down for trial. He has all along been legally represented by Bowers since signing the acknowledgement of service on 12 October 2020 and has retained counsel as early as 25 July 2022 as evidenced by the Certificate of Time Estimates for trial signed by Mr Timothy Parker as counsel for the Defendants. Pursuant to the order of Master Kent Yee dated 24 May 2022, the parties were ordered to file and serve supplemental witness statements within 28 days and to obtain counsel’s advice and take out all further interlocutory applications within 60 days from the date of the order (ie by 25 August 2022). Pursuant to the order of Master Matthew Leung dated 2 August 2022, the parties were directed to obtain counsel’s advice on the whole matter within 28 days and make all interlocutory applications within 28 days therefore, ie by 27 September 2022. Lastly, pursuant to the order of Master Kot dated 21 October 2022, any further interlocutory applications which were required to be taken out as a result of amendment of pleadings should be taken out within 14 days after the Plaintiff filed and served its Amended Reply, ie by 11 January 2023. These proceedings were set down on 19 April 2023 for trial. But, it was not until around two years later that the 1st Summons was filed. There is simply no proper justification for the late filing, let alone exceptional circumstances which the 1st Defendant has to show to invoke the Court’s discretion. 22.At the PTR, the 1st Defendant raised a new explanation for his delay by way of submission, claiming that he did not apply earlier since he did not want to lose his privilege against self-incrimination or provide answers which may expose himself to a risk of conviction and imprisonment. This new explanation is not supported by any affidavit evidence. His 3rd Affirmation filed in support of this application did not state he had any concerns about losing the privilege. Even putting aside the technicality, this explanation is simply untenable. This privilege is only engaged if the information in question would expose a party to a real and appreciable risk of incrimination or prosecution: Sun Man Wai Kennis v Sun David Tse Chien[4]. However, Mr Sherry argues that, as was noted in that case, it is not necessary that there is a pending criminal investigation for the privilege to be invoked and it suffices if the evidence may set in train a process which may lead to discovery of real evidence of a criminal character. Given that the 1st Defendant’s case is that he was a victim rather than the perpetrator of the kidnapping incident, it is difficult to see how the evidence in his 2nd Supplemental Witness Statement would incriminate him at all. His ultimate choice to attempt to adduce the evidence now suggests he has no real concern about privilege. In any event, his argument about privilege does not even begin to explain why it took him two years to overcome his concern about privilege. His explanation is contrived and unconvincing. 23.Lastly, Ms Lau SC submits, quoting Chun Wo Building Construction Ltd v Metta Resources Ltd[5] that in assessing a late application, the Court should take into account the fact that such an application may distract the other party from concentrating on preparing for trial and that this in itself is a recognized form of prejudice. She argues that the prejudice is particularly grave in the present case, as the trial will already have commenced by the time of the Court’s determination of this summons. If the application is allowed, the Plaintiff will have no proper opportunity to address or respond to the new evidence. The scenario pictured by Ms Lau SC, would only arise if this were an eleventh hour application, but it is not. In fairness to the 1st Defendant, the Court cannot lose sight of the important fact that the application had been made four months before trial, albeit it was late. The scenario depicted by Ms Lau SC would not arise had Ng J been able to dispose of the application at the PTR or otherwise arrange to have it determined at any stage before trial. Fortunately, this Court is spared of the burden of having to make a difficult decision because it is satisfied on the basis of the rest of the submission of Ms Lau SC, that the Court’s discretion should not be exercised in favour of the 1st Defendant because of his failure to show exceptional circumstances and justification for the late application. 24.Noting that this is not an eleventh hour application, the Court does not consider indemnity costs justified. Accordingly, the 1st Summons is dismissed with costs to the Plaintiff on party and party basis with certificate for two counsel. The 2nd Summons 25.By his summons dated 1 April 2025 (the “2nd Summons”), the 1st Defendant sought leave to strike out: (1) the witness statement of Colvin filed on 22 March 2022; and (2) the witness statement and supplemental witness statement of Soura filed on 23 March 2022 and 21 July 2022, respectively for being (a) scandalous, frivolous or vexatious; or (b) tending to prejudice, embarrass or delay the fair trial of the action; or (c) being an abuse of the process of the Court; or (d) being irrelevant or oppressive or otherwise containing inadmissible evidence or offending Order 38, rule 2A of the Rules of the High Court. The scope covered by the summons and the grounds pleaded for the striking out are very extensive. The 1st Defendant appears to be seeking to strike out the three statements in their entirety and for all possible reasons. At the hearing, the grounds relied on for the striking out are narrowed down to irrelevance and hearsay. It also appears that the basis of Mr Sherry’s argument is that there is no dispute about the kidnapping incident. 26.As submitted by Ms Lau SC, the factual disputes between the parties are wide-ranging, and are not limited only to the kidnapping incident. Almost every element of the Plaintiff’s factual case is disputed, including, inter alia, (i) the relationship between Ariani and Soura; (ii) whether Soura has masterminded the present claims; (iii) the relationship between Ariani, the 1st Defendant and the 2nd Defendant; and (iv) whether the 2nd Defendant had ever spoken to Ariani. There are altogether twelve items raised in the Plaintiff’s opening submission. As against that, Mr Sherry’s reply is that as Soura said in his witness statement that he does not hold shares in the Plaintiff, he has no financial or personal interest in these proceedings, and is merely exercising a “moral responsibility to assist in the recovery”, it is obvious that his purported evidence is irrelevant and will not assist the court in resolving this matter. I can see no logic in that argument. If that is correct, the evidence of any independent and non-interested witnesses will be categorized as irrelevant. Much of Soura’s and Colvin’s evidence addressed the 1st Defendant’s attacks on the Plaintiff’s case and Ariani’s credibility, particularly her relationship with Soura. The witness statements sought to be struck out are relevant. There is no reason why the Plaintiff should not be allowed to respond. 27.As for the 1st Defendant’s objection to the hearsay evidence, it is solely directed at the telephone conversation between Ariani and Soura about the kidnapping incident. It is now clear from counsel’s submissions that the Plaintiff is not relying on Soura’s evidence to prove what Ariani told him about what happened during the kidnapping incident is true, but on the fact that the call was made shortly after the kidnapping incident as proof that Ariani did not fabricate the kidnapping incident years later. The kidnapping incident is common ground not in dispute. There is no allegation of recent fabrication. The evidence is unnecessary. Hence, I allow the application only to the extent of excluding all evidence about Ariani’s telephone conversation with Soura on 11 October 2012 about the kidnapping incident. 28.Though on the face, the 1st Defendant is successful, in substance he failed. He failed to strike out all three statements in their entirety. The evidence excluded is minimal and of no consequence. Accordingly, I order costs against the 1st Defendant on party and party basis with certificate for two counsel. The 3rd Summons 29.By his summons filed on 3 July 2025 (the “3rd Summons”) four days before trial or just two working days before the commencement of trial, the 1st Defendant sought retrospective leave to file and serve his 8th Supplemental List of Documents dated 26 June 2025 (“Items 43 and 44” in the list) and 9th Supplemental List of Document dated 3 July 2025 (“Items 45 to 49” in the list) and leave to rely on the documents disclosed in those lists at trial. Unlike the 1st and 2nd Summonses which Ng J did not determine at the PTR, this Summons is filed grossly late. 30.The law about late discovery is very well settled. Where discovery is given at the eleventh hour just before trial, it is quite impermissible for the party giving such discovery to do so under the guise of voluntary discovery without seeking leave of the court to give further discovery out of time: Kinetics Medical Health Company Limited v Dr Tse Kin Sang[6]. The burden is on the applicant to show why the court should exercise its discretion to permit the discovery. He has to provide full and accurate information as to why the subject documents were not disclosed earlier, the provenance and maker of the documents and the relevance of the documents to the issue: Kinetics Medical[7]. Absent a good and credible explanation as to why the document was not disclosed earlier, the application may be refused on the ground of delay alone: Converge Design and Construction Company Limited v Mount Kelly International Limited[8]. 31.Item 43 is a photograph showing Ariani, her dog and the 1st Defendant’s dog in Ariani’s home. The photograph is in the trial bundle, but was not properly discovered on a list of document. No explanation was offered for the delay. Probably there was none other than neglect. This item is of little consequence. Despite the lateness, the Court sees no real prejudice to the Plaintiff if discovery is allowed as a matter of indulgence rather than of right. 32.Item 44 is a copy of an agreement dated 18 May 2011 between the 2nd Defendant and other parties whom the Plaintiff reasonably suspects are members of the Kenealy family (ie the 2nd Defendant’s family) or the company under their control. The 1st Defendant relies on this document as evidence to undermine the Plaintiff’s case that he had conspired with the 2nd Defendant to kidnap Ariani. 33.Bowers’ (not the 1st Defendant’s) explanation for the delay is that their firm received a copy of Item 44 on 18 September 2024 and shortly after that it received instructions to cease acting for the 2nd Defendant. Both the 2nd Defendant and his son, MJK, confirmed that the 2nd Defendant no longer wished to participate in these proceedings and asked Bowers not to contact the 2nd Defendant anymore. Bowers received funding to proceed with the cease to act application on behalf of the 2nd Defendant in about October 2024. On 13 November 2024, Bowers obtained a declaration from the High Court that it would cease to act for the 2nd Defendant upon compliance with O.67 r.6(1). Seeing as the provenance of Item 44 was from the 2nd Defendant via his Massachusetts counsel and as it had ceased to act for the 2nd Defendant in this action, Bowers could not compel discovery from the 2nd Defendant any earlier. It was only until 26 June 2025 when they received consent from the 2nd Defendant via MJK to disclose Item 44 and to rely upon it in this action. Item 44 was provided to the Plaintiff on the same day. 34.The very surrepetitious way with which the explanation was tendered is wholly unacceptable. When the item first came to Bowers’ possession, Bowers were representing both the 1st Defendant and the 2nd Defendant. Bowers had the item for ten months before the discovery application was made. They did not disclose the identity of the person who gave them the item. If it was the 1st Defendant who gave it to them, the information is prejudicial to his case that he did not know the 2nd Defendant. The 1st Defendant would have another long and probably difficult story to explain. If it was the 2nd Defendant who gave them the item, there should be no issue about consent. If it was MJK who gave it to them, they also have a long story to explain why it took that long for consent to come. Instead, Bowers say surrepetitiously that they received the item and allowed the supplier of the item hide behind their veil. 35.Bowers were representing the 2nd Defendant when they received the item, but they did not explain why they did not request the item from the 2nd Defendant or sought the 2nd Defendant’s consent earlier. Even though the 2nd Defendant and MJK had told Bowers not to contact the 2nd Defendant anymore, that does not prevent them in their capacity as the 1st Defendant’s solicitors from contacting the 2nd Defendant for consent to use the item. They should not do nothing but wait for consent to fall from the sky or MJK. Bowers offered no explanation for their inaction. There was also no attempt by Bowers or the 1st Defendant to explain what steps they had taken (if any) to obtain the 2nd Defendant’s consent before 26 June 2025 or why the 2nd Defendant’s consent could not have been obtained earlier. Bowers’ explanation is unsatisfactory. 36.If discovery is allowed, the Plaintiff will suffer serious prejudice. The 2nd Defendant is not participating in the proceedings and will not be available for cross-examination for the Plaintiff to test the veracity of the document. With just two working days before trial, the Plaintiff will have no opportunity to inspect the document, verify its authenticity, or to make enquiries from the other parties to the document, locate or review other relevant materials and call new witnesses. This prejudice could not be compensated for by costs or adjournment. 37.Not only was the explanation offered in a surrepetitious manner, the explanation itself raised more questions on the explanation and on its own credibility. The late discovery carries the hallmark of an attempt to unfairly ambush the Plaintiff. There is no reason why indulgence should be given in respect of Item 44. The 1st Defendant only has himself to blame for the late discovery. 38.Items 45 to 49 are court documents in Rem OA Holdings LLC and SIFT Fixed US002, LLC v Northern Gold Holdings LLC and REM HQ Holdings, LLC in the Court of Chancery of the State of Delaware (C.A. No. 2022-0582-LWW (collectively, the “REM OA Case” or the “documents related to the Delaware proceedings” as the context requires), an action in the United States for which Soura was involved. They include:
39.The reason for the delay as advanced by Bowers is that Item 45 was “disclosed by the 1st Defendant to [Bowers] on 2 July 2025.” Following that, Bowers located the other four items in this series. This is simply not a reasonable explanation for the delay. It does not even begin to address why the 1st Defendant did not disclose Item 45 any earlier. The documents existed since early-2023 to mid-2024. No information was given as to when the 1st Defendant first came to know about the existence of the documents and why they could not have been obtained earlier. Had The 1st Defendant or those acting for him exercised reasonable diligence, they could have obtained them much earlier. The so-called explanation is in fact a confirmation of the delay. The delay is inexcusable. 40.The 1st Defendant considered these documents relevant to the credibility of Soura if his 2nd Summons to strike out Soura’s witness statement and supplemental witness statement turned out to be unsuccessful. He relied on the Vice Chancellor’s comment in Item 45 that the evidence of Soura and Italia, the respective principal of the plaintiff and defendant in that case was irreconcilable and “it is obvious that one or both repeatedly lied under oath.” The Vice Chancellor also commented that ascertaining the truth was complicated by Soura’s and Italia’s “mudslinging.” The 1st Defendant also relied on the trial court’s finding that Soura’s repeated perjury was a minor matter and the Vice Chancellor’s criticism of the way the trial court treated Soura’s repeated perjury. 41.As explained at paragraph 16 of Soura’s 2nd Affirmation, the 1st Defendant only selectively disclosed a fraction of the documents filed in the REM OA case and omitted other critical documents, including transcripts and documentary exhibits, which could have shown that Soura did not commit any alleged perjury. As submitted by Ms Lau SC, given the seriousness of the allegations made against Soura, the Court ought to be given the full picture to understand the background of the REM OA case and consider the other documents and evidence filed in those proceedings in assessing Soura’s credibility. The documents which the 1st Defendant is seeking to adduce are voluminous, comprising around 200 pages of materials. The Court would have to double the resources required to carry out a meaningful exercise. More importantly, given the lateness with which the documents were produced, there is simply no time for the Plaintiff to review the case file of the REM OA case or retrieve additional materials from those proceedings which could clearly refute the allegations raised by the 1st Defendant. The Plaintiff will also have no opportunity to call additional witnesses such as a United States attorney familiar with the REM OA case to testify as to the background of that case and Soura’s credibility as a witness. Such exercise could not be carried out without prejudicing the trial date. That is a prejudice which could not be compensated for by costs. It is irreparable. 42.In my view, it is patently clear that what the Vice Chancellor said in the REM OA case was that either or both Soura and Italia repeatedly lied under oath and that both of them engaged in mudslinging. He did not singly point his finger at Soura. The fact that at the end of the day, the Vice Chancellor found in favour of the plaintiff whom Soura represented speaks volume that Soura’s evidence was preferred and that of the two witnesses Soura might not be the one who repeatedly lied under oath. On the basis of these documents, this Court could not even be certain whose credibility was questioned by the Vice Chancellor. In the circumstances, to give weight to the finding of credibility by a foreign court on the basis of selected documents from a case which has nothing to do with the instant case and in which the parties, witnesses, issues and circumstances are totally different without giving the party affected an opportunity to contest that finding is absolutely unfair, prejudicial and unwarranted. I also rhetorically ask, what is the value of such evidence? There is a high risk that the prejudicial effect of receiving such evidence would outweigh its probative value. 43.The 1st Defendant has no reasonable explanation for the delay. Having considered the prejudicial effect of the evidence, the prejudice likely to be caused to the Plaintiff if the disclosure is allowed and having regard to the underlying objectives as stated in Order1A, rule 1 and the Court’s duty to ensure that a case is dealt with as expeditiously and as reasonably practicable and with a sense of reasonable proportionality and procedural economy, I consider it appropriate to refuse disclosure. 44.I must emphasize that the explanation for the delay is hardly reasonable. The lateness is so serious as to cause severe disruption to the Plaintiff’s trial preparation and placed the Plaintiff at a significant disadvantage, if discovery is allowed. The application in relation to Items 45 to 49 is particularly un-meritorious. The explanation for the late discovery of Item 44 is highly artificial. All these give the Court the impression that the application was calculated to ambush or prejudice the Plaintiff. Even if it was not, it was as submitted by Ms Lau SC inappropriate for the 1st Defendant to inundate the Court with so many late and unmeritorious applications on the eve of trial. This Court should mark its disapproval of such litigation conduct by ordering indemnity costs against the 1st Defendant. Accordingly, this summons is dismissed with costs to the Plaintiff on indemnity basis with certificate for two counsel. The 4th Summons 45.On the third day of trial and while Ariani was testifying, the 1st Defendant took out a summons seeking to strike out:
46.The Plaintiff had filed the above statements and pleadings written in English with statements of truth verified by Ariani or Yunimas and a translator’s certificate signed by Ariani on Yunimas’ witness statement. On the second day of trial, while Ariani was testifying under cross-examination in Bahasa Indonesian with the assistance of an interpreter, Mr Sherry tested her English language ability by referring her to her deposition given on behalf of MBW in the insurance proceedings and her police statement. In those documents and in answer to Mr Sherry’s question, she said on a number of occasions that she could speak English “a bit”, could understood “a bit of English” and that she understood half of her witness statement and did not understand the other half. In respect of the legal terms in the pleading, Ariani said the terms had been explained to her by her solicitor, but admitted that she did not understand the meaning of some of terms such as “bona fide”, “fiduciary duty”, “knowing receipt”, “dishonest assistance”, etc. Mr Sherry was of the view that her English ability was so limited that she could not have understood the contents of the above documents and was not in the position to verify them or to sign the translator’s certificate in respect of Yunimas’ witness statement. He quoted Order 38, rule 2A, paragraphs 38/2A/8 and 38/2A/9 and Practice Direction 19.3. He further submits that for the above reasons, these five documents are inadmissible and should be expunged from the trial bundle under Order 41, rule 7. 47.The issue raised by this summons is whether Ariani’s English ability is of a level which is sufficient to satisfy the Court that she was able to understand the documents in question. The burden of proof is on the Plaintiff. Given the seriousness the court attaches to these documents, the standard of proof is high. On the face of her answers in her deposition in the insurance proceedings, her police statement and to Mr Sherry’s questions, prima facie she does not have the ability. However, having considered the totality of the evidence and having seen her in the witness box testifying, in particular, her answers in re-examination, I reach a contrary conclusion. 48.I accept Ariani was a high school graduate, had worked as a receptionist and the headquarter office manager for PT Natural Selaras between 2005 and 2007, had established the Plaintiff and PT Kuta and run the companies and business as their director, albeit in a limited manner. In her position as the sole director of PT Kuta, she had a business relationship with MBW and liaison with Soura, Colvin and other staff who are primarily English speaking. To maintain that relationship, she must have an adequate level of English proficiency. The deposition in the insurance proceedings which was used to show her limited English ability, showed that she had responded on a number of occasions spontaneously in English before the questions asked of her were interpreted. She did so in her testimony before this Court as well. 49.Though she had said she could speak English “a bit” and understand English “a bit”, when questioned further, she emphatically replied that she understood English. Ariani’s admission of her limited English ability is contradicted by her own performance in the witness box. In re-examination, she amply demonstrated her ability to read and understand English. She was asked to read out parts of her English statement in English and explain their meaning in Bahasa Indonesian and, to save time, parts of her English statement directly in Bahasa Indonesian. She did so to the Court’s entire satisfaction. 50.The Court notes that there are occasions where Ariani agreed with adverse suggestions about her English ability put to her by counsel. On some of those occasions, she obviously did not understand the question or suggestion and asked counsel what his question was about. That was not because of inadequacy in her English ability, but her failure to grasp the focal point of the question. I accept that when she agreed to the adverse suggestion, she was agreeing to the factual basis of the suggestion put to her rather than the ultimate suggestion to be put to her, ie the inadequacy of her English ability. When she properly understood the question or adverse suggestion put to her, her consistent response is an emphatic denial. 51.Mr Sherry submits that the time to assess Ariani’s English ability is March 2022 when she put her pen on her statement and not at trial today. I agree. However, for an adult of her age and exposure, three years makes little difference. Mr Sherry argues that Ariani had those documents for three years and there is no doubt that in the days and weeks leading up to her giving evidence in court she would have been prepped for trial. Attractive as that argument may sound, she has not deviated from what she said in her statement in 2022. Preparation before testifying is only to be expected. A witness is more likely to be criticized for not preparing and not refreshing her memory from her statements than if she did not. Against the factual matrix, the incontrovertible evidence or evidence not in dispute, the Court considers on the totality of the evidence, no weight should be given to Ariani’s evidence that she could speak English “a bit” and understand English “a bit”. It is understandable that being a non-native English speaker in an English speaking court, whether in Hong Kong or California, Ariani may feel inhibited from claiming her proficiency in English and may feel more comfortable to humble herself by saying that she understood English “a bit” and testified with the assistance of an interpreter. I am satisfied that she had adequate English ability to enable her to understand the witness statements and explain Yunimas’ witness statement to Yunimas. 52.Ariani has not been re-examined on her failure to understand the technical terms in the pleadings. Ms Lau SC submits that the pleadings are pleading of facts and as Ariani understands the facts pleaded, her failure to understand the technical terms is not fatal. I agree. I am satisfied that the statement of truth signed by Ariani in respect of the pleadings are not defective. 53.For the above reasons, the 1st Defendant’s summons is dismissed with costs to the Plaintiff’s costs in the cause on party and party basis, with certificate for two counsel. THE BACKGROUND The backdrop 54.The backdrop described below is based on undisputed facts, incontrovertible evidence and some of the Court’s finding of facts on some issues of lesser significance. The reasons for the Court’s finding are set out in its analysis of the evidence in the relevant subsections. 55.Soura was a former shareholder and director of MBW. Since 2005 to 2007 and 2011 to 2012, he travelled regularly to Indonesia to handle matters relating to MBW’s business. In September 2005, MBW employed PT Natural Selaras as its captive subcontractor for supply of beachwear and Soura introduced Ariani to work there as a receptionist. At the time, PT Natural Selaras was under the directorship of Sapto. 56.In around February/March 2007, on the instructions of Soura, the 1st Defendant arranged for Sapto’s shares, directorship and his bank mandates in Admire Best and Sharp Outlook to be transferred to Ariani. Effectively, Ariani became the sole director and shareholder of PT Natural Selaras through her ownership of Admire Best and Sharp Outlook. In June/July 2007, may be possibly earlier, when the relationship between Sapto and Soura began to fall out, Soura instructed the 1st Defendant to set up a corporate structure for Ariani, consisting of the Plaintiff, PT Kuta, Lakeway and Dolphin Peace, opened bank accounts for these companies and transferred funds from the bank account of Admire Best to the Plaintiff’s (the “corporate works”). 57.In around May 2007, a labour dispute over non-payment of wages was brewing in PT Natural Selaras. In around August 2007, PT Kuta replaced PT Natural Selaras as MBW’s supplier. In the early hours of 31 July or 1 August 2007, the factory premises of PT Natural Selaras in Jatake was arsoned and burnt to the ground. In around September 2007, Soura, a US Marine Sergeant, MJK and his cousin were arrested in connection with Soura’s attempt to remove goods and equipment from the warehouse of PT Natural Selaras in Balaraja. They were detained in a police station for three days and then held in prison custody. The 1st Defendant claimed to have instructed Indonesian lawyers to bring about their release from prison. Soura returned to America a few days after his release. 58.On 23 July 2008, about nine months later, Sapto was murdered. He was found on the morning of 25 July 2008 packed into a suitcase and dumped into a river. Police identified five suspects, including Soura, Mockler, Robin, Dadang and Naresh. Soura was in America at the time of the murder. Mockler had probably left Indonesia on the day of the murder. The other three suspects were arrested and prosecuted. Robin was convicted and sentenced to ten years’ imprisonment. Dadang died during the course of the trial. Naresh was acquitted. Wanted notices were issued against Soura and Mockler. However, Soura appeared to have been cleared of the murder as he attended the North Jakarta Police Station with Ariani in October 2012 in connection with the investigation of the kidnapping incident and had travelled between United States and Indonesia in 2011 and 2012. In the course of its investigation of Sapto’s murder, the Indonesian police took a witness statement from Ariani on 25 July 2008 (the “police statement”)[9]. This statement is relied on by the 1st Defendant as evidence of Ariani’s background and her nominee relationship with Soura and in attacking her credibility in these proceedings. 59.In October 2008, Soura filed a legal malpractice suit against the 1st Defendant on his own behalf and in the capacity as MBW’s and Mercantile Investment Advisors Inc’s authorized representative. The parties reached a confidential settlement in July 2011. 60.In January 2009, MBW commenced the insurance proceedings against its insurance carrier in the United States for losses incurred in Indonesia. Towards the end of 2011, Soura instructed the 1st Defendant to gather evidence and witness testimony in Indonesia for the insurance proceedings. Finally, MBW lost in the insurance proceedings in 2012. 61.Many reports and depositions were produced in the insurance proceedings. Some of those documents are relied on by the parties in these proceedings. These include:
The two AGI reports 62.AGI-1 and AGI-2 (Items (1) and (2) above) were relied on by the 1st Defendant as evidence of the nominee relationship between Ariani and Soura. They were compiled on the basis of the investigator’s interview with employees of PT Natural Selaras and hearsays from local newspaper. The reports said that Sapto was only a 10% shareholder of PT Natural Selaras at the time of the fire, and it was generally held by employees of PT Natural Selaras that Soura or MBW was its owner. AGI suggested that the company was owned and controlled by MBW through a nominee relationship and that this fictitious relationship enabled MBW to effectively separate its assets from liabilities of its manufacturing operation. 63.AGI-1 described the arson in PT Natural Selaras’ factory in Jatake, as a military style operation by armed military built men with military haircut. It suggested by a process of elimination that Soura was most likely the man behind the arson. It also mentioned Soura’s attempted removal of goods and equipment from PT Natural Selaras’ factory in Balaraja and implicated him in Sapto’s murder. 64.Given the nature of evidence relied on by the reports, AGI’s opinion is a reasonable one but of no probative value. There is nothing the Court needs to know and does not know from other more reliable evidence about those matters. In any event, those matters are irrelevant to the controversy in dispute in these proceedings. The Court gives no weight whatever to these reports. The three depositions and declaration by Indonesian police officers 65.The two depositions by Indonesian police officers (Items (3) and (4)) are about investigations of Sapto’s murder. They were produced by the insurance carriers in the insurance proceedings. Item (5) was made by one of the two officers. In his declaration, he reversed what he had said in his deposition in relation to some of the issues in these proceedings. He said his and his colleague’s depositions were produced as result of corruption by AGI and contain false information. 66.The remaining depositions and declaration were produced by MBW in the insurance proceedings. They were prepared by the 1st Defendant and MJK when they were engaged by Soura or MBW. They are about AGI’s corrupt connections with the Indonesian police and their dirty tricks in buying, intimidating and manipulating witnesses. They contradict the 1st Defendant’s case in these proceedings. They are mostly hearsays and are inherently conflicting in themselves and against one another. In any event, in view of the Court’s finding that the AGI reports have no probative value, these attacks serve no useful purpose. The Court will not take much time to analyze such evidence. They are not probative. The evidence in those documents are mostly irrelevant, except for the purpose of testing credibility of the parties’ witnesses in these proceedings. CREDIBILITY 67.There are four plaintiff witnesses, namely Ariani, Yunimas, Soura and Colvin; and two defence witnesses, namely the 1st Defendant and MJK. With the exception of Yunimas, I find none of them was telling the whole truth. But Yunimas’ evidence is limited to what happened during the 1st Defendant’s visit to Ariani’s home and the kidnapping incident. Ariani 68.The general thrust of Mr Sherry’s criticism of the Plaintiff’s witnesses, particularly that of Ariani’s, is that their evidence is stale, being almost ten years after the kidnapping incident and not supported by any reliable account of a contemporaneous nature of what they said actually happened in relation to the matters they testified. Though Ariani did not make any contemporaneous notes of what happened during the incident, she did make contemporaneous complaints to the police, to Soura and then took reasonably prompt actions or attempts to recover the loss. She must have retold her story on many, if not all, of those occasions and therefore refreshed herself many times. What happened during the kidnapping incident is not in serious dispute, except for the role played by the 1st Defendant. It is beyond any dispute that what happened was traumatic: guns were brandished, Ariani and her sister were handcuffed and she was made to sign away US$2,100,000. She was held in detention for almost five days. The events progressed slowly. They did not happen in a fleeting glance. There was ample time for her to calm down and settle down during those five days. The events must have left a deep impression in her memory. She was refreshed every now and then with the steps she took in the recovery actions, such as giving instructions to her solicitors, going to the police stations in Hong Kong and Indonesia, etc. 69.Mr Sherry sought to cast doubts on Ariani’s account of the kidnapping incident based on the lack of mention in her letters or her solicitors’ letters or in an Indonesian police report of some of the characters involved in the incident. These are very trivial points in the totality of the evidence. There is no dispute about the three known characters involved, namely, the 1st Defendant, the 2nd Defendant and David and three other unknown characters which had not been identified. Some of the letters were written to banks and not to investigating authorities. The focus of those letters was return of the transferred funds. The number or identities of the wrongdoers would be of no relevance or interest to the banks. As for the failure to mention the three unknown characters in Indonesian police report, Ariana said she had mentioned them. The report was prepared by a police officer. It was just the officer’s statement. There is nothing Ariani could do to correct it. Besides, there is no dispute that there were three other unknown kidnappers. Even if Ariani had failed to mention them, that could cast no doubt on the veracity of her account. 70.Ariani impressed me as a simple and unsophisticated witness. If she was telling the truth, she would be very consistent. It would not be difficult to tell if she was not. She is the type of witness who is capable of telling a lie, but incapable of keeping it. This is not because she had problems with her memory, but because of her unawareness of the need to keep a secret. She was very consistent about the centerpiece of her case, ie the 1st Defendant’s impromptu visit to her home, the arrangement for the meeting in the 1st Defendant’s apartment and what happened during those five days from 7 to 11 October 2012. Her evidence about her nominee relationship with Soura, the setting up and operation of the Plaintiff and PT Kuta, Soura’s authorizing payment to Mockler and Robin and Soura’s control over PT Kuta is problematic. I have doubts about her evidence in those matters, but I have not the slightest doubt whatever about the centerpiece of her case, which I find is credible. Yunimas 71.Yunimas’ evidence is virtually a replication of Ariani’s. Her evidence is limited to what happened during the 1st Defendant’s impromptu visit and the kidnapping incident. She was held in the same room with Ariani during the kidnapping incident. Her evidence corroborates and supports Ariani’s. She fairly accepted that she could not see the transfer forms or what happened to Ariani when Ariani was taken out of the room where she was detained. She did not exaggerate. Though she said she had tried to forget the incident because it was dreadful, I accept the incident was so traumatic that it left an unforgettable memory in her mind. I find her an honest and credible witness. I have no reason not to believe her evidence. I accept her evidence. Colvin 72.Colvin was the president of MBW from 1986 to 2010 during which time Ariani, PT Kuta and the Plaintiff came into his picture. He has no affiliation with any party to this litigation or stake in this litigation. Soura having left MBW in 2012, Colvin is clearly not an interested party. The 1st Defendant disputes his evidence which corroborates those of Ariani’s and Soura’s. That evidence stands or falls with Ariani’s and Soura’s evidence. Not being the chief executive officer at the material time, he may not have full information about Ariani’s relationship with Soura and MBW. I consider that part of his evidence with reservation. That is only an assessment of reliability and not that I have questions about his honesty. The most important part of the rest of his evidence is his testimony regarding his telephone conversation with the 1st Defendant on or around 22 October 2012, about ten days after the kidnapping incident. He candidly and honestly acknowledged that he could not recall the exact words used in that telephone conversation after all these years, but was able to give a clear account of his recollection of what was said. He recalled with certainty that the 1st Defendant initially said he was a victim of the kidnapping incident; but later admitted he had taken part in the incident though he denied being the mastermind. He said the 1st Defendant told him that someone had made him do it and he felt bad about the incident. He firmly rejected the 1st Defendant’s account put to him by the 1st Defendant’s counsel. I find him generally credible. Soura 73.Soura is highly educated and has rich working experience. He is a very intelligent person. His evidence is hotly in dispute. There is a lot of evidence of a negative nature about his involvement in the arson of PT Natural Selaras’ factory in Jatake and removal of goods and equipment from the warehouse of PT Natural Selaras in Balaraja, his arrest by the Indonesian police and murder of Sapto. There are also suggestions about his avoiding or evading MBW’s tax liability and liability for wages of PT Natural Selaras’ employees. The evidence is not sufficient to enable this Court to make definitive finding on those facts, which are irrelevant to the present proceedings, save to caution the Court about the weight to be attached to his evidence. Even if all such evidence were accepted, it would not be fatal to the centerpiece of the Plaintiff’s case, simply because they are irrelevant. Putting such evidence aside, the rest of his evidence corroborates that of Ariani’s and stands or falls with her evidence. Except for her problematic evidence which I identified earlier, where Soura’s evidence conflicts with Ariani’s, I prefer most of Ariani’s evidence as more credible because it is supported by incontrovertible facts, whereas Soura’s evidence on those issues is just bare denials and inconsistent with those incontrovertible facts. 74.Soura had been critically cross-examined about the nominee arrangement between him and Ariani, which he flatly denied. However, on Ariani’s evidence which I accept, I find there existed some sort of nominee arrangement between them, but the evidence is not sufficient to enable this Court to find out the content of that arrangement. This finding caused some dents on the credibility of both his and Ariani’s evidence. He was very smart and was very selective in telling the truth. I have to be very cautious in assessing his evidence. I give little weight to his evidence unless it is corroborated by other credible evidence. The 1st Defendant 75.The 1st Defendant was presented as an United States attorney of good standing and well known to Ariani. As submitted by Mr Sherry, it would be most unlikely that he would have embarked upon such a shocking course of conduct against her. I accept the need for caution when assessing the reliability of such evidence against him. However, his depositions in the insurance proceedings betrayed him. 76.It is his case that the Plaintiff and PT Kuta are held by Ariani as Soura’s nominee. But, 15 years ago, when he was engaged by Soura or MBW, he made a sworn deposition dated 23 June 2010[18] in the insurance proceedings asserting that Soura had no interest in PT Natural Selaras or PT Kuta. He could have no explanation for such blatant contradiction. Was he lying on oath then or is he lying now? Though in the end, I accept his evidence about the nominee relationship, he demonstrated himself to be a witness of fortune who is prepared to testify on oath on anything where his interest lies or in favour of whoever pays him. As an attorney, he has no respect to the oath he took in the insurance proceedings. As a witness, he has no respect to his oath before this Court. 77.More alarming is his evidence in his deposition[19] that he had “some negotiations” with “a private jet company to land a jet over there (Indonesia) to sneak them out of jail”. Soura, MJK, MJK’s cousin and a United States Marine sergeant were held in prison in connection with their attempt to remove goods and equipment from the factory of PT Natural Selaras without proper customs documentation. Even though in the end that course was not taken, his planning and taking preparatory steps pursuant to his “mission-impossible” plan to prison break them shows he has no respect for the law and is always prepared to take the law in his own hands, which is the type of case now against him. His evidence as to how Soura and others were “released” is very obscured. He said he “talked to the US ambassador”. Eventually, he received a call from MJK telling him that they had arrived at Singapore by ship. On the other hand, it is Ariani’s evidence that after Soura was released, he stayed in the hotel for a few days pending return of his passport and then returned to the US. On the evidence available, it is not possible to find out where the truth lies. If what he said is true, it is damaging to his character. If he was merely bluffing in his deposition, it is equally damaging to his credibility. He is a dangerous witness to rely on. 78.More directly relevant to his credibility in these proceedings is that he changed his pleaded case in a manner as to suggest he never had a real or proper defence and was making up and attempting to improve on his defence as the proceedings progressed. Initially, he denied having any “knowledge of the pleaded facts and events in the Statement of Claim (“SOC”)”. That is in essence a bare denial and putting the Plaintiff to strict proof. That is confirmed by his 1st and 2nd Affirmations filed in support of the Defendants’ strike out application in which he said he was “not involved in the supposed kidnapping incident” suggesting that the incident had never occurred. It was only until he filed his first witness statement that he claimed himself to be a “victim” of the kidnapping incident which did occur. Subsequently, he amended his defence to plead his version of events regarding the kidnapping incident, which he unequivocally acknowledged did exist. “Not involved in” is plainly far from claiming to be a “victim”. He tried to explain that the amendments to his Defence were prompted by the Plaintiff’s amendments to the SOC, but was unable to identify which amendments in the SOC led to a complete change of case in his Defence. Pleading aside, there are multiple and significant inconsistencies between his newly pleaded case and his evidence which demonstrate that his evidence is not credible and his pleaded case not substantiated. 79.Another fatal blow to his credibility is that his testimony is inconsistent. It changes like an amoeba. Under cross-examination, he said that the account he gave in his witness statement was a summary of all the events in any order. It is unthinkable that an attorney of many years’ standing like him would have given a witness statement in such a confusing manner, with obvious omissions and in non-chronological order; and an account which is illogical, incredible, inconsistent and inexplicable. His evidence is riddled with inconsistencies and implausibility. For example, his account of what happened on Day 3 and Ariani’s laughing after signing away US$2,100,000 and saying that Soura can buy her a house is inexplicable. He is plainly incredible. Michael Joseph Keanly 80.MJK is an investigator. He was not present in the apartment during the kidnapping incident. The main thrust of his evidence is about Ariani’s background, the nominee arrangement and Sapto’s murder. Much of his evidence is in the form of counsel’s submission on the evidential value of documentary evidence, such as Ariani’s police statement, documents Soura gave him and the depositions in the insurance proceedings. It appears to me that he had a lot of grievance against Soura for refusing to pay for his and the 1st Defendant’s services and he badmouthed both Soura and Ariani whom he believes is Soura’s nominee and girlfriend. Previously, he filed a deposition in the insurance proceedings saying he was not aware of any relationship between MBW and PT Natural Selaras when he was engaged by Soura to collect evidence. Now that his father’s and his friend’s or business partner’s personal interest is at stake, he turned around and said the contrary. His explanation was that what he said in his deposition in 2011 was based on what Soura had told him then which he believed, but now found out to be incorrect. His explanation is of doubtful credibility as he had been working with Soura since 2005 and had even seen an agreement dated 18 December 2006 entered into between Soura, Sapto, Wahyuni about buying out Sapto’s shares in PT Natural Selaras under Wahyuni’s name (the “Soura/Sapto Agreement”)[20] which were eventually transferred to Ariani. That is one of the documents he relied on as showing Soura using vulnerable women as his nominees. He must have been given that document well before 2011 when he made the deposition. His evidence is ludicrous and incredible. For example, he made an outlandish claim that he was worried that Soura would kill him when they met in Miami, yet, he asked Soura to pick him up at the airport. I find him an unreliable witness. THE FACTS Whether Ariani’s police statement was given as result of threat 81.I begin my fact-finding process by examining Ariani’s police statement[21]. It is the only formal statement to the authority about her background and relationship with Soura made by her closest to the setting up of the Plaintiff and the kidnapping incident. If it was not obtained as a result of duress or other vitiating elements, it is the best evidence against which to test her credibility and the reliability of her evidence. 82.Ariani said in testimony that she had been detained for two days and threatened with prosecution for Sapto’s murder and for trafficking dangerous drugs to him before her police statement was taken. She said her police statement was written by the police officer, she knew nothing about its contents and signed it for fear that she would be further detained and prosecuted for murder and trafficking, if she did not. 83.This complaint about threat was first raised towards the end of Mr Sherry’s cross-examination on her police statement where she said in answer to Question 23 that she was the legal owner of PT Natural Selaras but Soura was the person in actual control. Ariani did not dispute her signature on the statement. As submitted by Mr Sherry, the statement had been disclosed by the 1st Defendant in his List of Documents dated 25 November 2021, but at no time had Ariani ever raised the complaint in either of her witness statements that she was forced to sign on her police statement. I note she had expressed her fear to testify in her deposition dated 17 June 2010 filed in the insurance proceedings because of the threat by the police[22]. This is corroborative of her evidence about the threat. However, that deposition was given two years after her police statement. There may be a plausibility that what was said in the deposition is an afterthought raised for the purpose of the insurance proceedings. 84.Ariani’s police statement shows how it was taken. It began with the statement taker introducing himself and his assistant who typed the statement, the purpose of the interview, and Ariani’s acknowledgement that she understood the process. It ended with the statement being read back to her and then her signature. That must indicate an acknowledgment by Ariani that the statement had been read back to her or she had read it herself and that she agreed with its contents. If her signature on the statement is not disputed, prima facie, there is no room for any suggestion that false information had been inserted into the statement. If Ariani had been threatened with prosecution of such a serious offence as murder, it begs belief that she would not have read the statement before signing to make sure that nothing prejudicial against her had been recorded in the statement and that the promise (at least an implied one) not to prosecute her would likely be honoured. 85.As Mr Sherry had pointed out, Ariani’s father was a police officer; if what she said was true, it is unlikely that she would not have consulted her father about such a serious matter as her detention, her police statement and the threat of prosecution for murder or trafficking; or would not have done anything after consulting him to protect her position. Further, if the police statement was given as a result of such coercion, it begs belief why she did not raise this issue when she was first cross-examined on her police statement but waited until she was cross-examined on this last issue in her police statement. I find her allegation of threat and her claim of not having read the statement before signing is an instant concoction in the witness box. I do not believe this part of her evidence. Whether false evidence had been planted in Ariani’s police statement 86.Ariani’s police statement and the two AGI reports are heavily relied on by the 1st Defendant for the purpose of discrediting her evidence relating to her background, the nature of her relationship with Soura and ultimately the absence of a nominee relationship between her or the Plaintiff on the one part and MBW or Soura on the other. The Plaintiff seeks to rely on Wargijanto’s declaration as evidence that false evidence had been planted in her police statement by him or his corrupt colleague and AGI. It also seeks to rely on MJK’s declaration about AGI’s corrupt connection with the Indonesian police and its dirty tricks and practice in manipulating or intimidating witnesses and creating false evidence. The finding on this issue calls for a detailed analysis of Purwanto’s deposition dated 30 September 2010[23], Wargiganto’s deposition dated 1 October 2010[24] and his declaration dated 8 August 2012[25]. The evidence in these documents is conflicting and intertwined. 87.In Purwanto’s deposition given on behalf of the insurance carriers in the insurance proceedings, he said he was a captain in the Indonesian police force and the chief of the unit responsible for investigating Sapto’s murder. His subordinates included Wargijanto and Suprobo. Both he and Wargijanto went to California to give the depositions. He described the investigation process and the procedure in taking a witness statement. He was the officer who interviewed Ariani and took her police statement. He said the statement was taken in the presence of her attorney. It is therefore unlikely that her attorney would not have read or ensured that she had read her police statement before signing. As the presence of her attorney had not been put to Ariani, I shall not give much weight to this piece of evidence. 88.In Wargijanto’s deposition, he said he was the main investigator of Sapto’s murder, that Purwanto was his immediate supervising officer and they both worked under the same commanding officer. He described the unit’s open office of 150 square metres which contained a number of cubicles in one of which Ariani was interviewed and her police statement taken. He said at the time he was around in the same open office conducting his own interview of another suspect. In answer to questions raised by the attorney, he testified about what Ariani had said during her interview. The attorney should not have asked him that line of questions as he was not the person who interviewed Ariani and was not in the position to describe what she had said, her reaction and condition during the interview. Though being part of the investigating team he may have information about those matters, anything he said about Ariani, her relations with Soura, Soura’s payment to Mockler, etc are clearly hearsay and could not have emerged from his interview with Ariani. 89.Then, Wargijanto gave a declaration dated 8 August 2012 two years later. Remarkably, this declaration was given on behalf of MBW, the opposite party in the insurance proceedings. He contradicted what he had said in his earlier deposition and gave very disparaging evidence about corruption in the Indonesian police force. He said in early 2012, his current commander ordered him to meet with representatives of MBW to correct inaccuracies in his earlier deposition. He met with the 1st Defendant two or three times in April 2011 and told him among other things the following during recorded interviews. 90.First, he said on 25 July 2008, ie the date when Ariani’s police statement was taken, Telambanua, presumably an officer from another unit and Eric Gerstein (he did not describe who or what he was) approached him. Telambanua introduced himself as an officer working on an insurance case involving Soura. Then, he saw Telambanua gave an envelope containing two centimeters of what appeared to be one hundred dollar bills in United States currency to his then commanding officer, whose identity he did not disclose. After that, his then commanding officer instructed him to focus his unit’s investigation on Soura and allow Telambanua and AGI to participate in the investigation. Second, he said Telambanua provided his unit with incorrect facts regarding Soura authorizing payment to Mockler and Telambanua told him to insert those incorrect facts into the witness statements of Ariani and Sri Lestari. He gave no particulars of the person who inserted those incorrect facts into Ariani’s statement and how that was done. Third, he said he was present at the witness interviews of Ariani and Sri Lestari but neither of them described any authorization given by Soura to pay Mockler. Fourth, before going to California to give his deposition, Telambanua and Eric Gerstein had several meetings with him and told him to testify inaccurately regarding his investigation of Sapto’s murder. He said his testimony in his earlier deposition given on 1 October 2010 was inaccurate in many respects, but he did not describe what respects. It should be noted that he mentioned nothing about Purwanto’s taking of Ariani’s police statement, which was the purpose of his declaration. He also mentioned nothing about who and how the incorrect information were inserted into Ariani’s police statement. 91.Then, at the end of his declaration, he said after he had agreed to depose again, he was threatened by Eric Gerstein and Windy Marthavianti (he did not describe who and what he was) with slander and libel action if he said anything negative about AGI. In early June 2012, he saw Eric Gerstein meeting his current commanding officer. Shortly after that, his current commanding officer had a change of mind and ordered him not to continue cooperation with MBW. 92.Wargijanto is a police officer whose duty is to enforce the law. He travelled all the way from Indonesia to the United States to testify by telling the Californian court the truth. Yet, on his own admission, he knowingly gave false testimony in the Californian court in 2010, simply because his colleague and Gerstein, not his commanding officer, told him to. For such a casual reason and without any real coercion from anybody or his commanding officer, he freely chose to betray his duty as a police officer by inserting false information in witness’ statements and his investigation and then to tell lies to the court. He has no respect to the law, to his promise to tell the truth and to his duty as a police officer. He perverted the course of justice at will. Though he now says he is telling the truth, what weight could the Court give to his testimony? What assurance does this Court have that he will not turn around next time and tell this Court or some other court that Telambanua or some other colleague or his commanding officer had told him to lie before this Court. What is the value of this declaration when its maker could not be examined? Even putting these worries aside, it is difficult to assess the weight to be given to his latest testimony. The evidence in his declaration is vague. In one broad brush under the words “testify inaccurately”, he wiped away most of what he had said in his earlier deposition without identifying what was accurate and what was not. The Court could find no yardstick from his earlier deposition against which to test his new account. He is not a credible witness. His declaration has no probative value. 93.Apart from the question of his personal credibility, the evidence in his declaration is inherently implausible. In Purwanto’s deposition, Purwanto said he was the chief of the unit and the officer who interviewed Ariani, not Wargijanto. Purwanto asked questions and his subordinate, Suprobo, typed his questions and Ariani’s answers into her police statement. His name and Suprobo’s name are recorded on the statement. This fact is incontrovertible. Although Wargiganto said he was around and saw Ariani that night, he said at the time he was actually in his cubicle interviewing a suspect. The evidence suggests he was interviewing Sri Lesari. Even assuming that Sri Lesari’s statement was faked by this corrupt officer inserting the false information into her statement, that only applies to Sri Lesari’s statement and not to Ariani’s police statement, which he had no part in taking. He could not have known if Ariani had mentioned anything about Soura authorising payment to Mockler and could not be in the position to assert in his declaration that she had not. He could not be in the position to testify to the effect that false information had been inserted into Ariani’s police statement. This Court could only give weight to the allegation of evidence planting, if Purwanto would testify to that effect or if Wargijanto could give credible evidence as to how he could have done it by-passing Purwanto, bearing in mind that the statement was signed by Ariani on the spot. It is also not Wargijanto’s evidence that he had somehow successfully inserted the false information from Telambanua into Ariani’s police statement. As noted earlier, his declaration is vague and not probative. On the face, the story in his declaration is a blatantly and poorly fabricated story from an unreliable and corrupt source, ie himself. This Court can give no weight whatever to his evidence in his declaration in 2012. 94.More importantly, I have found conclusively, on the basis of Ariani’s answers in cross-examination before this Court that she had received instruction from Soura through Sri Lestari to make the payments to Mockler and Robin. Thus, there could absolutely be no truth in Wargiganto’s declaration about inserting false evidence into Ariani’s police statement about Soura authorizing payment to Mockler. For the above reasons, I reject the evidence in Wargijanto’s declaration that false evidence had been planted in Ariani’s police statement. 95.As explained by Purwanto who took Ariani’s police statement, it was taken as a witness statement and not as a suspect’s statement. She was treated as an independent witness. She had no personal interest to protect when giving the statement. At the time, none of the issues raised in this action could have been in her mind. She would not be on guard as to the consequences of her evidence on these issues and would most likely have told the truth. I give weight to this aspect of her evidence. Ariani’s background and her relationship with Soura 96.The parties are in hot dispute about Ariani’s background and her nominee relationship with Soura. The underlying purpose of this dispute appears to be the 1st Defendant’s belief that Ariani is Soura’s nominee in relation to the Plaintiff and PT Kuta and that this nominee relationship is the underlying basis on which his proposition that the kidnapping incident was a deal-gone-wrong between Soura and the Indonesian police was built. This nominee relationship is not even an issue in the list of agreed issue. However, I shall deal with this issue for what it is worth to the defence. 97.Ariani’s evidence is that she obtained a Diploma 3 degree from the National University of Indonesia in Jakarta in 1999. In the same year, she came to know Soura through a mutual friend in Indonesia who was Soura’s classmate when he studied for a master degree in the United States. She first met Soura at the Pesona Tennis Club. They were casual acquaintances and met infrequently with mutual friends when Soura visited Indonesia. In 2005, she started working as the headquarters office manager for PT Natural Selaras. In the same year, she reconnected with Soura when he came to Indonesia to establish facilities for MBW in Indonesia. She introduced Soura and Colvin to garment manufacturers in Indonesia. In due course, PT Natural Selaras became MBW’s captive subcontractor. When PT Natural Selaras ceased business in 2007, she set up PT Kuta with the help of Soura to provide production capabilities to MBW. Then PT Kuta replaced PT Natural Selaras as MBW’s captive subcontractor. She said she was able to do so given her family’s background in real estate business and her experience in PT Natural Selaras. 98.The 1st Defendant’s evidence is that he was first introduced to Ariani by Soura at the office of PT Natural Selaras in late 2006 where she carried out receptionist/secretarial/clerical duties. Soura told him that he had met Ariani at “one of the hooker bars” where she was working as a bar girl, invited her to work as a receptionist at PT Natural Selaras, and was in the process of forming a romantic relationship with her. 99.Soura corroborated Ariani’s evidence generally. He denied having a romantic relationship with Ariani. He refuted the 1st Defendant’s suggestion of his romantic relationship with Ariani based on a photograph of him and Ariani by producing his own photograph with his girlfriend taken on the same occasion. He denied having a nominee relationship between him and Ariani in relation to the Plaintiff and its group of companies. His evidence is also supported by Colvin’s. 100.Mr Sherry referred to the preamble in Ariani’s police statement, which is the Achilles heel in her credibility. In that statement she said, amongst other things which I shall refer to later, that she was a high school graduate. I have earlier rejected Ariani’s evidence that false evidence had been inserted into her police statement by a police officer without her knowledge. Having made that finding, I also find that her police statement was a true record of what transpired during the interview. 101.In the preamble, Ariani described herself as a high school graduate born in 1976, aged 32 at the time of taking of the statement. This contradicts her evidence that she holds a degree from the National University. Mr Sherry submits that Ariani exaggerated her qualification in order to support her claim that she had the ability to set up and manage the Plaintiff and PT Kuta. The police statement was given by Ariani as a witness statement. There was no conceivable reason why in her position as an independent witness she would have withheld a neutral fact that she was a university graduate, if she was. There was also no reason why she would deliberately misrepresent herself as a high school graduate, if she in fact held a higher qualification. Her status as a university degree holder had been challenged in the defence witness statements. Obviously, she quoted her qualification to support her case that she had the ability to set up and run the Plaintiff and PT Kuta. She might even have foreseen she would be challenged as being a nominee acting for another. She could have easily quashed that challenge by producing her university diploma, but she did not. I find she does not have a degree in the National University. That finding slightly dented her credibility, but does not affect my assessment of her English capability based on her actual performance in the witness box. Besides, it is not fatal to her case since whether she was a degree holder has no significant bearing on the issue whether she could start and/or manage a manufacturing business. 102.The more critical part of her police statement is her answer to Question 6 in which she said:
103.This answer contradicts Ariani’s case in material respects. It is her case that she was actually working as the headquarters office manager in PT Natural Selaras when she reconnected with Soura in 2005 and then she introduced Soura to her employer and other garment manufacturers; and not the other way round that Soura offered her employment in PT Natural Selaras as a receptionist when Soura was already the owner of PT Natural Selaras. 104.This answer also contradicts Ariani’s testimony under cross-examination that she first met Soura at the Pesona Tennis Club. To reconcile with that inconsistency, Ariani conceded that she did sometimes meet Soura at JJ Bar for having fun and drinks and agreed that she initially worked for Soura as a receptionist. While she may reasonably be excused for mixing up the place where she and Soura first met 26 years ago when Soura was a person with little or no significance in her station in life then, her other changes in evidence could not be explained otherwise than that she had deliberately given a false account in Court. The changes are significant. That it was Soura who was in a position to find her placement in PT Natural Selaras rather than that Ariani had already been working in PT Natural Selaras before reconnecting with Soura and then introduced him to her employer changed the entire tone of their relationship. 105.As for the 1st Defendant’s evidence that he had been told by Soura that he first met Ariani in a hooker bar working as a bar girl, it is all hearsay from Soura which had been denied by Soura and by Ariani. The 1st Defendant did not have first hand information of that fact. On his own evidence, when he was first introduced to Ariani, Ariani was working as a receptionist in PT Natural Selaras. If in fact, Soura was intending to start a romantic relationship with her, it is doubtful that he would pass such a disparaging or belittling remark about her, which would also lower his esteem in the eyes of the 1st Defendant. On the totality of the evidence and on my adverse finding of the 1st Defendant’s credibility, I reject his evidence about what he alleged to have been told by Soura. 106.Likewise, I reject MJK’s evidence of what Soura had told him about Ariani’s background as incredible. I also have doubts about his evidence that Ariani had shown him that she tried to hustle men via online dating sites. If she was indeed having a romantic relationship with Soura and enjoying the benefit that relationship brought her, it would be extremely unlikely that she would have jeopardized that relationship by hustling men and telling that to MJK at the risk that the story would find its way to Soura’s ears. I find MJK was trying to badmouth Ariani to advance the 1st Defendant’s case that she was Soura’s nominee which they thought would assist his defence. I do not accept MJK’s evidence. 107.In conclusion, I find Ariani is a high school graduate, her father is a police officer and her mother is a housewife. I do not accept her family is engaged in the real estate business. If they were, she would have found more gainful employment in her family business than to start as a receptionist in PT Natural Selaras and through the introduction of Soura. I accept Ariani’s answer to Question 6 of her police statement is a correct summary of the beginning of her relationship with Soura and that she first came to know Soura through a mutual friend in 1999, but met infrequently until they were reconnected in 2005. I accept that Soura had established business relations with Sapto and PT Natural Selaras around September 2005, introduced Ariani to work as receptionist in Natural Selaras and engaged PT Natural Selaras as MBW’s captive subcontractor. That is Ariani’s background and her relationship with Soura towards the end of 2005 shortly after they re-connected. Whether Ariani is a nominee of Soura or MBW in relation to PT Natural Selaras 108.Mr Sherry relies on Ariani’s answer to Question 23 of her police statement as evidence of her admission of such a nominee relationship between her and Soura or MBW. In that answer, Ariani described the nature of her ownership of PT Kuta as follows:
Ariani denied she had given that answer and alleged that her police statement was written by a police officer and she signed out of fear of prosecution without reading it. I have rejected that evidence. I have also rejected Wargijanto’s evidence that such false information had been planted into her statement. Prima facie, her answer to Question 23 is an admission against her interest which deserves weight. 109.Among the documents produced by MJK is the Soura/Sapto Agreement. In its preamble, it quoted the meetings and discussions between Soura, as chief executive officer of MBW and Sapto as the 99% shareholder of PT Natural Selaras. The agreement is about the new arrangements in ownership and management structure of PT Natural Selaras to honour and to replace the original agreement set in September 2005. Under the new arrangement, Sapto would sell 90% of his stock in PT Natural Selaras to Wahyuni, would resign as its director, be appointed as president commissioner, and receive a compensation package. It was also anticipated that Wahyuni would transfer her stock to a foreign entity. As the events unfolded, Wahyuni dropped out of the picture and Ariani took over her role as the office manager. Then, as the events further unfolded, at the direction of Soura, the 1st Defendant arranged the transfer of Sapto’s shareholding, directorship and bank mandate in Admire Best and Sharp Outlook to Ariani in February/March 2007. Admire Best and Sharp Outlook are the holding companies of PT Natural Selaras. With this transfer, Ariani became the sole director and shareholder of PT Natural Selaras. This transfer of the shares in Admire Best for US$100 only is significant in that with the transfer, Ariani became a very rich woman and effectively the owner of PT Natural Selaras with access to Admire Best’s bank account balance of US$3,700,000. That transfer could not have been a dealing at arm’s length. It was effected by the 1st Defendant on the instruction of Soura. Though Soura was never a shareholder, director or officer in PT Natural Selaras or its holding companies, his ability to engineer all these events strongly suggests he had actual control over PT Natural Selaras and its holding companies and that there exists some nominee arrangement between him and those who on record were directors and officers of these companies, ie Ariani. 110.Accordingly, I find on the facts that Ariani is a nominee of Soura or MBW in relation to PT Natural Selaras, but the evidence does not permit the Court to determine the content of that relationship. Whether Ariani is a nominee of Soura or MBW in relation to PT Kuta 111.It is Ariani’s case that she set up the Plaintiff and PT Kuta to take over PT Natural Selaras’s position as MBW’s captive subcontractor. She said she was in a good position to do that because of her family’s interest in real estate business, her experience and position in PT Natural Selaras and her ability to recruit workers from PT Natural Selaras for PT Kuta. I accept Ariani was in a good position to recruit workers for PT Kuta in view of her previous employment in PT Natural Selaras and, more importantly, because at the time PT Natural Selaras was collapsing. I also accept that with good business talent, sufficient funds, adequate assistance from suitable professionals and experienced managers in the business like Soura and Colvin, a high school graduate could set up the Plaintiff and run the operation of PT Kuta. The question is whether that was the situation in the present case. 112.For reasons as I have already explained, I do not accept Ariani was a university graduate and that she started working in PT Natural Selaras in 2005 as its headquarters office manager. That said, I place no significance on her lack of a university degree. That is only a finding I have to make on the evidence. Ariani only started in September 2005 as a receptionist doing clerical and secretarial duties in PT Natural Selaras. She replaced Wahyuni as office manager at the earliest towards the end of December 2006. She could only have been the office manager of PT Natural Selaras for a few months performing executive or managerial duties during the first half of 2007 when it was in strikes. I accept that she had the services of the 1st Defendant to acquire the Plaintiff, set up its corporate structure and handle various other related legal and banking matters. However, she does not appear to have the know how to manage and to properly run a manufacturing business for beachwear. 113.It is significant that in answer to Mr Sherry’s question, Ariani said she did not know why BVI companies were involved in the Plaintiff’s corporate structure. She does not know much about the Plaintiff and its related companies which their true owner would be expected to know. It also appeared from Ariani’s deposition that there are MBW’s supervisory staff in PT Kuta’s factory supervising production and monitoring quality. She knows, for example, that Stephen Mockler worked in the warehouse department of PT Kuta claiming to be an independent contractor[26]; but she does not know what he did and even said she did not want to know. She knows PT Kuta subcontracts all its production to PT Petra Saki, which shares the same factory building with PT Kuta, because PT Kuta has no sewing machines. But, she does not know who decides to subcontract the production to PT Petra Sakti. That is the single and most important function of PT Kuta, which she as the sole director and shareholder must be expected to be familiar with. She appears to be wholly unconcerned about the operation in PT Kuta. Though she knows what was going on in the factory of PT Kuta, she had no role in bringing about what was going on. She said she just signed import or export documents. It seems someone other than Ariani is running PT Kuta. That “someone” could not be anyone other than Soura who directed the 1st Defendant to set up the Plaintiff’s corporate structure and open bank accounts, etc. This lends weight to the 1st Defendant’s argument that Ariani is a nominee of Soura or MBW in relation to PT Kuta. Again, Soura’s ability to engineer all these events strongly suggests he has control over PT Kuta and there exists some nominee arrangement between him and Ariana who is on record the sole director and 90% shareholder of PT Kuta through her ownership of the Plaintiff and the remaining 10% in her own right. 114.In Question 7 of her police statement, Ariani was asked about the payment of IDR 15 million to Mockler. She replied giving some details about Mockler using her telephone to message Soura who was in America and asked for the payment and that the payment was then arranged by Sri Lesari. Under cross-examination, Ariani at first said she did not remember, but later agreed that she paid IDR 15 million and IDR 35 million out of PT Kuta’s account to Mockler and Robin respectively at the direction of Soura. Soura disagreed that he had authorized those payments. On the totality of the evidence, I accept Ariani’s evidence. Her evidence had details and substance, whereas Soura’s was just a bare denial. This evidence supports the existence of a nominee relationship between her and Soura and that Soura was the man behind PT Kuta. 115.It is accepted that Ariani had invested IDR 500 million in the Plaintiff and its companies with funds from the Ong’s family, which she had repaid. In that respect, it is also accepted that her relationship with with Soura or MBW in relation to PT Natural Selaras may be different from her relationship with Soura or MBW in relation to PT Kuta. But on the totality of the evidence, I think the difference is one of degree, which goes to the content rather than the substance or nature of that relationship. 116.In conclusion, I find that Ariani could not have been the business woman who set up the Plaintiff and its corporate structure and run the manufacturing business on her own independent of Soura or personnel from MBW. Everything in PT Kuta was done for her. All she had to do was to sign documents. Clearly, she is a dummy or nominee of Soura who set up the Plaintiff and its corporate structure and operated PT Kuta. But the available evidence does not permit this Court to find out the precise content of that nominee relationship. 117.While the nature of Ariani’s ownership of the shares of and in the Plaintiff is hotly disputed, her legal ownership of those shares and the Plaintiff’s legal ownership of the funds transferred out of its bank account in SCB are indisputable. Because of the principle of corporate personality, whether Ariani is only a nominee holder of the shares of and in the Plaintiff is just a red herring. It could not be the law that a wrongdoer may unlawfully misappropriate the funds of a body corporate in its bank account without any legal consequence and keeps laughing on his way out of the bank leaving the body corporate without any remedy because its shares are held by its shareholder as a nominee for another. This dispute is irrelevant and counsel have rightly chosen not to include it in the list of agreed issues. Whether the 1st Defendant was agent of the Plaintiff when performing the corporate works and other services 118.The parties have no dispute that the corporate works relating to the Plaintiff were carried out by the 1st Defendant. The 1st Defendant insists that all works were carried out by him on Soura’s instruction to help Ariani or on Ariani’s instruction, but not the Plaintiff’s and he had no contractual relationship whatever with the Plaintiff. Ariani’s evidence is that the 1st Defendant performed those work on her or on the Plaintiff’s behalf. I do not think the 1st Defendant’s evidence is not reconcilable with Ariani’s except for his rather obstinate and unreasonable insistence that he did not perform the work on the Plaintiff’s instruction and had no contractual relationship with the Plaintiff. 119.As Ariani admitted that she did not understand why the corporate structure was necessary and why BVI companies were used, it is unlikely that she had the ability to give instruction to the 1st Defendant to carry out all those corporate works. In the circumstances and in view of the nominee relationship between Ariani and Soura or MBW, I accept that some or most of the corporate works were performed by the 1st Defendant on the instructions of Soura. However, apart from the corporate works executed during or shortly after the setting up of the corporate structure, there were routine banking duties performed by the 1st Defendant on behalf of the Plaintiff. According to Ariani, the 1st Defendant routinely visited and contacted representatives of SCB on the Plaintiff’s behalf between 2005 and 2012. He completed transfer forms for payments from the SCB account for her to sign and arranged for their delivery to SCB by courier. This is supported by the many emails between the 1st Defendant and Chandler Partners, or Ariani, or some Indonesian lawyers in connection with the corporate matters of the Plaintiff or PT Kuta. It is unlikely that Soura would have taken care of such routine matters. When shown the emails, the 1st Defendant readily accepted that it was Ariani who gave him instructions for those matters. Those routine works were clearly executed by the 1st Defendant on the instruction of Ariani. 120.Even on that basis, once the Plaintiff was placed under Ariani’s sole directorship, the work done on behalf of the Plaintiff, Dolphin Peace and Lakeway and all routine works such as the setting up of bank accounts and transfer of funds on behalf of the Plaintiff thereafter etc could only be done with the Plaintiff’s authority or on the instruction of Ariani as its sole director. Being a corporate lawyer, the 1st Defendant must be familiar with the concept of corporate personality that a company is distinct from its shareholders or directors, let alone a person only holding beneficial interest in its shares. He must also know that a body corporate cannot act by itself except through the mouth or hands of a natural person, such as its director or a duly authorized officer of the company. He must know Ariani is the sole director of the Plaintiff and Soura never was. He has adduced no evidence or argument to the contrary. He must also know that Soura could not be in any position to authorize works to be done for the Plaintiff and that anything which Soura instructed him to do must have been properly authorized by the Plaintiff, otherwise it would be unlawful and by executing such works he would become a party to a fraud practiced on the Plaintiff. He could not have done anything lawfully for the Plaintiff on the instruction of Soura unless with the consent of the Plaintiff or Ariani as its director. My finding that Ariani is a nominee of Soura could not change the fact that she is the sole director of the Plaintiff from whom only the 1st Defendant could obtain proper authority to act; and when he did so, he was an agent of the Plaintiff to whom he owed fiduciary duty. 121.The 1st Defendant argues that he could not have acted for both Ariani and the Plaintiff at the same time because of conflict of interest. I am not aware of any such principle of law. A lawyer may act for both parties if the parties’ interests are common. Indeed, it is his evidence that he had been an attorney for both Soura and his companies at one point. A lawyer may not act only if the factual situation is such that there is actual or potential conflict. The 1st Defendant has not adduced any evidence or argument of such conflict or potential conflict. This argument must fail. 122.Though Ariani had not signed any formal engagement letter with the 1st Defendant. She said between 2005 and 2012 she paid him approximately US$125,000 in cash for his professional services for herself and the Plaintiff, which were separate from those Soura paid for MBW. She settled in cash at the request of the 1st Defendant and that the payments were evidenced in the correspondence in her email account. But as she could not access her old email account after the kidnappers had deleted her emails and changed her password, she could not produce such supporting evidence. On the other hand, if the works were done for Soura or MBW as claimed by the 1st Defendant and as it is not his case that he provided the services for free, either of them must have paid him for his services. But he produced no evidence of such payment and provided no explanation why he could not. 123.Ariani’s account has substance. It is credible and supported by credible documentary evidence. The 1st Defendant’s account is a bare assertion without substance. I reject his evidence and accept Ariani’s. Though the emails exhibited by her covered the period between 2005 and 2008, it is her evidence, which I also accept, that the 1st Defendant routinely visited and contacted representatives of SCB for handling the Plaintiff’s account between 2005 and 2012. The 1st Defendant was being artificial and attempting to pull wool over the Court’s eyes when he said he acted for Ariani and not the Plaintiff. The same applies to the works he did for PT Kuta. There is no dispute that some of the services the 1st Defendant provided were legal services. In respect of the non-legal services, there is no dispute that they were not the kind of services provided by fiduciary agents. However, I am not satisfied on the face of the emails that the services provided by the 1st Defendant included investment services. I therefore find that he acted as a lawyer or at least a fiduciary agent of the Plaintiff in relation to the works he did for the Plaintiff and owed fiduciary duty to the Plaintiff at the time the kidnapping incident took place. The proposed real estate investment in America 124.According to Ariani, during her conversations with Soura and MJK in or around June 2012, she mentioned about her interest in obtaining a United States green card for herself and her family. Then, MJK told her that she might be able to obtain one by making a qualifying real estate investment in the United States and suggested her to talk to his father, ie the 2nd Defendant, who worked in the real estate business. Then Soura made a number of calls to the 2nd Defendant and gave him Ariani’s Skype details. In around late August 2012, Soura told Ariani that the 2nd Defendant would contact her and discuss about how she might make a qualifying investment in the United States. Shortly thereafter, Ariani had two telephone conversations with the 2nd Defendant through Skype about real estate matters and people they knew in common such as MJK, his nephew, Rico and the 1st Defendant. On 1 September 2012, she received an email from the 2nd Defendant confirming their earlier discussion on the EB-5 visa program which allows foreign investors to obtain a green card and information on real estate opportunities in the Boston area. She had never met the 2nd Defendant, but had three discussions with him on the telephone and recognized his strong Boston accent and distinctive gravelly voice. She produced a hard copy of his email to her on 1 September 2012. 125.The 1st Defendant was not involved in the discussions about the green card or real estate investment mentioned above. He did not challenge the above evidence. He disputed the authenticity of the 2nd Defendant’s email, but did not produce any supporting evidence. 126.MJK’s evidence is mainly about the insurance proceedings, Sapto’s murder, Ariani’s background, her romantic relationship with Soura, the nominee arrangement between Soura and Ariani. He badmouthed Soura. He talked about Soura’s history of forgery, his forgery factory in a hotel room, the secretive way in which Soura communicated with him and instructed him to locate and tamper with witnesses in the insurance proceedings. He said Soura was using the Plaintiff as a vehicle to conduct his illegitimate business. None of these is relevant to the controversies in dispute in the present case. He spoke lowly of Ariani and said she hustled men via online dating sites. He accused the Plaintiff, essentially referring to Ariani and Soura, of intentionally or recklessly misconstruing his father as the 2nd Defendant in an obvious attempt to secure a judgment. But he did not challenge Ariani’s evidence that it was he who suggested her to contact the 2nd Defendant about obtaining a green card by making a qualifying real estate investment in the United States. Ariani had met MJK many times in the office PT Kuta between 2011 and 2012, presumably when MJK was engaged by Soura to collect evidence for MBW for the insurance proceedings. This evidence also suggests that Ariani could not have mistaken MJK for his father or vice-versa and maliciously brought his father into these proceedings as the 2nd Defendant. 127.On the totality of the evidence, I am satisfied that the email is an authentic copy. On the facts, Ariani subsequently obtained a green card. That supports her expressed intention to get one back in June 2012. If she had not raised the question about getting a green card during her conversation with Soura and MJK in June 2012, the chain of events and the emails would not have followed. Ariani is not a sophisticated person. She could not have dreamt up all those events and with such particulars and consistency. I accept her account as summarized above. The events shortly before the kidnapping incident 128.Then, shortly before the kidnapping incident took place, the 2nd Defendant made numerous telephone calls to Ariani, but she missed them all except one, which was the third telephone conversation she had with him. In that telephone conversation, the 2nd Defendant asked her to meet with the 1st Defendant to discuss a potential real estate investment and told her that the 1st Defendant had all details. He also sent her another email and numerous text messages pushing her to meet the 1st Defendant. As the kidnappers had changed the password of her email account and deleted her emails, she could not produce any of those emails. 129.Ariani not having responded, the 1st Defendant called her in late September or early October 2012 for an impromptu meeting. He said he was on his way by taxi to her home and wanted to introduce his dog to her. After he arrived, he started looking around, opening every door inside her house and checking the rooms and the belongings without her permission. He asked Ariani with whom she was living and took a picture of the street number of her house. Then, he left in the same taxi waiting outside. Ariani and Yunimas found his behaviour strange and unsettling. 130.Thereafter, the 1st and 2nd Defendants repeatedly telephoned Ariani and pressed her to meet with the 1st Defendant to pursue a potential real estate investment in the United States suggested by the 2nd Defendant and for the 1st Defendant to return documents and computer equipment which the 1st Defendant had previously borrowed from her. The 1st Defendant stressed the urgency in the investment opportunity and suggested to meet Ariani at the Citywalk shopping mall in Jakarta. Ariani felt uneasy and consulted Soura. Soura said she was being dramatic and encouraged her to meet with the 1st Defendant. Thinking that the reasons for the meeting were legitimate, Ariani agreed to meet with the 1st Defendant and brought Yunimas along as a precaution. 131.The 1st Defendant disputed Ariani’s evidence. He admitted visiting Ariani at her home with his dog, but gave a different purpose for and account of the visit. He said his purpose was not to show Ariani her new dog, but to ask her to babysit his dog as he had to go to Singapore for a couple of days to renew his visa. He denied snooping around in her home. He denied he took a photograph of the street number, but admitted that he took a photograph of his dog playing with Ariani’s dog. 132.If the purpose of the 1st Defendant’s visit to Ariani’s home was to ask her to babysit his dog, it would be illogical for him to make an impromptu visit without even first finding out if Ariani was at home before getting on a taxi and without exploring if Ariani would agree to babysit his dog or would be able to do so. His alleged purpose could not be a good reason for an impromptu visit. More significantly, he mentioned nothing in his evidence about any discussion with Ariani about babysitting his dog and whether any agreement or arrangement has been reached for that matter. I accept Ariani’s evidence and reject the 1st Defendant’s. Probably, when the 1st Defendant informed Ariani about the visit, he had never thought the purpose of the visit would be raised in these proceedings. At the time, he simply uttered without much thoughts a casual reason of wanting to show her his new dog in order to make the visit. His evidence about babysitting his dog is an afterthought. 133.The 1st Defendant denied the purpose of Ariani’s visit to his apartment was to review documents as he was no longer working with Soura and had no documents to review. He said he had no intention to propose any real estate investment opportunity to her and had never discussed the same with her. He had to leave Indonesia in a week or so and Soura had instructed him to give the two printers, which he had purchased and used for the insurance proceedings to Ariani. The purpose of Ariani’s visit to his apartment was to pick up those printers. He said 90% of his conversation with Ariani was concerned with her attempts to try and get him find her a “white guy” to marry. 134.The 1st Defendant’s last assertion above may be quickly dismissed as another of his attempt to badmouth Ariani. If it was his case that Soura was attempting to develop a romantic relationship with Ariani in 2006, they must have established such a relationship by 2012. Given the benefit Ariani would derive from that relationship, of all the people in the world whom Ariani would seek assistance to find her a “white guy”, she would not have asked the 1st Defendant. This is because she must realise there was a very high risk that he would inform Soura and that would damage her relationship with Soura. 135.In June 2012, MJK might have for no evil purpose suggested Ariani to talk to the 2nd Defendant in connection with her wish to apply for a green card. But, since late September or early October, it appears that everything that happened were calculated to happen. The 1st and 2nd Defendants were actively pressing Ariani for a meeting to discuss real estate investment. Just a week or so before the kidnapping incident, the 1st Defendant escalated his action by making an impromptu visit to Ariani’s home, snooped around and asked who else were living in her home. After the visit, he continued to press for the meeting until eventually Ariani agreed to meet. Around the same time, he had Suryadi rented the apartment for him. All these happened against a backdrop of emails from MJK chasing Soura for settlement of his invoice since May with increasing hostility until 4 October 2012. Then the kidnapping incident happened three days later. The plan to recover against the Plaintiff for the services 1st Defendant’s and MJK’s provided to Soura might have germinated at around that time. The kidnapping incident 136.On 7 October 2012, Ariani and Yunimas waited for the 1st Defendant at the main entrance of Citywalk shopping mall. The 1st Defendant arrived when Ariani was talking with Soura on the phone expressing her worry about the meeting. At Soura’s suggestion, she passed her phone to the 1st Defendant. She heard Soura and the 1st Defendant talked about returning the equipment and documents and about real estate development opportunities. Instead of going direct to his apartment, the 1st Defendant showed Ariani and Yunimas the facilities of his apartment, including the swimming pool. While showing them around, he kept looking around and sending text messages with his phone as if he was looking for someone and stalling for time. Then, after about 15 minutes, he took Ariani and Yunimas to his apartment. 137.Upon arrival, the 1st Defendant asked if they wanted to have some water and made a phone call seemingly to arrange for food delivery or room service. A few minutes later, David and three unknown men entered shouting “police, police”. David, then brandishing a gun, handcuffed Ariani and Yunimas and took away their mobile phones. Ariani and Yunimas were taken into the bedroom and kept watched by David or one of the unknown men round the clock from 7 to 11 October 2012. The kidnapping incident is not in dispute. The parties’ account about how the kidnappers entered differed in some immaterial details, such whether all were carrying guns or police badges, whether one of them pointed a gun at the 1st Defendant’s head or body, etc. 138.Ariani was cross-examined on her imprecise description of the kidnappers in her witness statement sometimes as “unknown men” and sometimes as “policemen” as if to suggest she knew the incident was a police operation. I think that is splitting hair. At the shock of the moment, Ariani might have at first believed the kidnappers were real policemen. As the events unfolded and the situation settled down, I accept that she knew the incident was not a police operation, the kidnappers were not real policemen and the alleged “chief police officer” who spoke to her on the telephone on the following day was also not a real policeman but Suryadi whom she knew was an affiliate of the 2nd Defendant. I think Mr Sherry was reading too much into her carelessness. I do not find it necessary to resolve these differences in insignificant details or the imprecise description of the kidnappers used by Ariani, but focus my analysis on her allegations of what the Defendants and the kidnappers did. 139.According to Ariani, she actually knew some of the kidnappers from the meetings which she attended with Soura as his interpreter. She recognised David and had seen him accompanying Soura and the 1st Defendant in those meetings in 2007. David was previously hired by the 2nd Defendant’s family as a detective and security guard in Indonesia. He had connections with the police or military and was hired by MJK for investigative and security work in Indonesia. She had also seen David, Rico Siswandi (“Rico”) and Suryadi attending meetings with Soura, the 1st Defendant and MJK in the office of PT Kuta between 2011 and 2012 relating to the insurance proceedings. Ariani’s familiarity with these people was not disputed. 140.On the first day (“Day 1”), ie 7 October 2021, the 1st Defendant forced Ariani to sign transfer forms for outward remittance of US$2,100,000 from the banks accounts of the Plaintiff and Lakeway. The forms were completed with details of the accounts in the same way as the 1st Defendant used to fill in the bank transfer forms for her. He said:
After signing, the 1st Defendant or David took the forms from Ariani. Then, the 1st Defendant left saying he wanted to go to the police station. 141.David forced Ariani to provide the login details of her email accounts. He asked Ariani if she recognized him. For her safety, Ariani replied in the negative. David told Ariani that she was kidnapped because she owed the 2nd Defendant money, but he did not disclose further details. After she was released, Ariani discovered she could not access her two email accounts with Yahoo while her emails in her account with MBW were permanently deleted. The kidnappers did not return her and Yunimas’ mobile phones to them. Hence, she could not recover most of her telephone and email records relating to the 1st and 2nd Defendants. 142.Though Ariani and Yunimas were held inside a room, the door was sufficiently “slightly open” which allowed them to see outside. They saw the 1st Defendant returned to the apartment everyday and that he could go freely in and out of the apartment without being taken around by the kidnappers, suggesting he was part of their team. 143.On 8 October 2012 (“Day 2”), Ariani was asked to speak on the telephone with someone claiming to be a “chief police officer” who told her to cooperate and follow the rules if she wanted to be released. She recognized the voice of that so-called “chief police officer” was that of Suryadi whom she had met many times in 2011 and 2012. She also heard the 1st Defendant’s voice in the apartment. 144.On 9 October 2012 (“Day 3”), the 1st Defendant returned. He asked Ariani to call SCB to confirm the instructions for the transfers. He then took over the conversation with the bank staff. Ariani remembered three such calls had been made. During some of the calls, she was crying hysterically and the 1st Defendant took over the phone and directly gave wire instructions to the bank officers explaining that she was not feeling well. She also saw the 1st Defendant making direct calls to the bank officers and other officers of SCB responsible for handling and processing the transfers. During her detention, she overheard conversation between David, the 1st Defendant and the 2nd Defendant on speaker phone. She recognized the 2nd Defendant’s strong Boston accent. She heard him asking how much longer should they keep her and Yunimas as captives and the others replied that the bank would call them back to verify the transfer. 145.On 10 October 2012 (“Day 4”), a sum of US$2,100,000 was transferred out of the Plaintiff’s bank account with SCB to the bank account of PT Soeria with Bank Mandiri (Persero) PT. 146.On 11 October 2012 (“Day 5”), the 1st Defendant told Ariani that the funds had been received in Indonesia. Then, David and two of the kidnappers took Ariani and Yunimas to a restaurant by taxi. In the restaurant, they met Suryadi and the 1st Defendant together with three other unknown men. Suryadi and the 1st Defendant told Ariani and Yunimas that they should leave Indonesia and threatened to kill them if they were to report the kidnapping to the police. Then, the 1st Defendant passed his phone to Ariani and told her to speak with “Mike”, referring to the 2nd Defendant. Ariani recognized from the strong Boston accent that the person speaking to her was the 2nd Defendant. During the call, the 2nd Defendant threatened to kill her and her family if she were to report the matter to the police. He said his family had contacts throughout the world and could find her wherever she went. Ariani was frightened as she believed the 1st and 2nd Defendants had connections with criminal underworld in Indonesia through the likes of David and his associates, police and paramilitary and the 1st Defendant knew where she lives. 147.The 1st Defendant’s testimony in court is confusing and inconsistent with his evidence in his original witness statements. His oral testimony was given along the lines of his Draft 2nd Supplemental Witness Statement for which leave to file had been refused along with the dismissal of his 1st Summons. I shall refer to his oral testimony as the “latest version” of his account of events and the account under his Witness Statement and Supplemental Witness Statement (collectively, his witness statements”) as the “original version”. Where there were inconsistencies between the two versions, he confirmed the latest version as correct. He tried to reconcile the inconsistencies between the two versions by explaining that what he said in his witness statements was just a summary of all the events which he tried to clarify in his testimony in court. Even on that explanation, the inconsistencies could not be reconciled. The following is a reconstruction of the latest version of his account of events based on his oral testimony in court and his witness statements. 148.According to the 1st Defendant, about 15 minutes after Ariani and Yunimas had arrived at his apartment, three men in police uniforms with police badges and carrying guns knocked on the door. Then he gave two inconsistent versions of how those men came in. In his original version, he said believing that those men were on legitimate business, he reluctantly let them in. In his latest version, he said the men pointed a gun at his face and forced their way in. When the inconsistencies were pointed out to him, he maintained that both versions were correct. The inconsistencies are so contradicting that they could not be reconciled or be reasonably excused due to lapse of time and confusion of the moment. Whether he let the kidnappers in or they forced their way in is of no big consequence in the overall picture and that there is no dispute that three or four kidnappers entered claiming to be policemen. But his inability to choose a correct version is worrying and suggests he was not sure what his case was and found it difficult to make up his mind what story to tell. 149.He continued and said that the men handcuffed him by force before they handcuffed Ariani and Yunimas. At the time, he saw some documents laid out next to Ariani. Again, he gave two different versions. In his latest version, he said he saw the names of Dolphin Peace, Admire Best, Sharp Outlook and Ariani at the top of the documents. But in his original version, he said, obviously referring to the document with Ariani’s name on top, that the document was about transferring money to Ariani personally. He trimmed down his original version, but the difference is one of no significance. What else could a bank document with Ariani’s name on top among three other undoubtedly bank transfer documents could be? The 1st Defendant’s evidence about seeing this document under whichever version defies logic. It is nonsensical to suggest that the kidnappers came to the 1st Defendant’s apartment with guns and bank transfer forms relating to the Plaintiff’s and its associated companies’ bank accounts, happened to find their director and forced her to sign among other documents, bank documents transferring money from her company to herself. The evidence suggests that he did not have a true story to tell according to what he had experienced, but was trying to improve a previous imperfect concoction which he had made as the proceedings progressed. 150.Another inconsistency on this same issue is whether the 1st Defendant saw those documents “a few minutes” after he was handcuffed as he said in his latest version or “after some time being held at gun point” as he said in his original version. When confronted with the inconsistency, he tried to explain it on the basis that his original witness statement was a summary of two sightings, one on Day 1 of the kidnapping incident and one on Day 3 when he was brought back to the apartment. By no reading of his original witness statements could I see them to be a summary of what happened on two days. They only gave one account of what he saw. I repeat my observation about his change of evidence in the preceding paragraph. 151.He said Ariani and Yunimas were handcuffed and detained in one room while he was detained in the sitting room. The men questioned him about Sapto’s murder and the money Soura owed to the police. They searched his apartment, mobile phone, passport and one of the printers. He was then taken to a vacant building in central Jakarta which he called a “police substation” where he was detained for a few days. He had no access to phones and was denied access to the United States Embassy. 152.On Day 3, he was taken back to the apartment. He saw Ariani was not in handcuffs, looked quite unkempt and appeared to be crying to someone over the telephone. She showed him some documents which looked like letters with withdrawal requests, each in the amount of US$2,100,000. Ariani handed the telephone over to him. The caller was from SCB and wanted confirmation of the names of the four companies on the documents and the respective bank account numbers before proceeding with the requests. The four companies were the Plaintiff, Dolphin Peace, Admire Best and Sharp Outlook. After he confirmed the details with the caller, the phone was handed back to Ariani. Ariani seemed happy and told him, “Now maybe Scott (ie Soura) can buy me a house.” Then, he was taken back to the “police substation”. 153.On Day 5, the 1st Defendant was released with Ariani and Yunimas. Surprisingly, he saw Suryadi gave two new phones to Ariani. Then, Ariani walked away laughing and gave the new phones to the police officers. In his latest version, he said Suryadi arranged for his release. Suryadi told him that the Indonesian police were looking for Soura and information about Sapto’s murder. Suryadi said that Soura owed the Indonesian police money. Then the 1st Defendant replied that it was not his problem as he was no longer working for Soura. In response, Suryadi said that was the reason why he was released. In his original version, the 1st Defendant mentioned being questioned by the kidnappers about Sapto’s murder and the money Soura owed the Indonesia police; but mentioned nothing about his conversation with Suryadi. If this conversation had really taken place, he should have included it in his “summary”, ie his original witness statements to substantiate his claim that he was a victim of the kidnapping incident. There would be no reason for it to be raised for the first time in his Draft 2nd Witness Statement or in his oral testimony. This conversation and indeed all the new allegations raised in his Draft 2nd Witness Statement bear the hallmark of recent concoctions. I repeat my earlier observation that he was not telling the Court what he had truly experienced whether in his original witness statements or in his oral testimony, but a concoction which he had been trying to improve after the PTR. I accept Ariani’s and Yunimas’ evidence of what happened during the kidnapping incident and reject the 1st Defendant’s. Events after the kidnapping incident 154.After Ariani was released, she called Soura, who was then in America. Soura called MJK as Soura knew him better than the 2nd Defendant. MJK swore at Soura and said Ariani owed him money, that Soura had left him “hanging” because MBW did not continue to hire him after the insurance proceedings were completed. He told Soura to “stay out of it” and hung up. MJK accepted that he had received a call from Soura, but denied the content of that conversation. Both Soura and MJK are not reliable witnesses. Having regard to the totality of the evidence, as between the two of them, I prefer Soura’s evidence on this issue. 155.Soura attempted to call the 2nd Defendant a number of times. It was only until 14 October 2012 that Soura was able to reach him by Skype. The 2nd Defendant was abrupt and angry that Soura called him and MJK. He swore at Soura and said it was an issue between his family and Ariani, that Ariani owed his family money and they did what they need to do in order to get the money back. When Soura tried to confront him, the 2nd Defendant said it was none of his business and hung up. Soura’s evidence is supported by Ariani’s evidence that David said she was kidnapped because she owed the 2nd Defendant money. Ariani’s and Soura’s evidence reflect the 2nd Defendant’s sentiment about the money Soura owed his son, MJK, On Soura’s evidence, the 2nd Defendant’s response may be taken as an implied admission that he was involved in the kidnapping incident to recover money which Ariani owed his family and that the kidnapping incident was an issue between his family and Ariani. The 2nd Defendant knowingly did not participate in these proceedings despite having acknowledged service of the writ and did not contest Soura’s evidence. Having regard to the totality of the evidence, I accept Soura’s unchallenged evidence. 156.Soura also confronted the 1st Defendant through Skype. The 1st Defendant admitted that he participated in the kidnapping of Ariani but claimed he was forced to do it. When pressed for details, he said Ariani owed him a lot of money but would not say who forced him to do it. He sounded anxious, stressed and evasive. 157.On or around 22 October 2012, Soura informed Colvin about the kidnapping incident. As the two of them were talking on the phone, the 1st Defendant called Colvin and left a message asking Colvin to return call. Colvin called back. Though he could not recall the exact words used throughout his conversation with the 1st Defendant, he recalled with certainty that the 1st Defendant said Ariani and Yunmas had been violently kidnapped and that the 1st Defendant admitted his involvement. He said the 1st Defendant at first claimed he was a victim of the incident and asked Colvin not to believe everything he heard. But eventually, he admitted he had taken part in the kidnapping incident but was not the mastermind, that someone had made him do it and he felt bad about it. When pressed further, he became nervous and evasive. He did not tell Colvin who had forced him to kidnap Ariani, why he was forced to do so or why he did not report the incident to the police or contact Soura or anyone in MBW. 158.Soura’s evidence is corroborated by Colvin’s evidence of his telephone conversation with the 1st Defendant eight days later. Neither Colvin nor MBW (as now constituted without Soura) has any interest in these proceedings. I consider Colvin a credible witness. Having weighed Soura’s evidence against the 1st Defendant’s, having warned myself that Soura was an unreliable witness and having regard to the totality of the evidence, I accept Soura’s and Colvin’s evidence about their conversations with the 1st and 2nd Defendants and MJK as summarized above. Finding on the kidnapping incident 159.The Plaintiff’s case is very straight forward. Most of Ariani’s evidence on the centerpiece of the Plaintiff’s case is not in serious dispute. Her evidence is cogent, consistent and logical. She is, as I have found, an unsophisticated person. As I have also shown, even though she could tell a lie, she does not have the ability to keep it. It is not difficult to find out when she was telling the truth and when she was not. I do not accept her evidence about her personal background and the absence of any nominee arrangement between her and Soura or MBW relating to the shares in the Plaintiff, PT Kuta, Dolphin Peace, Lakeway, PT Natural Selaras, Admire Best and Sharp Outlook. I reject her evidence that her police statement was fabricated by the police and that she signed it under threat of prosecution. These findings weighed heavily against her credibility. However, notwithstanding searching cross-examination by Mr Sherry, she was able to give a very consistent account of the centerpiece of the Plaintiff’s case. Though she is found to have lied on the three issues above, those blemishes have no seriously adverse impact on the centerpiece of the Plaintiff case. Besides, her evidence about the impromptu visit and kidnapping incident is corroborated by Yunimas’ untarnished evidence. 160.I accept Ariani’s evidence about the 2nd Defendant’s discussion with her about the green card and qualifying investment and his pressing for the meeting, the 1st Defendant’s impromptu visit to her home, and the kidnapping incident. I find the impromptu visit was not made for the purpose of arranging babysitting for the 1st Defendant’s dog. I draw the inference that it was a scouting visit to find out if her home could be a safe place to stage the kidnapping incident. I find the meeting in the apartment was not arranged for the purpose of returning documents or computer equipment to Ariani, or for the 1st Defendant to introduce the urgent real estate investment opportunities to her. The impromptu visit and the meeting were just pretexts. Presumably, the 1st Defendant found Ariani’s home not a suitable venue, he had Suryadi rented the apartment to stage the kidnapping incident. 161.The knock on the door of the 1st Defendant’s apartment soon after Ariani’s arrival could not have been a mere coincidence. Why would the 1st and 2nd Defendants be repeatedly pressing for the meeting at that particular time and place? How could the kidnappers have known that Ariani would be in the apartment at that time? How could they have known that the 1st Defendant would also be in the apartment at that particular time and be able to assist in the transfer of funds by talking to the bank officers? On Ariani’s evidence and even on the 1st Defendant’s evidence, the bank account particulars were already filled in on the transfer forms placed on the table. Even such fine details had been taken care of by the kidnappers beforehand. The transfer of funds would not have been possible unless all these coincidences happened together. The inference to be drawn from these circumstances is that all that happened during the kidnapping incident and the transfer of funds was the result of the execution of a carefully prepared plan. 162.The 2nd Defendant created the purpose and urgency of the meeting. He and the 1st Defendant pressed for the meeting and jointly set up the meeting in the 1st Defendant’s apartment which provided the occasion for the kidnapping incident to take place. Of all the people present in the apartment, the 1st Defendant is the only person other than Ariani who has knowledge of the particulars of the Plaintiff’s bank account. He was an indispensable member of the kidnapping team. He participated actively by “persuading” Ariani to sign the transfer forms and assisted in effecting the transfer by explaining to the bank staff about the transfer and confirming the account particulars. There is no evidence that he was forced by the kidnappers to assist in the transfer. He came in and out of the apartment freely and unrestrained, suggesting and evidencing that he was a member of the kidnapping team. 163.Apart from pressing for the meeting, the 2nd Defendant talked with the 1st Defendant and David over speaker phone during the kidnapping incident to check on the progress. Ariani recognized his strong Boston accent as he was speaking over the speaker phone. That suggests he was also an active party and co-mastermind in the kidnapping incident. As Ariani and Yunimas were released on Day 5, the 1st Defendant together with Suryadi told them to leave Indonesia and threatened to kill them if they were to report the incident to the police. He then passed his phone to Ariani so that she could hear the threat repeated to her one more time from the mouth of the 2nd Defendant. The 2nd Defendant then pulled the curtain down with his threat to kill her and her family should she make a report to the police. The 1st and 2nd Defendants’ conduct during the kidnapping incident shows that they, David, Suryadi and the other three unknown men were acting in concert as a team pursuant to a joint enterprise to kidnap Ariani and cause her to transfer funds from the Plaintiff’s bank account in SCB to PT Soeria under their control. The 1st and 2nd Defendants and were the principal perpetrators and masterminds, while the other five participated in a lesser role as accessories. The 1st Defendant operated on site, while the 2nd Defendant operated from a remote station in the United States. I made no finding on the participation by Rico because the evidence against him are all hearsay from unverified source. 164.Having warned myself about my adverse finding of Soura’s credibility, I accept his and Colvin’s evidence about the 1st Defendant’s and the 2nd Defendant’s partial or implied admission of their involvements in the kidnapping incident, but not their reason for the kidnap and transfer of funds. There is no evidence about Ariani or her family owing them or their families money. Neither the 1st Defendant nor the 2nd Defendant elaborated on the debt which they alleged Ariani owed them. The 1st Defendant never claimed before this Court that he was owed any money by Ariani. The reason put up by the 1st or the 2nd Defendant in their conversations with Soura reflect their sentiment about Soura owing the 1st Defendant and MJK money for their services and their strong belief that Ariani is Soura’s nominee in relation to the Plaintiff and that they have the right to recover against the Plaintiff in place of Soura. In that regard, it should be noted that between 29 May 2012 and 4 October 2012 MJK had been pressing Soura for payment of his invoice with increasing hostility. But, all his demands fell on deaf ears. Four days after MJK’s last email, the kidnapping incident occurred. It was plausible that as the relationship between MJK and the 1st Defendant on the one part and Soura on the other turned sour, the plan to rob the Plaintiff as a means to recover against Soura began to germinate. 165.In rejecting the 1st Defendant’s evidence, I have not lost sight of the fact that as the 1st Defendant is an attorney of good standing and is personally known to Ariani, it would be most unlikely that he would have participated in such an unlawful enterprise. I have also borne in mind his defence that he was a victim of the kidnapping incident. However, on the fact, there is ample evidence of his active participation and motive in the kidnapping. 166.As for the 1st Defendant’s defence that he was a victim of the kidnapping incident which was a deal-gone-wrong between Soura and the Indonesian police, this defence is rested on his proposition that Soura had a deal with the Indonesian police about his involvement in Sapto’s murder and bribed the police for Ariani’s release. However, the deal went awry after Soura failed to continue paying the police. This is tantamount to saying that it was the Indonesian police who kidnapped Ariani and not the 1st Defendant. 167.The kidnapping incident was staged as a police operation with the kidnappers wearing police uniform, badges, brandishing gun or guns and shouting “police, police”. At some stage, someone claiming to be a “chief police officer” called and talked to Ariani telling her to co-operate. The 1st Defendant claimed he was questioned by the police officers about Sapto’s murder. After the transfer forms were signed, he left, deliberately saying that he was going to the police station. Obviously, that was done to impress Ariani that the police was behind the kidnapping incident and to cover up his own involvement. 168.The kidnapping incident could not have been a deal-gone-wrong between Soura and the Indonesian police because none of the kidnappers who were actively involved were policemen. Ariani actually recognized one of them was David. She recognized from his voice that the person claiming to be a “chief police officer” was Suryadi. She knew they were associates of MJK and the 1st Defendant involved in collecting evidence for Soura for the insurance proceedings. If the incident was a police operation, the police would have planned it to take place in Ariani’s home or office or even in the police station. Why would they have planned it to take place in the 1st Defendant’s apartment? Why would the police bring in the 1st Defendant and run the risk of exposing their criminal activity to one more potential witness? Having regard to all the antecedent events, the only irresistible inference to be drawn from all the circumstances is that the kidnapping incident was the joint enterprise among the 1st and 2nd Defendants, Suryadi, David and the three unknown kidnappers and not the conduct of the Indonesian police. 169.Soura was not the victim of the kidnapping incident nor the legal owner of the transferred funds. For this defence to be credible, the 1st Defendant has to show that the relationship between Soura and the victim was such in the eyes of the police that the police would consider it a practical alternative to recover against the Plaintiff in place of Soura. That explains why the 1st Defendant persistently and obstinately pressed on with the nominee issue. I accept that the 1st Defendant has shown a nominee relationship exists between Ariani or the Plaintiff and Soura, which provides that nexus. But, the 1st Defendant still has to prove the “deal” between Soura and the police which went wrong. Except for some hearsay evidence of doubtful credibility from Suryadi retold by the 1st Defendant whom this Court found is also of doubtful credibility, there was absolutely no evidence to support his proposition or the deal. Suryadi was not called to testify. I could give no weight to the 1st Defendant’s evidence from this source. 170.Furthermore, on the fact, Ariani was never implicated in Sapto’s murder. On the second day after Sapto’s death, she was expressly treated as a witness and released after giving her police statement. She was not even treated as a suspect. As for Soura, he has apparently been cleared of Sapto’s murder. Although a wanted notice had been issued against him in August 2008, he appeared in October 2012 before the North Jakarta Police Station with Ariani reporting on the kidnapping incident. Obviously, he has been cleared of the murder charge. There was no basis for a deal. The so called “deal” could not even get off the ground, not to mention the absence of evidence that the deal had gone wrong and how it had gone wrong. There is not a scintilla of evidence to support the existence of a deal between Soura and the police and money owing by Soura to the police but the 1st Defendant’s bare suspicion. 171.On the other hand, the nominee relationship proved by the 1st Defendant provides the very basis or evidence on which the Defendants’ motive to recover from the Plaintiff, the alter ego of Ariani and Soura’s nominee, money which Soura owed them may be inferred. First, it is the Defendants’ or at least the 1st Defendant’s, strong belief that Ariani holds the shares in the Plaintiff as nominee of Soura or MBW. Second, it is MJK’s unequivocal evidence that Soura owed him and the 1st Defendant money for their services provided to Soura or MBW. This is evidenced by his increasingly hostile email with profanity to Soura just four days before the kidnapping incident. His hostility was also displayed in his testimony in Court. Significantly, when Soura confronted them on or around 22 October 2012, about ten days after the kidnapping incident, they both pointed their fingers at Ariani, accusing her of owing them or their family money. But, there is not a scintilla of evidence that Ariani owed them money. In the circumstances and reading between the lines, it was highly probable that the 1st and 2nd Defendants were telling Soura indirectly that because he owed them money under the unpaid invoice, they recovered it against the Plaintiff because it is owned by Ariani as his nominee and that she and Soura are one family in view of their romantic relationship. In other words, they were justifying their action in robbing the girlfriend to repay the boyfriend’s debt. This reading ties in very well with the 1st Defendant’s and MJK’s belief that Ariani is Soura’s nominee and that they are having a romantic relationship. This reading is also consistent with the 1st Defendant’s readiness to take the law into his own hands in contemplating to prison break Soura, MJK and others from custody. It seems they are claiming the transferred funds as a right of set off and have no concern that their identities were known to Ariani or Soura. This also explains why they were so ready in making the admission to Soura. There is no burden on the Plaintiff to prove the Defendants’ motive. Its case is well supported by solid evidence. Suffice it is to say, the 1st Defendant’s proposition of a deal-gone-wrong may be safely dismissed as a mere suspicion which does not cast any doubt on the Plaintiff’s case. 172.The nominee issue is a double blade sword. It supports the factual basis on which the 1st Defendant’s failed proposition was based. But even more so it provides evidence on which the Defendants’ motive for staging the kidnap may be inferred. On the evidence, this sword cuts the 1st Defendant more deeply than the Plaintiff. Towards the end of his cross-examination, the 1st Defendant admitted that he was no longer certain whether the police were involved in the kidnaping incident. His proposition of a deal-gone-wrong wholly collapsed in his own mouth. FINDING UNDER THE AGREED LIST OF ISSUES 173.The parties have agreed to a list of fourteen issues to be determined in this action. The factual basis of these issues has been discussed in the above subsections; and some of the issues have actually been determined. (1) Whether the 1st Defendant kidnapped Ariani and (3) whether the 2nd Defendant was involved in the kidnapping incident 174.The 1st and 2nd Defendants, David, Suyardi and PT Soeria were parties to the joint enterprise to kidnap Ariani and to procure, cause and/or facilitate the illegal transfer and receipt of the Plaintiff’s funds. The 1st and 2nd Defendants were the main perpetrators or masterminds. The others were accessories. The finding on these issues are “yes”: see Paragraphs 159 -172. (2) Whether Ariani was the sole authorized signatory for the Plaintiff’s account at SCB 175.The Court is satisfied on Ariani’s unchallenged evidence that she was the sole authorized signatory for the Plaintiff’s account at SCB. (4) Whether the 1st Defendant was the lawyer, investment advisor or agent of the Plaintiff 176.The 1st Defendant has no dispute that he executed the corporate works relating to the Plaintiff, but said that he did so on the instruction of Soura and or Ariani but not on the instruction of the Plaintiff or as its agent. This issue has been fully canvassed in Paragraphs 118 - 123. Some of the corporate works may fairly be categorised as legal works which may be performed by a lawyer and some as works which are usually performed by a fiduciary agent. But the evidence was not extensive enough to satisfy me that he acted as investment advisor as well. Hence, I find he acted in all material times as lawyer or fiduciary agent of the Plaintiff. (5) Whether the 1st Defendant and/or the 2nd Defendant (and their associates) procured, caused and/or facilitated the illegal transfer 177.The 1st and 2nd Defendants, David and Suryadi were parties to the joint enterprise to procure, cause and/or facilitate the illegal transfer. The 1st and 2nd Defendants were the main perpetrators or masterminds. The others were accessories. The answer is “yes”: see Paragraphs 159 -172. (6) Whether the 1st and/or 2nd Defendants received the said sum 178.On the facts, a sum of US$2,100,000 was transferred from the Plaintiff’s bank account with SCB to the bank account of PT Soeria on 10 October 2012. The transfer document described the Plaintiff’s payment as an “investment in coal manufacturing”, a business which the Plaintiff had never engaged in. Neither the Plaintiff nor Ariani owed any money to the 1st Defendant, the 2nd Defendant or PT Soeria, or had any business relationship with PT Soeria. There is no conceivable reason for the Plaintiff paying such a huge sum of money to PT Soeria or for PT Soeria to receive the same from the Plaintiff. 179.On the Court’s finding, the meeting at the 1st Defendant’s apartment, the kidnapping and transfer of funds were all premeditated and carried out by the 1st and 2nd Defendants, David, Suryadi and other unknown men as a joint enterprise. The transfer of the money from the Plaintiff to PT Soeria is also part of their joint enterprise. It is manifestly obvious that PT Soeria was a dummy or puppet of the 1st and 2nd Defendants who were the masterminds of the kidnapping incident and transfer. Even though there is no direct evidence that they or either of them had received the said sum, they would not have staged the kidnapping incident and taken all the risks for nothing. The inevitable inference is that they had control and possession over PT Soeria and the said sum in its bank account. 180.For avoidance of doubt, I find PT Soeria is also a party to this joint enterprise. For this reason alone, even though the said sum found its way into the bank account of PT Soeria, it is and was held by PT Soeria for itself and for each and every member of the joint enterprise jointly. All of them are liable to the Plaintiff for the funds transferred. (7) Amount of the Plaintiff’s loss 181.The Plaintiff’s loss was US$1,631,075, which is the amount transferred less the sum of US$468,925 recovered and returned by the Indonesian police, ie the said sum. The 1st Defendant said he heard from a friend in the Philippines who had allegedly heard from Soura that the Plaintiff had recovered substantially all or the entirety of the transferred sum. He did not identify who this friend was or explain how, when or under what circumstances his friend was able to obtain the information from Soura. He did not even put these particulars to Soura. His allegation is triple hearsay. He is an exaggerating witness. Given the adverse view I formed of his credibility, I give no weight to such evidence. (8) Whether the said sum was held by the 1st Defendant and the 2nd Defendant on constructive trust for the Plaintiff 182.It is well settled legal principle that where a person fraudulently or unconscionably receives or retains property belonging to another, the law of equity would impose a constructive trust on such property against the recipient: see Westdeutsche Bank v Islington LBC[27]. On the fact, as the said sum was transferred from the Plaintiff to PT Soeria under duress by the Defendants’ and their team, it is beyond argument that the said sum was received by PT Soeria, the 1st Defendant and the 2nd Defendant fraudulently and unconscionably. There is no argument that PT Soeria is a bona fide purchaser for value without notice of any fraud or unconscionable circumstances. Accordingly, PT Soeria and the Defendants hold the said sum and their traceable proceeds jointly and severally on constructive trust for the Plaintiff. (9) Whether the said sum was transferred by the 1st Defendant in breach of fiduciary duty owed to the Plaintiff 183.It is trite law that a person attracts fiduciary duties where he undertakes an obligation to act in the interest of another. One well-established category of such a relationship which can give rise to fiduciary duties is a solicitor-and-client relationship: see Libertarian Investments Ltd v Hall[28]. Even on his own case, the 1st Defendant acted as lawyer for Ariani in conducting the affairs of the Plaintiff. As Ariani is the sole director of the Plaintiff, when directing the 1st Defendant to perform works for the Plaintiff, she did so in the exercise of the corporate will of the Plaintiff. The 1st Defendant knew Ariani is the sole director and shareholder of the Plaintiff. He cannot argue that he was not acting for the Plaintiff. Having found that he did so as lawyer or fiduciary agent for the Plaintiff, it must necessarily follow that he was in a fiduciary relationship with the Plaintiff and owed fiduciary duty to the Plaintiff: see paragraphs 120 to 123. Such duties include[29]:
By procuring, causing and facilitating the illegal transfer of funds from the Plaintiff’s bank account, the 1st Defendant acted in clear breach of the above duties, as a lawyer or fiduciary agent, in (i) causing the transfer forms to be signed by Ariani on the Plaintiff’s behalf by use of threat of violence, (ii) failing to act in good faith in the Plaintiff’s interest, (iii) using his fiduciary position to benefit himself and (iv) misusing confidential information obtained by him from the Plaintiff in the course of his fiduciary relationship with the Plaintiff, such as its bank account particulars, to his own advantage: see Paragraph 120. (10) Knowing receipt and dishonest assistance 184.If property subject to a trust is transferred in breach of trust and the property or its traceable proceeds are received by the recipient for his own benefit with the knowledge of the same, he is liable for knowing receipt: see Zou Gebing v Hong Kong Xinxin information Ltd[30]. Likewise, if a person has dishonestly assisted in or procured a breach of trust or fiduciary obligation owed to the plaintiff resulting in loss to the plaintiff, he is liable to the plaintiff for the loss suffered: see Zou Gebing[31]. 185.On the facts, I find the Defendants received the said sum. They were the masterminds of the kidnapping incident and transfer. They must know it was transferred dishonestly and in breach of fiduciary duty or breach of trust on the part of the 1st Defendant. The 2nd Defendant dishonestly participated in and assisted the 1st Defendant’s breach of fiduciary duty or breach trust by providing a reason for the meeting in the 1st Defendant’s apartment so as to kidnap the Plaintiff’s sole director and thereby procured, caused or facilitated the illegal transfer. Further or in the alternative, both Defendants dishonestly participated in or assisted in the further transfer of the said sum received by PT Soeria knowing that it belonged beneficially to the Plaintiff and was subject to a constructive trust. (11) Unlawful means conspiracy 186.A conspiracy to injure another by unlawful means is actionable if the plaintiff proves that it has suffered loss or damage as a result of unlawful action taken pursuant to a combination or agreement between the defendant and another to injure him by unlawful means: see Kuwait Oil Tanker SAK v AL Bader[32]. To prove unlawful means conspiracy, a plaintiff has to prove (i) an agreement or understanding between the defendant and another to injure the plaintiff; (ii) a common intention to injure the plaintiff; (iii) the unlawful acts have been carried out in furtherance of that agreement or understanding and (iv) such unlawful acts have caused loss or damage to the plaintiff: Pido v Compass Technology Company Ltd[33]. The tort covers not only criminal wrongs, but also civil wrongs, including breaches of fiduciary duties and equitable wrong: Clerk and Lindsell or Torts[34]. 187.On the Court’s finding, the meeting at the 1st Defendant’s apartment, the kidnapping and transfer of funds were the joint enterprise of the 1st and 2nd Defendants, David, Suryadi and PT Soeria. Their agreement and common intention under the joint enterprise to transfer money out of the Plaintiff’s bank account was of course to injure the Plaintiff and cause it loss. They acted in combination and in furtherance of that agreement which resulted in the illegal transfer of funds from the Plaintiff to PT Soeria. The transfer was plainly unlawful. Their intention to injure was manifest. Obviously, both Defendants have knowledge of the 1st Defendant’s breach of fiduciary duties, their knowing receipt or dishonest assistance, and the criminal wrongdoing. (12) Unjust enrichment 188.It is trite law that a plaintiff may recover its loss against the defendant if it had transferred money under an unjust factor to the defendant and as a result the defendant was enriched at the expense of the plaintiff: see Toyota Boshoku Europe NV v Hong Kong Longshenyuan International Trade Ltd[35]. In view of my findings in respect of the various causes of action in the previous subsections, the Plaintiff must be entitled to claim under this cause of action. The Defendants, by irresistible inference, had been enriched and clearly at the Plaintiff’s expense by the illegal transfer of funds from its bank account. The unjust factor is duress applied to its sole director, Ariani, during the kidnapping incident, which forced her to sign the transfer forms under threat of violence at gunpoint. It is well established that actual or threatened violence to a person would constitute duress and that duress is a recognized unjust factor in the law of restitution: see Goff & Jones, The Law of Unjust Enrichment[36]. (13) Relief 189.The above issues are all resolved in favour of the Plaintiff. Accordingly, the Plaintiff is entitled to all the reliefs claimed. While the 1st Defendant contested liability, the type of relief open to the Plaintiff was not contested. (14) Limitation 190.Limitation was raised as an agreed issue, but it does not seem to have been contested. The limitation period for all five causes of action is six years under the relevant provisions of the Limitation Ordinance. The writ of action was issued on 5 October 2018, within six years of the date of the illegal transfer which took place on 10 October 2012. The Plaintiff’s claims are not time-barred. CONCLUSION 191.In view of the finding under the list of agreed issues, the further finding that both the 1st and 2nd Defendants are jointly and severally liable to the Plaintiff’s claim is inevitable. Accordingly, I enter judgment in favour of the Plaintiff against the 1st and 2nd Defendants and make the following orders:
192.Lastly, I thank counsel for their well-researched legal arguments, comprehensive analysis of the evidence and very stimulating submissions. The case has been very well argued. I also thank the Plaintiff’s legal team for their very well organized hearing bundles.
Ms. Queenie Lau, S.C. and Mr. Eugene Kwan instructed by Dentons Hong Kong LLP, for the Plaintiff Mr. Anthony James Sherry instructed by Bowers, for the 1st Defendant The 2nd Defendant was not represented and did not appear [1] (Unrep), HCA 1576/2011, 25 February 2014, at para 1. [2] (Supra) [3] [2020] HKCFI 2433 at paras 4 and 10 [4] [2021] HKCFI 591 at para 30(1). [5] (Unrep), HCCT 29/2013, 22 March 2016 at paras 2 and 49. [6] (Unrep, HCA 1115/2010, 8 May 2013 at para 32 [7] (Supra) at para 36 and 47 [8] (Supra) at para 9 [9] Bundle D8, Tab 185 [10] Bundle D3, Tab 160 [11] Bundle D8, Tab 188 [12] Bundle D7, Tab 174 [13] Bundle D7, Tab 175 [14] Bundle D8, Tab 179 [15] Bundle D4, Tab 170 [16] Bundle D6, Tab 172 [17] Bundle D4, Tab 168 [18] Bundle D4, Tab 170 [19] Bundle D4, Tab 170, at 981 [20] Bundle D8, Tab 178, at 1786 [21] Bundle D8, Tab 185 [22] Bundle D4, Tab 169 at 815 [23] Bundle D7, Tab 174 [24] Bundle D7, Tab 175 [25] Bundle D8, Tab 179 [26] Bundle 4, Tab 169, at page 888 [27] [1996] AC 669 (HL) at 715B-C and 716C-D; Guaranty Bank & Trust Co v ZZZIK Inc Ltd & Ors (unrep, HCA 1139/2016, 18 July 2016 [28] [2013] 16 HKCFAR 681 at Para 53 [29] Jackson & Powell on Professional Liability (9th Ed) at paras 11-014 to 11-025 [30] [2025] HKCFI 380 at para 18 [31] Supra, at para 24 [32] [2000] 2 All ER 271 (Comm) at para 108 [33] [2010] 2 HKLRD 537 at paras 14 to 17 [34] (24th Ed) at paras 23-112, 23-12 [35] [2022] HKCFI 1328 at Para 22(2) [36] (10th Ed) at paras 10-01 and 10-14 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCA 2337/2018