Bga Holdings Ltd (in Liquidation) (Formerly Known As Beibu Gulf Ocean Shipping (Group) Ltd and Others v. Chu Kong and Others

HCA 631/2022

[2026] HKCFI 2031

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 631 OF 2022

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BETWEEN

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DECISION

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1.Introduction

1.1By a decision dated 25 April 2025 (“Decision”)[1], I dismissed the Plaintiffs’ application for a worldwide Mareva injunction against D1. This is my decision on the following applications:

(1) The Plaintiffs’ summons dated 9 May 2025 (“Leave to Appeal Summons”) for leave to appeal against the Decision on the grounds set out in the draft Draft Notice of Appeal annexed thereto (“NOA”);

(2) The Plaintiffs’ summons dated 4 August 2025 (“Leave Summons”) for leave to rely on (1) their Draft Amended Notice of Appeal (“ANOA”) and (2) their draft summons to the Court of Appeal to adduce new evidence at the hearing of the proposed appeal;

(3) The Plaintiffs’ summons dated 18 August 2025 (“Amendment Summons”) for leave to amend the NOA to take into account the costs order made on 4 August 2025 in respect of the Application.

1.2The Amendment Summons is not controversial. I make an order in terms of §1 thereof and a costs order nisi that the costs of the Amendment summons be in the cause of the Leave to Appeal Summons.

1.3In respect of the Leave Summons, the new evidence sought to be introduced at the intended appeal is the 2^nd Affidavit of Mr John Nicholas Greenwood (“Greenwood (CA) 2^nd”). The ANOA contains an additional paragraph 2(cc) premised on the new evidence. There is no dispute between counsel that an application for leave to adduce new evidence cannot be entertained until after leave to appeal has been granted and it is a matter for the Court of Appeal to decide whether the new evidence should be admitted. However, an applicant for leave to appeal can support his application by reference to the proposed new evidence if he can demonstrate that it is reasonably arguable that the Court of Appeal would grant leave by reference to the criteria in Ladd v Marshall: Man Lin Heung v 梁根林 [2019] HKCA 846 at §2 (Footnote 1). It has taken some time for the parties to complete their evidence in respect of the Leave Summons. The 1^st Defendant filed his affirmation in opposition (“Chu 2^nd”) on 10 November 2025 and the Plaintiffs their affidavit in reply on 1 December 2025.

1.4The proposed grounds of appeal set out in the ANOA make the following complaints:

(1) I had erred in concluding that the Plaintiffs had failed to demonstrate a good arguable case on quantum in respect of the Ausca Transaction (“Ground 1”);

(2) I had erred in concluding that there was no unjustified risk of dissipation by D1 (“Ground 2”);

(3) I had erred in concluding that the balance of convenience was against the grant of the Application (“Ground 3”).

1.5The new evidence sought to be introduced is principally related to Ground 2. I shall deal with the Leave Summons when I address Ground 2.

2.The applicable principles

2.1There is no real quarrel between counsel on the applicable principles.

2.2To obtain leave to appeal under section 14AA(4)(a) of the High Court Ordinance Cap 4, the prospects of the appeal succeeding must be “reasonable” and thus more than “fanciful”. An applicant does not have to demonstrate that the appeal will probably succeed and the threshold has been described as “not high”: T v W [2021] HKCFI 160 §§4 and 9.

2.3Counsel for D1 has reminded me of the following principles:

(1) The Court of Appeal will not disturb the court’s exercise of discretion unless one or more of these grounds are established: the judge had misdirected himself with regard to the principles or the evidence in accordance with which his discretion had to be exercised; he had taken into account irrelevant matters; he failed to take into account relevant ones; his exercise of discretion is so plainly wrong that it is outside the generous ambit within which reasonable disagreement is possible: SFC v Leung Anita Fung Yee Maria [2025] HKCA 444 §39;

(2) Further, the Court of Appeal is not the forum for the parties to make a second attempt when they fail in the first instance, just hoping that the Court of Appeal will form different views on the weight to be attached to a particular factor: Cheng Siu Fai v Swenson Global Opportunities Fund SPC [2021] HKCA 1005 §34.

3.Ground 1

3.1Ground 1 is directed at Section 7 of the Decision, at which I set out my reasons for concluding that the Plaintiffs had failed to demonstrate a good arguable case on quantum in respect of the Ausca Transaction. The following matters of note:

(1) At Decision §6.3 (at which I dealt with the applicable principles), I referred to the cases cited therein for the propositions that whether an applicant has a good arguable case as to quantum is to be determined qualitatively, and as part of the qualitative assessment, the court may take into account factors such as the time that the applicant has had to formulate its claim;

(2) As referred to at Decision §7.3, D1’s submissions before me were premised, not on a contest between the rival expert evidence, but on the contention that the Plaintiffs’ evidence, namely the FTI Report, was compiled on an indisputably incorrect (or blinkered) premise. D1’s arguments emphasized that the burden was on the Plaintiffs to demonstrate a good arguable claim to a particular figure which might be made the ceiling figure of any Mareva injunction granted, and it was not for the court to arbitrability pluck some figure from the air, in the particular circumstances where the Plaintiffs have had a long time to prepare for and prosecute the Application. The foregoing emphasis was in part based on Universal Entertainment Corporation v Kazuo Okada [2020] HKCFI 1406 §§68-79 and [2020] HKCA §§23-25 referred to at Decision §6.3. As set out at Decision §5.5, D1’s submission was that the FTI Report ignored the “Fundamental Change”, namely the effect of the withdrawal of Guangxi BBG (in early 2016) and the setting up of a competitor, namely BG Shipping (in September 2015)[2];

(3) At Decision §7.5, I pointed out that Ms Tam was instructed to carry out the valuation of BBG Shipping and BBG Resources as at 31 December 2015 (ie Valuation Date), which preceded the Ausca Transaction which took place in May 2016;

(4) At Decision §7.8, I noted that the methodology adopted by Ms Tam for the valuation for BBG Shipping was the income capitalization method, and in doing so, she made a fundamental assessment that BBG Shipping’s historical level of income was representative of future income. However, at Decision §7.6, I pointed out that Ms Tam was only provided with only limited information and she was specifically not provided with any forward-looking information nor was she given access to the management of BBG Shipping.

3.2The matters stated in the preceding paragraph “set the scene” for my analysis on the reliability of the FTI Report, which I carried out at Decision §§7.10-7.21. In concluding that the FTI Report was not reliable, I took into account the following factors.

3.3First, the Fundamental Change took place after the Valuation Date and the Plaintiffs’ leading counsel accepted the Fundamental Change would have an effect on the profitability of the Group (Decision §7.11). The concession by the Plaintiffs was clearly correct since (1) the adverse effect was acknowledged in the FTI Report as regards BBG Resources such that the valuation of BBG Resources was done on a cost approach since there were uncertainties about BBG Resources’ ability to operate as a going concern (Decision §§7.12 and 7.13) and (2) the other evidence adduced by the Plaintiffs, namely the Infospectrum Report, also acknowledged that the Fundamental Change also impacted BBG Shipping, in that cargo flow was diverted away from BBG Shipping following the setting up of BG Shipping (Decision §§7.14).

3.4Secondly, whilst the FTI Report mentioned the BBG Shipping S&P, it did not address at all Appendix B thereto which was the Management Accounts (ie BBG Shipping’s management accounts for the 3-month period ended 31 March 2016). The Management Accounts showed a drastic reduction in BBG Shipping’s turnover in that period compared to the 2015 figures. Relatedly, I also noted that Ms Tam was specifically not provided access to the management and I formed the view that there was no justification for not seeking Mr Lau’s views on the Management Accounts (even if cooperation from D1 was not forthcoming) since Mr Lau was not removed as a director until 10 March 2016 (Decision §7.16).

3.5Thirdly, whilst the Plaintiffs in their reply evidence sought to factually minimize the effect of the Fundamental Change by reference to the work papers of Moore Stephens, it was unclear to me why Ms Tam was not asked to provide a supplemental report on what effect was to be given to the work papers of Moore Stephens (Decision §7.17).

3.6Fourthly, insofar as the Plaintiffs further sought to minimize the impact of the Fundamental Change by suggesting D1 and Mr Lau had historically contributed related-party business to the Group, I pointed out that the Plaintiffs were unable to show that Mr Lau had done so after 31 December 2013 which was consistent with his professed stance as recorded in many decisions that there was a corporate divorce effective 1 January 2014[3] (Decision §7.18).

3.7Fifthly, at Decision §§7.19-7.20, I dealt with the Plaintiffs’ reliance on the success of ASL and pointed out that, on the Plaintiffs’ own evidence, the success of ASL was based in part on new business ventures not previously undertaken by BBG Shipping. I further observed that the value of BBG Shipping was in the business relationships and contacts, which as a result of the corporate divorce, Mr Lau and D1 were pursuing separately from 2014 onwards.

3.8I then dealt with at Decision §§7.22-7.23 the Plaintiffs’ submissions that I should adopt a broad-brush approach and discount the value of BBG Shipping. I specifically pointed out that the Plaintiffs did not proffer a figure which might be justified on the evidence.

(i) Ground 1(a)

3.9Ground 1(a) complains that I had erred in placing little or no weight on the FTI Report on the basis that it had not assessed the impact of the alleged Fundamental Change. It is said that the impact of the alleged Fundamental Change is a heavily disputed fact and it is not a matter for Ms Tam to opine on as a valuation expert.

3.10In my view, Ground 1(a) is not reasonably arguable for the following reasons.

3.11First, as pointed out by counsel for D1, the question is whether it can arguably be shown that my conclusion on the (lack of) reliability of the FTI Report was plainly wrong. In this regard, there is no appeal against my observation that the FTI Report was based on very limited information. The withdrawal of Guangxi BBG and the setting up of BG Shipping as a competitor are undisputed facts. The FTI Report simply did not take the foregoing into account in proceeding on the basis that BBG Shipping’s historical level of income was representative of future income. In this regard, as pointed out above, the FTI Report, in fact took into account what was the effect of the Fundamental Change in its valuation of BBG Resources, namely with the withdrawal of Guangxi BBG, the relationship with Fangchenggang was terminated.

3.12Secondly, even accepting the Plaintiffs’ submission that the impact of the Fundamental Change is a factual dispute (as opposed of the existence of the Fundamental Change which is indisputable), a fair presentation of the valuation evidence is for Ms Tam to put forward primary and alternative valuations based on different assumptions. There is simply no justification for the Plaintiffs to present valuation evidence based on its best-case scenario. At the very least, as pointed out by counsel for D1, the FTI Report ought to have analyzed the effect of the undeniable withdrawal of Guangxi BBG and the setting up a BG Shipping as a competitor. This is particularly pertinent given the Plaintiffs’ concession that the Fundamental Change would have an impact on the valuation. Had that been done, the Plaintiffs would have some evidential basis to invite the court the discount the Mareva monetary limit from its primary valuation. As pointed out above, at the hearing, the Plaintiffs were unable to proffer a discounted figure which might be justified on the evidence.

3.13Thirdly, and relatedly, I do not accept the Plaintiffs’ submissions that the Valuation Date (months before the Ausca Transaction) can be justified on the basis that, in BGAH JLs’ view, the valuation date of 23 May 2016 was not adopted as there was no credible financial information of BBG Shipping, and instead, the Valuation Date was adopted given that the availability of audited financial statements. Even were the foregoing view held by BGAH JLs, that was not a reason for withholding the Management Accounts from Ms Tam. The drastic decrease in revenue shown in the Management Accounts self-evidently has a direct impact on Ms Tam’s adoption of the income capitalization method. It is a matter for Ms Tam to put forward an alternative valuation.

(ii) Ground 1(b)

3.14Ground 1(b) asserts that in determining the impact of the alleged Fundamental Change on the business of BBG Shipping, I had erred in failing to give any or sufficient weight to (1) the Moore Stephen’s working papers which showed that BBG Shipping’s business was not wholly dependent on Guangxi BBG (“Factor 1”), (2) the fact that considerable income of BBG Shipping was generated from companies controlled by D1 and Mr Lau, as well as other customers which have no known relationship with BBGH (“Factor 2”) and (3) the fact that ASL, as a continuation of BBG Shipping’s business, was a very successful business venture (“Factor 3”).

3.15Before I deal with the Factors individually, I should state at the outset that, as an overarching observation, I agree with counsel for D1 that the Factors do not establish that the Fundamental Change had no substantial impact on BBG Shipping’s valuation. If it is suggested by the Plaintiffs that I had agreed with the GT Report (which adopted a cost approach on the bases of assumptions made largely premised on D1’s factual case), that is a misunderstanding of my decision: Decision §7.21.

3.16In relation to Factor 1, as noted above, the Moore Stephen’s work papers were apparently provided to Ms Tam: Decision §7.7. Whilst the Plaintiffs’ reply evidence relied on the Moore Stephen’s work papers as part of the factual case, Ms Tam was not asked to provide an alternative valuation based on what BGAH JLs assert could be shown by the Moore Stephen’s work papers. As already set out at Decision §7.17, the factual case which the Plaintiffs contended could be gleaned from Moore Stephen’s work papers was that they purportedly showed that the key customers which significantly contributed to BBG Shipping’s earnings were unrelated to Guangxi BBG. For present purpose, the Plaintiffs repeat the observation that approximately 44% of BBG Shipping’s revenue did not depend on Guangxi BBG. In my view, the foregoing precisely highlights my observation that, for a fairer presentation of the valuation evidence, the Plaintiffs ought to have provided an alternative valuation because of the clear impact that the foregoing will have on Ms Tam’s assessment that the historical level of income was representative of future income. On the Plaintiffs’ argument, only 44% of the revenue did not depend on Guangxi BBG. How the uncertainty over the remaining 56% of the revenue should be factored into the income capitalization method and what is the resulting valuation is simply not dealt with in the Plaintiffs’ valuation evidence. To be clear, at the hearing, the Plaintiffs did not suggest that the valuation set out in the FTI Report should be discounted based on the information said to be contained in the Moore Stephen’s work papers (or what that discount should be).

3.17In relation to Factor 2, the assertion that both Mr Lau and D1 contributed to the income of BBG Shipping is not supported by the evidence: §3.6 and Footnote 3 above.

3.18In relation to Factor 3, the points made at Decision §7.20 are (1) the success of ASL, on the Plaintiffs’ own evidence was based in part on new business ventures not previously undertaken by BBG Shipping, (2) BBG Shipping only had negligible fixed assets comprising computer equipment, furniture, etc (3) the “value” of BBG Shipping was plainly in the business relationships and contacts, which as a result of the corporate divorce, Mr Lau and D1 were pursuing separately from 2014 onwards and (4) importantly, the success of ASL could not be extrapolated as an indication that BBG Shipping was able to continue the business model before the Fundamental Change to justify the assumptions made in the FTI Report. Whatever the weight the Plaintiffs seek to place on the success of ASL, it does not alter the fact that, as stated above, the Plaintiffs had conceded that the Fundamental Change did have an impact on the BBG Shipping’s profitability.

3.19In my view, Ground 1(b) is not reasonably arguable.

(iii) Grounds 1(c) and (d)

3.20Grounds 1(c) and (d) complain that I should have adopted a broad-brush approach in determining the appropriate figure which the Plaintiffs merit protection by a Mareva injunction. The Plaintiffs rely on the two cases referred to at Decision §7.22. In addition, the Plaintiffs further rely on Yam Seng Pte Ltd v International Trade Corporation Ltd [2013] 1 All ER (Comm) 1321 §188 and One Step (Support) Ltd v Morris-Garner [2019] AC 649 §38 for the propositions that (1) the court will do its best and will not allow difficulty of estimation to deprive the plaintiff of a remedy, particularly where that difficulty is itself the result of the defendants wrongdoing and (2) the court is aided by the principle of reasonable assumption which err on the side of generosity to the plaintiff where it is the defendant’s wronging which has created uncertainties.

3.21I agree with counsel for D1 that any professed difficulties or uncertainties in the present case are entirely self-induced on the part of the Plaintiffs in failing to provide reliable valuable evidence (1) by limiting the information which was provided by Ms Tam and (2) in failing to adduce a supplemental report. This may be illustrated by the first of the two alternatives which the Plaintiffs now say are proper discounts.

3.22Two alternatives are now put forward by the Plaintiffs (neither of which at the hearing).

(1) It is now said that a reasonable percentage is 50% which reflects the fact that Guangxi BBG had exited the original joint venture, which figure is also consistent with the fact that at least 44% of the revenue of BBG Shipping originated from customers unrelated to Guangxi BBG;

(2) Alternatively, by Ground 1(d) it is said that I should impose a monetary limit of US$24,080,871.66 by reference to the declared dividends which had not been properly accounted for: Decision §4.7(4).

3.23The first alternative is logically flawed. It bears emphasis that the methodology adopted in the FTI Report was the income capitalization method and the fundamental assumption was the historical level of income was representative of future income. As explained at FTI Report §4.7:

“In certain circumstances, cash flows covering an explicit forecast period is not necessary and a terminal value forms the only basis for value. This method, called the income capitalisation method, is a variation of the DCF [discounted cash flow analysis] that is often applied in mature businesses where the business is operating at a stabilised level of growth and profits at the valuation date. Under this method, the economic benefits for a representative single period are converted to value through division by a capitalisation rate…” (emphasis added)

3.24As set out in at FTI Report §§3.15, the EBITA of BBG Shipping historically ranged between 0.9% and 2.2% of the revenue. The first alternative proposed by the Plaintiffs assumes that BBG Shipping would remain profitable with only 44% of its historical revenue. Given the thin margin of BBG Shipping, I am unable to accept that the first alternative is based on any reasonable premise. The lack of logic of the first alternative proposed highlights the observation made above, namely any professed difficulty or uncertainty is entirely self-induced on the Plaintiffs’ part.

3.25The second alternative places no reliance on the FTI Report and is an entirely new point. As pointed out by D1, there are a number of difficulties with this new submission. First, it does not concern whether BBG Shipping was sold at an undervalue. If P1 did not receive the dividends, its claim would be for the dividends and such claim was and is not made in the latest version of the Statement of Claim. Secondly, on the Plaintiffs’ own evidence BGAH JLs were still in the process of investigating into the validity of the declaration of dividends (Greenwood (HC) 2^nd §38.9). I agree with D1 that there is therefore no factual or evidential basis for this alternative claim.

3.26Further, as pointed out by D1, in the Court’s qualitative assessment on the case on quantum, the court may take into account factor such as the time that the applicant has had to formulate its claim: Decision §6.3(2). I am not persuaded that in the light of the Plaintiffs’ deficient evidence, it is reasonably arguable that I should adopt the logically-flawed first alternative or the unpleaded second alternative.

4.Ground 2

4.1Ground 2 is directed at my assessment on the risk of dissipation which is set out at Decision §§9.1-9.8. Essentially (1) I pointed out that the only asset identified by the Plaintiffs was D1’s interest in Swatow, (2) the Plaintiffs’ case on risk of dissipation was only premised on an inference to be drawn from the nature of the complaints made against D1, (3) but in the context of the acrimonious corporate divorce between Mr Lau and D1, it was inappropriate to shortcut the assessment on risk of dissipation by simply looking any accusation of low commercial reality or to readily infer a risk of dissipation solely from the nature of the pleaded allegations (Decision §§9.6 and 5.3), (4) instead, I should focus more on whether there was solid evidence to show risk of dissipation (Decision §§9.6) and (5) the Plaintiffs did not adduced any solid evidence on risk of dissipation.

4.2The following matters bear emphasis. First, as set out at Decision §1.4, although these proceedings were pursued by BGAH JLs, the real protagonists were Mr Lau and D1. At Decision §§9.4 and 9.5, I noted that it is the Plaintiffs’ own evidence that in the context of the acrimonious corporate divorce, it was acknowledged that there were cross-allegations of misappropriation made by the two protagonists against the other and each of the protagonist took unilateral actions to protect his interest. It was in the foregoing context that I formed the view that I should be less ready to infer a risk of dissipation solely from the nature of the pleaded allegations.

(i) Grounds 2(a)

4.3Ground 2(a) contends that (1) I was wrong in law in failing to consider the Plaintiff’s evidence on the substantive claim against D1 in assessing the risk of dissipation and (2) I was wrongly affected by my conclusion that there was no good arguable case on quantum in respect of the Ausca Transaction.

4.4The first limb of Ground 2(a) is not reasonably arguable. I had set out at section 4 of the Decision the details on the Ausca Transaction and the Lohas Transaction, noting that they involved allegations of misappropriation of assets, use of nominees, various breaches of fiduciary duties and transactions at under value. Despite the arguments made to the contrary by D1 (set out at sections 5, 7 and 8 of the Decision), I formed the view that there was a good arguable case on liability and quantum on the Lohas Transaction and a good arguable case on liability on the Ausca Transaction. I also did not overlook the principle that a risk of dissipation can be premised on an inference to be drawn from the nature of the complaints made against D1: Decision §9.2

4.5The second limb of Ground 2(a) is also not reasonably arguable. The Plaintiffs have not identified how I allowed my conclusion that there was no good arguable case on quantum in respect of the Ausca Transaction affect my assessment of risk of dissipation. There is no reference to any specific paragraph of the Decision in either the ANOA itself or in counsel’s submissions.

(ii) Grounds 2(b) and (c)

4.6Ground 2(b) contends that the nature of the claims made against D1, involving concealment and serious misappropriation of P1’s assets, provides a solid basis for inferring a real risk of dissipation by D1 to avoid the consequences of a judgment against him. Ground 2(c) contends that the fact that these actions were undertaken in the context of an acrimonious corporate divorce in fact aggravate the risk and such background cannot justify any heightened standard of proof or heightened circumspection of P1’s pleading or evidence.

4.7In the Plaintiffs’ written submissions, the risk aggravation is said to be demonstrated by D1’s willingness to contest every application, including those summarized at Decision §§3.4, 3.5 and 9.8.

4.8I am not persuaded that Grounds 2(b) and (c) are reasonably arguable. As set out at Convoy Collateral Ltd v Cho Kwai Chee [2020] 6 HKC 81 §53, the question whether the Plaintiffs succeed in showing objectively that there is a solid basis for concluding that there is a real risk of dissipation is to be answered by examining the evidence holistically:

(1) As submitted by D1, the complaints made against D1 are not conduct akin to a straightforward theft of company assets;

(2) As pointed out above, the Plaintiffs’ own evidence acknowledged that Mr Lau and D1 had each made cross-allegations of misappropriation of assets against each other in the acrimonious corporate divorce;

(3) Against the above, the evidence at the substantive hearing was that, in respect of the only assets identified by the Plaintiffs (ie D1’s interest in Swatow) there was no allegation of dissipation.

4.9As pointed out by D1, the above analysis did not, as a matter of principle, adopt a heightened standard of proof or circumspection. Instead, the above analysis involved a purely factual and evaluative assessment namely, that the acrimonious corporate divorce provides context for D1’s conduct, and subject to the new evidence, there was no other evidence showing dissipation on D1’s part.

(iii) Ground 2(cc)

4.10Ground 2(cc), which is premised on the new evidence, contends that, in light of matters discovered by the Plaintiffs after the Decision and not available at the time of the Decision, D1’s interest in Swatow should not have been taken into account in assessing the risk of dissipation or supposed lack thereof (Decision §§9.1 and 9.7). The Plaintiffs contend that, contrary to the submissions of Dl advanced to the court, Swatow’s latest corporate records (which was filed 2 days after the issuance of the Notice of Handing Down of the Decision and 1 day before the handing down of the Decision) show that Swatow is not D1’s company: Dl does not hold more than 25% of the issued shares of Swatow and has no de facto control over Swatow.

4.11At Decision §9.1, I observed as follows:

“The only asset identified by the Plaintiffs in the Application is a property development known as “Swatow Plaza” or “S+ Plaza” in Montreal, Canada held by Swatow Development Inc (“Swatow”). It has not been suggested that D1 has done anything untoward to put his interest in Swatow beyond the reach of the Plaintiffs.”

4.12At Decision §9.7, I observed as follows:

“… As stated earlier, there is no allegation of dissipation of D1’s interest in Swatow.”

4.13The new evidence relates to corporate information of Swatow newly discovered by BGAH JLs which shows that D1 no longer holds any substantial interest in Swatow (and that was the case before the Decision). Greenwood (CA) 2^nd sets out the following matters:

(1) Based on the Statement of Information on a Legal Entity in the Register of Companies (“SOI”) for Swatow obtained by BGAH JLs on 24 April 2025 (1 day before the Decision), it was recorded that D1 was the President of Swatow;

(2) Subsequently, on 28 April 2025 (ie 1 working day after the Decision), BGAH JLs discovered that a new SOI has since been published in respect of Swatow (“Swatow’s 28.4.2025 Statement”). The updated information was based on a Current Update Declaration for a Legal Entity filed by Swatow on 24 April 2025;

(3) Swatow’s 28.4.2025 Statement records, inter alia, D1 has ceased to be the President of Swatow since 8 June 2024 and one Hui Ying Wen is the only person identified as an ultimate beneficiary of Swatow from 1 January 2023 onwards;

(4) Under Canadian laws, an ultimate beneficiary refers to any person who controls and holds 25% of the shareholding or voting rights of the company, or who has control in fact;

(5) The Plaintiffs have requested D1 to clarify the nature and extent of his interest in Swatow. Notwithstanding the multiple opportunities afforded to D1, he has failed to provide a straightforward answer and has refused to explain his interest in Swatow with documentary evidence. There is also no explanation as to why the corporate records were filed in April 2025 when they were concerned with changes to corporate information which took place in 2023 and June 2024.

4.14The 3 conditions in Ladd v Marshall for determining whether new evidence should be admitted for an appeal are: (1) the evidence could not have been obtained with reasonable diligence for use at the hearing below; (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (3) the evidence must be such as is presumably to be believed or it must be apparently credible, though it need not be incontrovertible. All three conditions must be satisfied for new evidence to be admitted on appeal.

4.15There is no dispute between counsel that Conditions 1 and 3 are satisfied. The debate between counsel is on Condition 2.

4.16As pointed out by the Plaintiffs, the submissions made by D1 at the substantive hearing were as follows:

“… At least since 2019, [D1] has made known to the public his interest in Swatow. As Greenwood 2^nd states at §109 [D1] confirmed in his affirmation in HCA 2239/2019 that Swatow was ''his companv”

… The serious allegations of asset-stripping have been made against [D1] since 2019 in the P1 WU Petition.

Had [D1] been a person inclined to dissipate his assets, he would have ringfenced from enforcement (or otherwise concealed) his interest in Swatow. He would also have put such interest (or its traceable proceeds) beyond the JIs' reach especially after the P1 WU Petition has been presented. That he did not do so is extremely telling. The JLs have no evidence of any suspected acts of dissipation of assets regarding Swatow since 2019. It clearly negates any inference of risk of dissipation.”

4.17The above submission was made in response to the Plaintiffs’ submissions that BGAH JLs have been able to identify evidence to suggest that D1 retained a significant interest in Swatow, a large commercial venture in Canada and therefore this was not a case where “the horse has bolted” despite the lapse of time.

4.18I have considered D1’s evidence filed in opposition to the Leave Summons. In summary, he points out that it was always known to BGAH JLs that he was not the sole shareholder of Swatow and the reference to Swatow being “his company” in his affirmation in HCA 2239/2019 should not be understood as such. He further points out that the new evidence does not show that he has dissipated his interest in Swatow.

4.19Counsel for D1 added that had there been any evidence that D1 was Swatow’s ultimate beneficiary (as defined under Canadian law) immediately before D1 knew that that he was being pursued by the Plaintiffs, then the new evidence might possibly show dissipation. But there is no such evidence.

4.20The new evidence, in my view, satisfies Ladd v Marshall condition 2, for the following reasons:

(1) As is plain from the Plaintiffs' evidence (Greenwood (HC) 2nd §26.4.1), D1 was one of the 4 founding members of Swatow and Swatow was one of the corporate vehicles through which D1 held his interests in "Swatow Plaza" or "S+ Plaza";

(2) However, the mere fact that D1 was not the sole shareholder does not dilute the effect of the submission made by D1’s counsel at the substantive hearing, namely that Swatow was “his company” connoting D1 holding a substantial interest in Swatow. In my view, the foregoing is plainly at odds with the fact that one Hui Ying Wen is the only person identified as an ultimate beneficiary of Swatow from 1 January 2023 onwards;

(3) Moreover, the new evidence shows that D1 ceased to be the president of Swatow since 8 June 2024;

(4) As pointed out by the Plaintiffs, D1 has not provided any credible explanation as to why he failed to adduce evidence to clarify his interest in Swatow in 2019 to 2025;

(5) As such, the new evidence would probably have an important influence on the result of the intended appeal – specifically the assessment of whether there is a risk of dissipation by D1. The new evidence shows that D1 did not hold a substantial interest in Swatow since 1 January 2023. The two possibilities are: (a) D1 never held more than 25% shareholding, which scenario is contrary to the submissions made at the substantive hearing or (b) D1 did hold more than 25% shareholding which was subsequently reduced to under 25% by 1 January 2023 at the latest (at unspecified consideration). Either scenario would impact the court’s assessment that there was no real risk of dissipation arrived on the factual premise that there was no allegation that D1’s interest in Swatow had not been dissipated.

4.21It follows from the above that Ground 2(cc) is reasonably arguable.

(iv) Ground 2(d)

4.22Ground 2(d) is directed at Decision §9.7 where I took into consideration that there was no suggestion that businesses known to BGAH JLs to be related to D1 were operated surreptitiously. This ground makes the following complaint - the fact that there are still some valuable assets owned by D1 does not negate the risk of dissipation but rather it shows that the injunction sought will not be in vain.

4.23The Plaintiffs relies on Norwich Union Fire Insurance Society Limited v Eden (LTA/95/7318/E, 25 January 1996) for the proposition that the risk of dissipation heightened as the action gets near to trial.

4.24In my view, insofar as it is suggested that the existence of valuable assets does not negate the risk of dissipation is undoubtedly correct. Conversely, the existence of valuable assets does not in and of itself support risk of dissipation. Each case depends on its own facts. Norwich Union stands for the general proposition that a judge may infer from that fact that a good arguable case has been made out involving fraud in relation to a defendant of international background that there is a significant risk of dissipation. The point made at Decision §9.7 is that the manner in which the businesses were being operated – not surreptitiously – is a factor against risk of dissipation.

4.25In my view, Ground 2(d) is not reasonably arguable.

(v) Ground 2(e)

4.26This ground complains that I had erred in taking into account delay as a factor “militating against any professed concern of risk of dissipation of assets” (Decision §9.8). There is no basis, the Plaintiffs contend, to conclude that BGAH JLs had taken a view that there was no risk of dissipation. Further, such a conclusion would not be relevant or weighty as the Court should be concerned with whether, objectively, whether there is a risk of dissipation, rather than the subjective belief of the BGAH JLs at any given time.

4.27In my view, the Plaintiffs have unwarrantedly read Decision §9.8 as importing a subjective element on the part of BGAH JLs. The point made at Decision §9.8 is that unexplained delay may militate against the risk of dissipation: China Art Bank Co Ltd v Xu Zhiqiang [2018] HKCA 63 §§23-26 and Convoy §79.

4.28In my view, Ground 2(e) is not reasonably arguable.

5.Ground 3

5.1Ground 3 is directed at my assessment on the balance of convenience. It stands or falls together with Ground 2.

5.2As stated above, I have declined to grant leave in respect of Ground 1 and only acceded to grant leave in respect of Ground 2(cc). The effect of the foregoing is as follows:

(1) The Application, insofar as it is based on the Ausca Transaction, fails as the Plaintiffs’ failed to demonstrate a good arguable case on quantum;

(2) Therefore, Ground 2(cc) on the appeal against risk of dissipation is only relevant in respect of the Lohas Transaction;

(3) As pointed out at Decision 10.4, the Relevant Vessels (being the subject matter of the Lohas Transaction) have been preserved pending trial upon undertakings offered by D5 and D6.

5.3Whilst I have taken on board D1’s submission that Decision §10.4 should weigh heavily on the balancing exercise when it comes to the Lohas Transaction, I am unable to say that it is not reasonably arguable that should the Plaintiffs succeed in Ground 2(cc), the Court of Appeal would grant a Mareva injunction against D1 based on the Lohas Transaction. For this reason, I grant leave on Ground 3.

6.Conclusion

6.1For the above reasons, I accede to the Leave Summons and make a costs order nisi that the costs be in the cause of the intended appeal.

6.2In respect of the Leave to Appeal Summons, I granted leave on Grounds 2(cc) and 3 of the ANOA insofar as they relate to the Application premised on the Lohas Transaction. In view of the relative success, I also make a costs order nisi that 60% of the costs be paid by the Plaintiffs to D1 and the remainder in the cause of the intended appeal.

Mr Bernard Man, SC leading Mr Justin Ho and Mr Jonathan Ng, instructed by Messrs Norton Rose Fulbright Hong Kong, for the 1^st - 3^rd Plaintiffs

Mr Julian Lam, instructed by Messrs Iu, Lai & Li, for the 1^st Defendant