Malaysia Borneo Finance Corporation (M) Berhad v. San Imperial Corporation Ltd and Others

HCA005006/1979

-----------------

Coram: O'Connor, J. in Court.

Date of Judgment: 12th March, 1980

-----------------

JUDGMENT

-----------------

1. The background of this case appears from the judgments of Yang, J. in Miscellaneous Proceedings No. 540 of 1977 (unreported) and In re. San Imperial Corporation Limited⁽¹⁾, and the judgments of the Court of Appeal in Appeal No. 12 of 1978 (unreported) which is I understand under appeal to the Privy Council. My summary of the facts is largely taken from those judgments.

2. At all material times James Coe was the Chairman of the Siu King Cheung Hing Yip Company Limited (hereafter called SKC). Fifteen million shares in San Imperial Corporation Limited (hereafter referred to as San Imperial) were held by Choo Kim San a man who is a fugitive from justice, now apparently living in Taiwan after having fled Hong Kong in or about 28th October 1976 while facing substantial charges of fraud. James Coe let it be known that he was desirous of acquiring a controlling interest in San Imperial. On hearing of James Coe's intentions, three persons formed themselves into a syndicate with a view to acquiring such number of San Imperial shares as would give James Coe the controlling interest he was seeking. The syndicate had as its members David Ng a stock broker, Melville Ives a solicitor and Ho Chapman a businessman, all three of whom had at one time or other close business association with Choo Kim San. By a series of sham dealings the syndicate pretended that they had purchased the fifteen million shares from Choo Kim San, and, pretending that they were acting in their own behalf, entered into an agreement with James Coe whereby James Coe was given an option to purchase those shares subject to the lifting of certain restraints placed on them by the Court. Though the syndicate were not acting honestly and in good faith, James Coe was a bona fide purchaser for value. In addition to that transaction, a genuine sale and purchase agreement was entered into between the syndicate and James Coe whereby the latter acquired some eight million San Imperial shares which were duly registered in the name of James Coe's nominee company. It was by virtue of the eight million shares that James Coe obtained effective control and became managing director of San Imperial. David Ng was by that time Chairman of San Imperial. James Coe, unlike the syndicate, did not behave dishonestly in his acquisition of a controlling interest in San Imperial.

3. In the trial before Yang J. Malaysia Borneo Finance Corporation (My Berhad hereafter referred to as MBF) and two men Lee Eng Chee and Lee Kon Wah, all of whom were judgment creditors of Choo Kim San applied to have made absolute, Charging orders nisi and garnishee orders nisi in relation to the shares in San Imperial which they alleged to be beneficially owned by Choo Kim San. The judgment creditors sought execution against the shares or alternatively, if at the relevant date the shares did not belong to Choo Kim San, against the proceeds of the sale of them.

4. At the trial the main issues were whether Choo Kim San had in good faith disposed of the 23 million shares to the syndicate and, if he had not, had the shares been transferred to Mr. Coe or his companies in good faith and whether Mr. Coe and his companies were bona fide purchasers for value. At the trial the syndicate asserted that they were not involved in any conspiracy with Choo Kim San and James Coe asserted that he and his companies had not been involved in any conspiracy but had acquired the shares innocently and were bona fide purchasers for value. Yang J. found that there was a conspiracy between Choo Kim San and the syndicate, but that James Coe was a bona fide purchaser for value. This finding in relation to James Coe involved a finding that he was not involved in the conspiracy of Choo Kim San and the syndicate, by which Choo Kim San pretended to sell and the syndicate pretended to buy the shares. Indeed Yang J. appears to have found that James Coe was not aware of the sham agreements between Choo Kim San and the syndicate. The agreement by which James Coe acquired the shares was made the 12th May 1977 and replaced a somewhat similar agreement made on 30th April 1977. Yang J. found the agreements were bona fide and not shams. The appeal in respect of some of these matters was withdrawn and there is a dispute as to the circumstances in which it was withdrawn. I need not go into that matter, it suffices for me to say that the findings of Yang J. were not disturbed by the Court of Appeal, save that on a point of construction it reversed his finding that the beneficial interest in 15 million of the shares in San Imperial had not passed to a James Coe company. The price payable by James Coe for the shares under the agreement was $1.50 a share and amounts to much less than the amount now due by Choo Kim San to MBF, and indeed the shares are apparently now worth a lot more than the sum for which James Coe purchased them.

5. MBF is the plaintiff in the present action and James Coe is one of the defendants. It is suggested on behalf of James Coe that the present action is part of a battle being fought by MBF over the rights to the 15 million shares. Indeed Mr. Yorke, Q.C. for the plaintiff says that this action is in pursuance of the plaintiff's rights as judgment creditor of Choo Kim San in those shares and because the plaintiff has discovered that 'the man controlling San Imperial is looting it '.

6. In the present action MBF has obtained a charging order nisi in respect of the shares, subject to the rights of James Coe under the agreement of 12th May 1977, that being on the basis of the finding by Yang J. upheld by the Court of Appeal, that James Coe acted bona fide and for value in respect of the agreement. MBF have also obtained the appointment of a receiver over the rights of the vendors under that agreement, that being based on the Court of Appeal finding that Choo Kim San was effectively the vendor under the agreement.

7. In the present action MBF sues fifteen defendants. Included amongst them are San Imperial (1st Defendant), James Coe (2nd Defendant), David Ng (8th Defendant) and SKC (14th Defendant). The statement of claim consists of 66 paragraphs and occupies 30 pages. Paragraph 5 could be described as the most significant paragraph. It purports to summarise the Plaintiff's cause of action. It reads as follows:-

8. What I have before me are applications by various defendants to strike out the statement of claim under Order 18 Rule 19 and the inherent jurisdiction of the Court and that the action be stayed or dismissed on the grounds that it discloses no reasonable cause of action, is frivolous and vexatious, and is an abuse of the process of the Court. The matters that call for consideration can conveniently grouped under three headings, firstly, the form of the action, secondly, frivolous vexatious and an abuse of process because of findings in previous proceedings and contradictory averments, thirdly no reasonable cause of action disclosed as no sufficient allegations of fact pleaded in respect of various matters and defendants.

1. The Derivative Action

9. Paragraph 2 of the statement of claim is as follows:-

From that it is clear that the action is intended as a minority shareholders action or what might more appropriately be called a derivative action. The nature of such an action appears from Wallensteiner v. Moir (No. 2)⁽²⁾ and it is clear that it is in reality the action of the company brought by a minority shareholder.

10. The defendants take the point that the statement of claim does not make an allegation necessary to found such an action, as it is a necessary averment that the plaintiff could not, by reason of the defendants' opposition, obtain the name of the company to issue proceedings and reference was made to Birch v. Sullivan⁽³⁾ and Pavlides v. Jensen⁽⁴⁾.

11. The headnote to Pavlides v. Jensen ⁽⁴⁾ states that the company concerned was controlled by another company, the majority voting power of which was controlled by the same directors. However, the facts as set out in the judgment at page 577 disclose that the defendant directors were not the holders of shares that would give them voting power at a general meeting to settle the company's decision, but such shares were held by a shareholding company of which the defendant directors were majority directors but apparently they did not control sufficient shares in the shareholding company to be able to force a decision at a general meeting of the shareholding company, if such was held. In such circumstances the statement of claim in that case did not allege facts which showed that proceedings could not be instituted in the name of the company. It was in those circumstances that the learned judge, obiter and tentatively expressed the view that he was not satisfied that the defendant directors were in such control of the company as to justify a derivative action.

12. The decision in Birch v. Sullivan⁽³⁾ was on the ground that the statement of claim did not allege that the plaintiff could not obtain the name of the company to issue proceedings. In that case there were allegations in the statement of claim from which it might or might not have been a proper inference that permission could not have been obtained. There is nothing in the report of the case to indicate that the statement of claim actually asserted that permission could not be obtained. The following passage appears in the judgment at page 1250 in regard to the director who was a defendant : -

13. That passage in my opinion indicates that the facts mentioned in the sentence commencing 'It is said' were not set out in the statement of claim, because if they had been it appears they would have been sufficient allegation to found the action. It appears to me that those facts rather than being set out in the statement of claim, must have been something merely stated by counsel, or perhaps appearing in an affidavit, that could not be considered when deciding whether the statement of claim disclosed a cause of action.

14. I find that the plaintiff MBF had not made a sufficient assertion in its statement of claim to justify the bringing of a derivative action. However, an application was made and granted for leave to amend the statement of claim. The amendment sufficiently makes the required averments.

15. On behalf of the defendants it is contended that the plaintiff brings this action mala fide, not for the benefit of San Imperial or its shareholders, but in an attempt to pursue its claims against Choo Kim San. Reliance is placed on Forrest v. The Manchester. Sheffield and Lincolnshire Railway Company⁽⁵⁾ where it was held that it was an imposition on the Court for a shareholder to commence an action purportedly on behalf of himself and other shareholders, when he was also a shareholder in a rival company and had in fact commenced the action by direction of the rival company, which had indemnified him against costs. The plaintiff was not in fact suing as the agent or representative of the company or its shareholders but as the agent and representative of the rival company. However in the course of that decision it was said at page 130 that a minority shareholder action -

and at page 131 it was said -

see also Seaton v. Grant ⁽⁶⁾ .

16. I consider that this action is for the benefit of the company and its shareholders. The motives of MBF are not altruistic, but then the motives of plaintiffs seldom are, nor are they required to be. I find against the defendants on this issue.

2. Frivolous, vexatious and abuse of process

17. The attacks on the statement of claim are to a large extent directed at paragraph 5 which reads as follows : -

That paragraph claims to express the gist of the action and indeed we have been told on behalf of the plaintiff that it does so. There are two main aspects to the attack on it. Firstly it is said that looking at it by itself and in the light of the other proceedings, it is alleging that the 2nd defendant James Coe was a conspirator in a conspiracy, in respect of which there are judicial findings that he was not a conspirator, and that to make such allegations is an abuse of process. Secondly, it is said that reading paragraph 5 together with the rest of the statement of claim there are such contraditions, omissions and ambiguities that to permit the statement of claim to stand would be an abuse of process.

(a) Abuse of process by virtue of previous findings

18. In Miscellaneous Proceedings No. 540 of 1977 Yang J. found that Jame Coe entered into the agreements of 30th April 1977 and 12th May 1977 bona fide and for value and unaware of sham agreements entered into between Choo Kim San and the syndicate. That finding was upheld by the Court of Appeal. Yang J. confirmed his finding in the case of In re. San Imperial Corporation Ltd. ⁽¹⁾

19. It is conceded on behalf of the plaintiff in the present action that those findings of Yang J. must be accepted in the present action and that the plaintiff is not entitled to make an allegation contrary to those findings. For the plaintiff it is said that paragraph 5 does not make such an allegation. The defence say that paragraph 5 only alleges one conspiracy and that one of the matters alleged to have been agreed in that conspiracy is that James Coe conspired with amongst others David Ng (a member of the syndicate) and Choo Kim San, to obtain control of Choo Kim San's interest in San Imperial. The defence say that is an allegation the plaintiff is not entitled to make having regard to the prior judicial findings.

20. The plaintiff on the other hand appears to make two answers to that. One answer is that the paragraph only avers that James Coe conspired as regard what is said in the paragraph to be stage two of the conspiracy. It is contended that the word 'conspired' at the beginning of the paragraph simply means 'agreed' and does not denote any wickedness on the part of James Coe, that the paragraph means that James Coe innocently agreed to the obtaining of control of Choo Kim San's interest, and was unaware that the other parties intended to, or in fact did use sham agreements in order to enable control to be passed to him. Mr. Yorke put it that his case in effect is that James Coe contacted the syndicate and inquired whether there was any chance of them getting Choo Kim San's shares in San Imperial for him, and that he in effect told the syndicate that if they did so he would buy the shares at the current market price, but that matter he nor his companies could afford that sort of money so he would have to rip the assets out of San Imperial to pay the shares, and to hell with the shareholders, that the relied upon David Ng to come into the SKC group and help him rip off San Imperial, because the syndicate had a vested interest, no help, no payment. The plaintiff's case is that in relation to acquiring the shares, the others, but not James Coe, behaved dishonestly. It is said that the conspiracy pleaded ante dated that dishonesty, but James Coe was not a party to the dishonesty. That is what I am told was intended to be conveyed by paragraph 5. In my opinion that intention has not been carried into effect. The word 'conspire' or 'conspired' in itself denotes something sinister, evil conduct. As used in the paragraph it involves an allegation that James Coe was wickedly involved in an agreement made to pursue the aims set out in the paragraph. That is an allegation that it is not open to the plaintiff to make.

21. Another way in which answer is made on behalf of the plaintiff to the charge that paragraph 5 alleges against James Coe a matter already judicially decided in his favour, is that the paragraph does not allege one conspiracy but two, the first being the conspiracy to effect Stage (1) and the second a conspiracy to effect Stage (2), and that it is only with the second conspiracy that this action is concerned. However, on a reading of the paragraph as a whole I find that it only alleges one conspiracy, though it was to effect two objects. The use of the expression 'this conspiracy' indicates that it is one conspiracy that is referred to. This is also indicated by the use of the expressions 'Stage (1)' and 'Stage (2)' . Stages are subdivisions of an entity. In this case the entity is a conspiracy. The expressions would be inappropriate if it was intended to refer to separate conspiracies.

22. Paragraph 5 does not express the meaning that is assigned to it on behalf of the plaintiff, and which I am told is the meaning it is intended to convey. Its meaning is that James Coe is guilty of conduct of which he has been cleared in previous judicial proceedings. Such an allegation is impermissible. That paragraph is the one that sets out the gist of the action. It is the one that to use counsel's expression, holds the other allegations together. The rest of the statement of claim is largely taken up by groups of para-graphs headed 'Conspiracy to Defraud - (1)' 'Conspiracy to Defraud - (2)' etcetera. One counsel, I think it was Mr. Litton, referred to these groups as the overt acts, and the other counsel adopted that terminology. These other matters alleged are intended to be overt acts done in pursuance of the conspiracy pleaded in paragraph 5. In the absence of paragraph 5 they appear as a number of disjointed acts or conspiracies involving different groups of defendants. If paragraph 5 goes the rest of the statement of claim goes with it. However, I consider that there could be an amended statement of claim which could bring the overt acts together to support an allegation of conspiracy to defraud that would not involve an attack on prior judicial decisions. I consider that the interests of justice would best be server by not dismissing the action, but by staying it and giving the plaintiff leave to amend. In the light of my decision on this issue I do not intend to deal exhaustively with the other matters that were put forward, however I shall refer to some of them.

23. In relation to various alleged overt acts there were submissions as to whether having regard to the findings in the previous proceedings, it is open to the plaintiff in the present proceedings to allege and prove the overt acts. I was referred to a number of authorities which I have considered but which I do not think it necessary to deal with them in this judgment. At the end of the day it became clear that this is in large part no longer a real issue between the parties. The alleged overt acts in large part took place after the judicial decisions and in respect of those ones no question of a bar can arise. I shall have something to say in respect of the ones which were or it is said ought to have been litigated in the previous proceedings. Of course no overt act at all can be alleged in respect of an alleged conspiracy that a court has found not to have existed, or to prove a person a conspirator whom a court has found was not. The cases to which I was referred are Stephens on v. Garnett ⁽⁷⁾ , Hovstead v. Commissioner of Taxation ⁽⁸⁾ , Yat Tung Investment Co. Ltd. v. Dao Heng Ltd . ⁽⁹⁾ , Brisbane City Council v. Attorney General ⁽¹⁰⁾ . I have also considered McIlkennv v. Chief Constable of the West Midlands and the Home Office reported in The Times of 18th January 1980 which I came across when preparing this judgment. That report would only have arrived in the Colony while the motions were at hearing.

24. One of the overt acts alleged is conveniently referred to as the Oceania matter. The facts alleged in respect of that are that James Coe and others sold off Oceania Finance and Land Corporation Limited (hereafter referred to as Oceania, which was a wholly owned subsidiary of San Imperial) to SKC in such a manner as to be disadvantageous to San Imperial and advantageous to SKC. Yang J. expressed the view that various matters in the Oceania affair were shams and he suggested fraud. He, however, in the final analysis left the matter open, as he was entitled to do. Furthermore it appears that James Coe and his associates at the trial before Yang J. deliberately kept back certain matters and that as a result the matter was not fully litigated. Though my view on the matter is obiter, I am of the opinion that there are 'special circumstances' (see Yat Tung Co. v. Dao Heng Bank ⁽⁹⁾ at page 590E) why it would not be an abuse of process to allow the Oceania matter to be fully litigated in the present case. The circumstances are not such as to make it unfair or unjust to allow the matter to be re-opened McIlkenny v. Chief Constable of West Midlands. Furthermore the present action is in reality the action of San Imperial which was not a party to the previous proceedings. The interests of the Company and its shareholders are not to be legally brushed aside when considering whether it would be proper to allow the matter to be litigated again.

25. Another series of overt acts alleged is that San Imperial lent money to SKC and another James Coe company, at low rates of interest, and once without security, at times when San Imperial was paying higher rates of interest on its own borrowings, and that the defendants thereby enriched themselves to the prejudice of San Imperial. It appears that two of those loans were prior to the decision in the previous proceedings. However it seems that it was not until later that MBF was aware of the fact that the loans were at a lower interest rate than San Imperial was paying on its own borrowings. My view is that it would not be unfair or unjust to allow this matter to be litigated.

(b) Contradictions, omissions and ambiguities

26. Both the 7th defendant Jack Choa and the 13th defendant Woo Kwan Yeung are individuals yet neither is mentioned in paragraph 5 as being a conspirator. It is said that the explanation of that is that they were not present when the conspiracy was hatched, but came in later and adhered to it. Of course if that is so, then James Coe ought not to be in paragraph 5 either because he also came in later and adhered. In my view, despite the decision in Tesco Supermarkets v. Natrass⁽¹¹⁾ , it ought not, as a matter of pleading, be left to implication to read a defendant into a conspiracy. If the plaintiff's case is that a defendant is a party to a conspiracy sought to be proved, either by being an original conspirator or by virtue of later adhering to the conspiracy, the plaintiff ought to make that clear in his pleading. There is a distinction between being involved in an isolated, or indeed a number of overt acts, and being a member of the conspiracy, though of course from participation in acts an inference of being a conspirator may be drawn. The distinction may be important in the evidential context and also in relation to the remedy to which the plaintiff may be entitled in respect of particular defendants.

27. Paragraph 5 appears to be a sufficient allegation of conspiracy to defraud in respect to the persons mentioned therein provided facts are pleaded to support it. The plaintiff's case as I understand it is not that he is able to prove a particular meeting at which a conspiracy was hatched, but that he can prove facts from which the inference of a conspiracy would arise. Therefore in his statement of claim be has to plead facts from which the inference could be drawn, and of course his pleading must disclose acts causing damage. One would have expected to find the word 'fraud' in paragraph 5, though it is not strictly necessary. It is strange that the word 'fraud' or 'defraud' is not mentioned in paragraph 5, which expresses the gist of the action, and yet it is mentioned in for example paragraph 31 which refers to a conspiracy to defraud in relation to particular matters. It appears that paragraph 31 is intended to refer to an overt act in pursuance of the paragraph 5 conspiracy, yet paragraph 31 is framed in such a manner as to suggest that it might not be such an overt act, but be a separate conspiracy not in pursuance of the paragraph 5 conspiracy. If paragraph 31 is intended to be an overt act under the paragraph 5 conspiracy, and I am told that it is , then it is in paragraph 5 rather than paragraph 31 that one would expect to find the word 'defraud'.

28. What I have said about paragraph 31 also applies to paragraphs 51 and 56. It is not made clear whether they are part of the paragraph 5 conspiracy or are separate and distinct conspiracies.

paragraph 61 (10) avers that the Annual Report of San Imperial 'alleged' a reimbursement. The plaintiff ought to make clear whether it asserts that what is alleged in the report is false, or that it is true, or plead in the alternative.

29. Paragraph 62 asserts that San Imperial sold Oceania to SKC for $7 million and that notwithstanding San Imperial was short of cash, the consideration to be paid by SKC in 7 million shares of $1.00 each in SKC. I am told that those shares were not worth anything like $7 million, If that is the plaintiff's case it ought to be pleaded.

30. Paragraph 55 alleges a breach of section 48 of the Companies Ordinance, but does not allege that the loans were given by San Imperial for the purpose of purchasing shares in the company. That purpose ought to be pleaded.

31. The statement of claim at paragraph 15 purports to set out which defendants were the directors of SKC. It does not include the 8th defendant David Ng. At paragraph 27 the statement of claim avers that David Ng was one of the persons who constituted a majority of, and controlled the board of SKC. I am told that the explanation of that is that the Annual Report of SKC said that David Ng was a director, but the Companies Register does not show him as such, and it is suggested that the matter is covered by pleading in paragraph 4 that David Ng is associated with James Coe and his wife in their business activities. If the plaintiff's case is that David Ng was a director, then that ought to be clearly pleaded.

32. These matters are so unclear that the defendant ought not to be required to plead to them as they stand.

33. Again it is unnecessary for me to go exhaustively through all the matters raise, that fall under this heading, but I consider I should mention some.

34. The plaintiff's cause of action is a conspiracy to defraud and acts done thereunder to the prejudice of San Imperial. In order to plead such a cause of action it is not necessary for the plaintiff to allege a particular meeting at which particular persons present when a conspiracy was hatched. It suffices if he alleges such a conspiracy and alleged facts involving the defendants, from which an inference of the existence of such a conspiracy could be drawn. At the trial it will be a matter of proof whether such a conspiracy is established. The facts pleaded looked at overall must allege facts from which a conspiracy could be inferred. If that is so, there must be alleged in respect of a particular defendant, facts from which it could be inferred that he was a member of the conspiracy. As regards conspirators an inference can be drawn that they acted on behalf of each other. It is necessary that in respect of each defendant there are allegations of fact from which the inference could be drawn that he was a conspirator.

35. The facts from which, viewed cumulatively, such an inference might be drawn are diverse. They could include such background matters as family or business relationships, common addresses, and acting in ways which, viewed in the light of ways in which others acted, led to an inference that they were not acting in isolation from each other by undesigned coincidence, but in concert and with a common and in view. In my opinion the allegations in the statement of claim are such that with amendments that appear open and likely are sufficient to show a case in respect of each defendant, of fraudulent conspiracy in relation to San Imperial.

36. With those remarks I go on to deal with some particular matters. What has been described as 'overt 1' is contained in paragraphs 31 to 37. This overt act appears to depend on tying the 2nd to 9th defendants into the formation of Hoi Fu Ltd. (the 11th defendant). For the defendants it is contended that no facts are pleaded from which that inference could be drawn. However, Hoi Fu Limited had its office at what has been described as James Coe's stable. For the plaintiff it is pointed out that there is an allegation that the defendants incorporated Hoi Fu Ltd. but cannot particularise further until discovery. In the circumstances I consider the pleading sufficient.

37. 'Overt 3' is contained in paragraphs 51 to 55 wherein it is alleged that the 2nd to 8th defendants caused San Imperial to make loans to SKC at rates of interest lower than San Imperial was paying on its own borrowings but there is no allegation that Barbara Coe (the 3rd defendant) was a director of San Imperial and the averments in paragraph 3 indicate that three of the defendants, alleged to be involved in this matter, only became directors of San Imperial after some of the loans had been given and that one of the defendants had resigned his directorship before some of the loans were given. In respect of those matters the pleadings do not support the allegation.

38. There are some matters in respect of which the plaintiff's counsel has indicated he will be applying to amend. Apart from the matters I have expressly dealt with, I have no doubt that in the course of the hearing it became clear that there are other matters which could be pleaded more clearly and without ambiguity.

39. Action stayed. Motion to strike out pleading adjourned.

Representation:

Mr. Richard Yorke, Q. C, Mr. Charles Ching, Q. C., Mr. Denis Chang, Mr. Patrick Fung and Mr. Winston Poon (J. S. M.) for Plaintiff

Mr. Michael Ozorio (Iu & Lai) for 1st and 12th Defendants.

Mr. Mark saville, Q. C. & Mr. Ronny Wong (Liu, Chan & Lam) for 2nd, 3rd. 5th, 7th, 10th, 11th, 14th and 15th Defendants.

Mr. Henry Litton, Q. C. and Mr. Robert Tang (Peter Mark & Co.) for 8th Defendant.

Mr. Mark Saville, Q. C. (Alfred Lau & Co.) for 13th Defendant.

(1) [1978] H. K. L. R. 270

(2) [1975] 1 Q. B. 373 at 390A - 391F, 400B - C, 407A -C

(3) [1957] 1 W. L. R. 1247 at 1250

(4) [1956] Ch. 565

(5) 4 De G. F. & J. 126

(6) [1866-67] 2 Chancery Appeals 459

(7) [1898] 1 Q. B. 677

(8) [1926] A. C. 155

(9) [1975] A. C. 581

(10) [1978] 3 W. L. R. 299

(11) [1972] A. C. 153