Anthony Eric Ryan Hotung v. Ho Yuen Ki
Read the full judgment text of CACV 178/2006 on BabelCite. This Court of Appeal judgment was delivered on 10 July 2007.
1. I agree with the judgment of Yuen JA.
Cited by 7 cases · Cites 1 case
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CACV 178/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 178 OF 2006 (ON APPEAL FROM HCMP 2701 OF 2005 ) ______________________ BETWEEN:
Before: Hon. Cheung and Yuen JJA and Yam J in Court Date of hearing: 6 December 2006 Date of Judgment: 10 July 2007 ---------------- JUDGMENT ---------------- Hon. Cheung JA: 1.I agree with the judgment of Yuen JA. Hon. Yuen JA: 2.This is an appeal from a judgment of Deputy Judge Gill given after the hearing of an Originating Summons issued under Order 85 rules 2(3)(a) and (c) of the Rules of the High Court. The order that the judge made in favour of the Plaintiff is set out in paragraph 27 below but before discussing the order, it is necessary to briefly set out some facts which are relevant to this appeal. Background 3.The Plaintiff (“Anthony”) is one of eight children (five sons and three daughters) of Eric Edward Hotung ("the father"). The Plaintiff and two of his brothers Michael and Sean are beneficiaries under a Declaration of Trust made on 29 November 1979 by the Defendant (“the Trustee”) of shares registered in her name in Hotung Enterprises Ltd ("HEL") a company operated by the father. They are also beneficiaries under a Declaration of Trust made on 6 February 1980 by the Trustee of shares registered in her name in another company operated by the father Hotung Investment (China) Ltd (“HICL”) which is a subsidiary of HEL. 4.The Trustee is (at the time of these proceedings) not a director of either HEL or HICL. However it appears from exhibit “AERH-7" that she had been a director of HEL between 1980 and 1985. HEL - Declarations of trust of shares (29 November 1979) 5.As far as HEL is concerned, it would appear that a total of 20,004 shares have been issued.
6.However Tang JA held that as far as the original 1 share held by the Trustee on trust for the father was concerned, the disposition of that equitable interest was invalid as it did not satisfy the requirement for writing under s.6(1)(c) of the Law Amendment and Reform (Consolidation) Ordinance Cap. 23. Accordingly the equitable interest in that 1 share remained with the father (para. 143). It follows that the Trustee’s Declaration of Trust in favour of Anthony, Michael and Sean only affected 10,001 shares. HICL - Declaration of trust of shares (6 February 1980) 7.As far as HICL is concerned, a total of 96 shares have been issued.
The Trusts 8.The trusts in favour of Anthony, Michael and Sean (which have been referred to as the "Ho trusts", in contrast to the trusts in favour of the daughters which have been referred to as the “Hillhead trusts”) were declared when they were minors. Apparently the trusts were not made known to them until nearly twenty years after the trusts were created, since when they have given rise to a number of proceedings. 9.To understand the orders which have been sought from the court in the present proceedings, it may be helpful to list out the proceedings concerning the trusts as they appear in the documents before us. Proceedings 10.In chronological order the material proceedings are as follows:
MP5851/01 11.The first of the proceedings between the parties (MP5851/01) is significant to this appeal. In those proceedings, Anthony and Sean alleged that in December 1998, HICL assigned the Kam Chin land to Hotung Estates Ltd (not to be confused with HEL) for $17.5m and that the Kam Chin land (together with other lots controlled by the father) were subsequently sold by Hotung Estates Ltd in April 2001 for $204m to a company called Base One. It has subsequently been alleged by Anthony (in HCA1216/06) that the Kam Chin land constitute a third of the total area of the land sold to Base One and that the Kam Chin land was especially valuable as it bisected the other lots. 12.In MP5851/01 Anthony and Sean alleged that they "became concerned that the [Kam Chin land] might have been sold at an undervalue by HICL to Hotung Estates Limited in 1998 ...". They asked the Trustee to furnish or procure 4 categories of documents, namely copies of :-
13.The Trustee did not file any affirmations at the time. Deputy Judge Gill’s Order in MP 5851/01 14.The matter came before Deputy Judge Gill in December 2001. The judge gave the orders sought in the Originating Summons with an amendment (set out in the passage quoted below). Unfortunately the judge did not provide a written decision but the following appears from the transcript of the hearing (p.8 E-L):
15.It is clear from that passage that the judge considered that Anthony and Sean were entitled to obtain the documents sought in the Originating Summons and that he considered it the Trustee’s duty to hand over what she had and to “make reasonable inquiry” for what she did not have. 16.There was no appeal from Deputy Judge Gill’s order. Compliance summons before Kwan J. 17.The Court file of MP5851/01 reveals that on 12 March 2002, Anthony and Sean filed a summons for an order that the Trustee comply with Deputy Judge Gill’s Order and furnish the documents listed in para. 12 (a) and (b) above as well as “a full account of the sale proceeds received and disbursed by HICL” of the sale of the Kam Chin land. I shall refer to this application as “the compliance summons”. 18.The summons was supported by an affirmation made by Anthony and Sean’s then solicitor who deposed that after Deputy Judge Gill’s order, the only documents the Trustee had given them were:
19.However a few days before the hearing of the summons, solicitors for HEL and HICL supplied to the Trustee the audited report for HEL for 1989 and 1994 and the audited report for HICL for 2001. These companies’ solicitors had previously informed the Trustee’s solicitors that there was no shareholders’ meeting in relation to HICL’s sale of the Kam Chin land in 1998 and that she was not entitled to minutes of any directors’ meetings as she was not a director. Shortly before the hearing, they also informed her that similarly as she was not a director, she was not entitled to profits tax returns or the account of proceeds and disbursements relating to the sale of the Kam Chin land. 20.After copying these documents to Anthony and Sean’s solicitors, the Trustee deposed on affirmation filed on 12 April 2002 that she had supplied to them all the documents available to her. 21.Apparently Anthony and Sean were content with that. The Court file reveals that at the hearing before Kwan J on 16 April 2002, Anthony and Sean’s solicitors informed the court that having received the further documents and in light of the Trustee’s affirmation that she had no further documents to produce, they wished to withdraw the summons (leave of the court being required under Order 21 rule 6) or seek no order. They did not argue that what the Trustee had done was not enough for compliance with Deputy Judge Gill’s order and that she should have done more. The only argument was as to the costs of the hearing. The summons was dismissed with no order as to costs. There was no appeal. Events after MP5851/01 22.It will be seen from the chronology of proceedings tabulated in para. 10 that after the hearing before Kwan J, the parties were involved in various other proceedings, the most important of which was of course the father’s action (HCA571/03) seeking a declaration that the trusts were revocable and that he had revoked them. I shall refer to those proceedings as “the revocability proceedings”. 23.On 4 March 2005 Tang JA (sitting as an additional judge of the Court of First Instance) held that the trusts were not revocable. MP2701/05 24.A few months later Anthony commenced MP2701/05 under Order 85 rules 2(3)(a) and (c) which provide:
25.In the Originating Summons, Anthony sought an order that the Trustee supply to him 22 categories of documents and information “which are available to the Defendant as trustee of the Plaintiff ... or alternatively to the extent such documents and information are available to the Defendant by way of diligent demand for the same”. The 22 categories of documents and information sought - listed as (a) to (v) - were not set out in any discernible order and covered a wide range of matters. The demand was supported by two short affidavits from Anthony, but as far as some of the categories were concerned, the affidavits did not even provide basic background facts. 26.The Trustee opposed the application, her case being advanced in similarly brief evidence - a short affirmation from her solicitor and a short affirmation from herself. 27.In his order, Deputy Judge Gill “pruned down” the documents and information to be provided to the following 10 categories, viz:
28.It is from this order that the Trustee is appealing. Should the court hear the Trustee’s appeal? 29.Before I deal with the merits of the appeal, I should first examine the argument advanced by counsel for Anthony that this court should decline to hear the appeal as the Trustee has failed to comply with the judge’s order even though there has not been a stay of execution. 30.Mr Egan relied on Hadkinson v Hadkinson [1952] 2 All ER 567 (CA). In that case a judge had made an order giving custody of a child to the mother subject to the direction that the child should not be removed from the jurisdiction without the court’s sanction (“the first order”). In breach of that first order, the mother took the child to Australia without obtaining the court’s sanction. The father then obtained an order requiring the mother to bring the child back (“the second order”). Whilst keeping the child in Australia, the mother sought to appeal the second order. The Court of Appeal held that as the mother was in contempt of the first order, she would not be heard on her appeal against the second order until she had purged her contempt. 31.The present appeal is quite different from that in Hadkinson. Here the order which has not been complied with is the very order that is being appealed, and that is an exception to the rule that a party in contempt would not be heard by the court whose order he had disobeyed. As Romer LJ held (p.570):
32.In any event, it is within the discretion of the court whether to hear the party in contempt. Some guidance was given by Denning LJ in Hadkinson who held (p.574-575):
33.In Hadkinson, it was clear that until the child was returned to the jurisdiction of the English courts, any orders which the court might make as to where he should stay would be ineffective. In the present appeal, even if any exercise of discretion were involved, I would not refuse to hear the Trustee because there are other means at Anthony’s disposal for securing her compliance with the order. Issues on appeal 34.I then come to the arguments advanced by counsel for the Trustee. They were these:
Discussion (1) Order 85 rule 2(3)(a) and (c) 35.Mr Yin argued that the range of the documents and information sought exceeds the ambit of Order 85 rule 2(3)(a). He emphasized that rule 2(3)(a) allows a beneficiary to ask a trustee to furnish (and if necessary verify) accounts only and not other documents or information. 36.With respect I do not think there is anything in this argument. The application was also made under rule 2(3)(c) which is in more general terms. The form in which a beneficiary has made a request to a trustee to perform an act is of secondary importance; the primary issue is whether as a matter of substance what a beneficiary is seeking from a trustee is the performance of a duty which the trustee owes to the beneficiary. (2) Effect of “condition” imposed by settlor 37.In the revocability proceedings, the father had argued that the trusts he intended to set up were subject to three conditions, summarized in the judgment as follows (para. 19):
38.Tang JA held the conditions not proved. He held (at para. 128) that “the only ‘condition’ at the time [when the trusts were created] was that the trustees were not to interfere in the management of the companies”. In respect of this ‘condition’, Tang JA held (para. 125):
39.Mr Yin argued that in view of this finding, the Trustee was under no duty to do what Deputy Judge Gill held in para. 22 of the judgment, i.e. “to make appropriate enquiry if it came to her attention as a member of HEL and HICL that those in control had undertaken some transaction or other that threw up certain questions or that there was some other matter that needed verification or explanation”. 40.Mr Yin relied on Armitage v Nurse [1998] Ch 241, where a man settled property in favour of his then infant granddaughter with her mother as a life tenant. The settlement was in writing and contained an exemption clause in very wide terms exempting the trustees from liability for any loss unless caused by the trustees’ “own actual fraud”. After the granddaughter reached majority, she sued the trustees for breach of trust, alleging that there was a deliberate course of conduct to disregard her interests and to favour her mother’s instead. 41.The trustees of course relied on the exemption clause. The granddaughter argued that the trustee exemption clause was void for repugnancy or was contrary to public policy. The granddaughter argued that there was an irreducible core of obligations owed by trustees to beneficiaries, which include the duties of skill and care, prudence and diligence, and as the exemption clause exempted liability from these duties, it was void. 42.Fraud or dishonesty not having been pleaded, the question posed by Millett LJ (as he then was) was this: “can a trustee exemption clause validly exclude liability for gross negligence?” (p.253) 43.Millett LJ (giving the judgment of the Court of Appeal) held that what is true of a contract must be true of a settlement and that it would be open to a settlor by appropriate words to limit the scope of a trustee’s liability for ordinary or even gross negligence (p.253). He accepted the granddaughter’s argument of an “irreducible core of obligations” but rejected her submissions of the extent of those obligations. He held (p.253G-p.254B):
44.Accordingly it was held in that case that the trustee exemption clause in the settlement was not void. But the court proceeded to order inspection of trust documents and gave leave to the granddaughter to amend her pleadings. 45.What is to be made of the “condition” found by Tang JA in our case? There was no contemporaneous record of what exactly the settlor had said at the time and “interference with management” may take many forms. Tang JA found that the father wished to have control over the companies. But it is one thing to exclude trustees from participating in day to day business or even strategically sensitive deals of a company. It is another to say that a trustee is entitled to sit back and do nothing even if it became reasonably apparent to her that trust property comprising shares of a company were being stripped of significant value. It is pertinent to note that Tang JA did not find proved the third condition (which referred to the trustees being “relieved of all duties”) and in his Ruling on Order and Costs on 17 June 2005 His Lordship specifically said (para. 7):
46.Accordingly I do not agree with the submission of counsel for the Trustee that by reason of Tang JA’s finding in the revocability proceedings, the Trustee was under no duty to make any inquiries under any circumstances about the management of the companies. (3) Trustee’s discretionary power? 47.Mr Yin also argued that even if the Trustee had power to call for the documents and information from the companies, it was a matter within her discretion and she could not be compelled to act against her wishes. He referred to In re Brockbank [1948] 1 Ch 206. I do not see how that decision assists him. The court there was dealing with a trustee’s discretionary power of nominating a new trustee. In the present case, what Anthony is seeking to do is to compel the Trustee to furnish or procure documents and information as part of her duty to furnish trust documents and to preserve the trust property. This court (Mayo VP, Stock and Cheung JJA) has held in Hotung and another v Ho Yuen Ki [2002] 4 HKC 233 at para. 32 that
As I have explained earlier, Tang JA’s finding of the settlor’s condition that the trustees do not “interfere with management” does not affect this duty to preserve trust property. (4) Effect of absence of other beneficiaries 48.Mr Yin also argued that it was not competent for Anthony to act in the absence of the other beneficiaries as he “only has a notional 1/3 undivided share in the trust property as a whole”. 49.I am afraid I do not follow that argument at all. The terms of the Declarations of Trust were that Anthony, Michael and Sean were given 3,334 shares each in HEL and 1 share each in HICL. The total of 10,002 shares in HEL and 3 shares in HICL happened to be put under 1 share certificate respectively. But that is not to say that Anthony obtained only a 1/3 undivided share in 10,002 shares in HEL or a 1/3 undivided share in 3 shares in HICL. Each individual share in a company is a right to a specific amount of the share capital, with rights and liabilities. The fact that a number of shares happen to be bundled under one share certificate does not alter the nature of a share. Nor does it matter that the actual serial numbers of the shares given to Anthony had not been set out in the Declarations of Trust. There is no evidence that any of the shares was any different from the others. It can therefore be presumed that they all rank pari passu. 50.I recognize that there is a slight complication with HEL in that the father failed to divest himself of his equitable interest in 1 share of HEL. It may be arguable that the court should imply a term that each son would have 3,333 shares with the two remaining shares to be held jointly by them. But it is not necessary for this court to decide that issue, because in any event Anthony is the beneficiary of at least 3,333 shares in HEL and 1 share in HICL. 51.Under Order 85 rules 3(1) and 3(2), whilst it is necessary for all trustees to be made parties to proceedings under that order, it is not necessary for all beneficiaries to be made parties. These proceedings are therefore competent. (5) Relitigation and abuse of process 52.Both parties have accused the other of abuse of the process in seeking to relitigate issues that have already been decided or which could have been litigated in earlier proceedings. Regrettably however the degree of assistance provided by counsel was somewhat less than that desired. 53.As I have said, the 22 categories of documents and information sought in the Originating Summons were difficult to follow and the affidavits from Anthony left a great deal to be desired but I only need to confine my views to the 10 categories ordered by the judge. - Duplicated categories: (e), (f), (g), (h), (i) 54.What would be noted immediately is that some of them exactly duplicated the categories in the compliance summons. The duplicated categories may be set out conveniently in the following table:
55.However neither party specifically referred to the compliance summons before Kwan J and the effect of the order dismissing Anthony’s summons. Indeed this court only became aware of the compliance summons and Kwan J’s order after it caused the Court file in MP5851/01 to be retrieved for its perusal (it was necessary to do so as Anthony’s affidavit in the present proceedings exhibited his affidavit in MP5851/01 but did not include the exhibits to the affidavit). 56.In the affidavit supporting the present application, Anthony referred in paragraph 3 to MP5851/01 and said in paragraph 4 “since such time no satisfactory resolution was reached in relation to such”. Anthony did not however refer to the compliance summons or to Kwan J’s dismissal of that summons after the Trustee supplied only some of the documents sought. In fact Anthony sought (in MP2701/05) some documents which he had already received before Kwan J’s hearing (in MP5851/01). These are the audited Financial Statements of HEL for 1989 and 1994 and the audited Financial Statement of HICL for 2001. 57.For her part, the Trustee also did not refer to the compliance summons. In her solicitor’s affirmation he referred to what the Trustee had received from HEL and HICL and said simply “in the premises and by reason of the situation as aforesaid [which did not refer to the compliance summons] the [Trustee] had, prior to the commencement of the present proceedings, complied with the same, i.e. the request under Item (a) to (m) inclusive of Clause 1 thereof”. 58.I have also read the skeleton submissions before Deputy Judge Gill and the transcript of the hearing. Neither party referred to the compliance summons and Kwan J’s order. Understandably therefore, Deputy Judge Gill did not refer to them. In para. 7 of his judgment, he said “I understand that Madam Ho did take some steps towards complying with the order but was unable to provide or make available much of the material sought; there the matter rested”. Accordingly it falls to this court to determine the issue whether Anthony should be allowed to relitigate the compliance summons. 59.Whilst Kwan J was not required to adjudicate on the issues in the compliance summons (save the dispute over costs), it should be noted that although the Trustee applied for leave to withdraw the summons it was not given and in the result the summons was dismissed by Kwan J. Presumably that was because Anthony’s solicitors had accepted that what the Trustee provided was sufficient compliance with Deputy Judge Gill’s order in MP5851/01. The summons had therefore been dismissed substantively, not merely on a procedural technicality. 60.The compliance summons was of course only an interlocutory application and res judicata in its strict sense may not apply, but this court (Mayo VP and Le Pichon JA) has held in Chu Hung Ching v Chan Kam Ming [2001] 1 HKC 396, 401 that the court should exercise its discretion not to entertain relitigation of an issue already dealt with by the court and in respect of which an order has been filed unless certain exceptions apply. Those exceptions have been conveniently set out in Hong Kong Civil Procedure 2007, Vol. 1, p.337-8, para. 18/19/11 as follows:
61.The question before us is whether exceptions (c) and/or (d) apply. In my view the passing of s.152FA Companies Ordinance in 2004 is a material non-evidentiary change of circumstance which would enable Anthony to relitigate the compliance summons in respect of some of the duplicated categories of items. Sections 152FA - 152FC allow a member of a company to apply to court for inspection of its records, subject to the safeguards of s.152FD (legal professional privilege) and s.152FE (privacy). Section 152 FA provides where material:
Section 152FB deals with ancillary orders that may be made by the court, including an order to specify the records that may be inspected and an order requiring the applicant to pay the reasonable expenses of the corporation. - Categories (f), (g), (h) and (i) 62.Categories (f), (g), (h) and (i, subject to the addition of verification of taxes paid) in the order appealed from are documents which appear to be “records” for the purposes of s.152FA. Mr Yin has not challenged the applicability of s.152FA on the basis that the Trustee does not hold the necessary proportion of shares. As such, it is now possible in law for the Trustee as a member of HEL and HICL to apply to the court for the companies to supply these documents for her inspection even though she is not a director. It is no longer open to her now to argue that a beneficiary is not entitled to ask her to obtain these documents from the companies, as she did not appeal Deputy Judge Gill’s order in MP5851/01. She may of course require an indemnity from Anthony for her expenses including her legal costs if the companies refuse to provide the records and she needs to make an application to the court under s.152FA. (I would add out of an abundance of caution that this court is not deciding that the companies would be obliged to provide the documents sought. It is for the court hearing that application to decide whether or not to make an order for inspection). 63.As for the addition in category (i) that the companies provide “verification of taxes paid on the sale of the [Kam Chin land]”, presumably what is meant is the stamp duty paid on that transaction as profits tax is not paid on an individual transaction. As the amount of stamp duty may be an indication of the value of the property sold, I think it is an appropriate addendum to the other categories already ordered by Deputy Judge Gill in MP5851/01. - Order in respect of Categories (f), (g), (h) and (i) 64.Accordingly I would dismiss the Trustee’s appeal from the judge’s order in respect of Categories (f), (g), (h) and (i), save that the order should also state that the Trustee should be indemnified by Anthony for her expenses including the legal costs of any applications that may have to be made to the court under s.152FA. - Category (e) 65.Category (e) requires separate consideration. Share certificates of issued shares are not normally kept by companies so s.152FA would not assist Anthony. 66.Is there any new evidence that seriously justifies reconsideration of the issue? There appears to have been some evidence at the revocability proceedings about the whereabouts of the share certificates but Tang JA did not make any specific findings as to their present whereabouts. I do not see any new evidence that indicates any change from the situation at the time of the compliance summons. For instance Anthony has not alleged that after the dismissal of the compliance summons, the Trustee has in fact obtained the Share Certificates and in fact the Trustee has said on affirmation that she does not have possession of them. 67.In Anthony’s affidavit he emphasized Tang JA’s finding that the Trustee lacked neutrality when giving evidence about the father’s intention at the time the trusts were created. However that finding does not show that the Trustee has the documents, nor does it affect whether the Trustee had complied with Deputy Judge Gill’s order or not. Put another way, when the matter came before Kwan J, the Trustee had either complied with Deputy Judge Gill’s order in MP5851/01 or she had not. By taking the position that he did before Kwan J, Anthony has accepted that the Trustee need not do anything else by way of compliance with Deputy Judge Gill’s order in MP5851/01, in other words that she had adequately complied with the order. - Order in respect of Category (e) 68.Accordingly I would allow the Trustee’s appeal in respect of the order for Category (e). - Categories (a), (b), (c), (d) and (j) 69.That leaves Categories (a), (b), (c), (d) and (j). Mr Yin has argued in a general way that these categories could have been demanded in previous proceedings and therefore it is an abuse of process for Anthony to demand these categories now. I would observe that whilst the principles of abuse of process apply as much to litigation between trustee and beneficiary as they do to litigation between other parties, one should remember that in this case there is an extant ongoing trustee-beneficiary relationship. If what is sought are trust documents or actions that a trustee should take to perform her duty as a trustee, a court should not reject a beneficiary’s demands for them simply because he could have asked for them in earlier proceedings. 70.So the question is: are these categories trust documents in the Trustee’s possession and if they are not in the Trustee’s possession, should the court order the Trustee to take steps to obtain them, such as by making applications to the court under s.152FA? 71.I am mindful that when making his orders, Deputy Judge Gill was exercising his discretion and it is well-established that an appellate court would not lightly interfere in the exercise of a judge’s discretion. One exception however is where there is no evidence to support the exercise of discretion. 72.The beneficiary’s entitlement to some or all of these documents must be examined against the history of the proceedings and the evidence before the court. I have set out the history of the proceedings earlier in this judgment. As for the evidence, Anthony’s affidavits contain many serious allegations against the Trustee but he has not exhibited the source materials which have led him to make demands for some of these documents and information. 73.In Anthony’s affidavits, he has accused the Trustee (in general terms) of conduct in breach of her fiduciary duty as trustee and deposed to his belief that secret profits had been made and that other irregularities existed in connection with her position as trustee. He exhibited a letter dated 10 November 2005 from his present solicitors to the Trustee’s solicitors. The letter contained the same wide-ranging request for documents and information but did not set out the grounds for requesting those documents and information other than the Trustee’s lack of neutrality in the father’s revocability proceedings. In relation to the Kam Chin land, the letter made even more serious allegations. It said “to date [the Trustee] has failed to provide any details relating to the Trust land transaction [the Kam Chin land]. It is in this area in particular that it is felt fraud and/or dishonesty or collusion to the detriment of the Beneficiaries has taken place” and that the Trustee “has proved herself to be criminally reckless” as to the administration of the Ho Trusts. 74.Those are serious allegations but they do not give a licence to adopt a “scattershot” approach. Although Anthony has instituted hostile litigation against the Trustee, there is a distinction between a beneficiary’s right to trust documents and a litigant’s right to disclosure in the discovery process in hostile litigation (Underhill and Hayton, Law of Trusts and Trustees 17th ed paras. 60.36 - 60.38). For example, documents relating to a trustee’s exercise of discretion may not be disclosable in proceedings under Order 85 rule 2 but may be disclosable in the hostile litigation. The other side of the coin in my view is that it is not legitimate for a beneficiary, under the guise of asking for “trust documents”, to “fish” for evidence to support an action against a trustee for damages for breach of trust. He must show that what he is asking for is grounded in the law of trusts and justified by the evidence. 75.Furthermore, even if it were permissible for a beneficiary to ask for documents from his trustee so as to arm himself for hostile litigation against the trustee, I still cannot see what evidence justifies requiring the Trustee to procure some of the documents Anthony is demanding. - Category (d) 76.Anthony applied under Category (d) for disclosure of “names of all employees of HICL and HEL or the Trust since 1997". He has not explained at all in his affidavits why as a beneficiary of a shareholder he is entitled to know the identities of employees of the companies. And there is no evidence that the Trust even had any employees at all. The inquiry may be a “fishing expedition” for the names of possible witnesses that he may wish to contact. In any event, I cannot see any legitimate ground for the demand under Category (d) on the evidence before the judge and Mr Egan has not been able to suggest any in submissions. - Category (c) 77.Similarly, there is nothing in the evidence to support the request under Category (c) - the number of publicly traded shares in CIHL held by HEL and HICL for the nearly 10 years between 1 January 1996 and 30 September 2005. It is evident from Tang JA’s judgment that CIHL is a company that the father had taken to listing but (other than the page from HEL’s financial statements for the year ended 31 December 2003 annexed to the Originating Summons) there was no evidence before the judge to show that HEL or HICL had ever held any of its shares and what impact that had on those companies, let alone the Trust. Even taking into account the allegations in the Statement of Claim in HCA1216/06, one can find no reference to any trading of shares of CIHL as an indication of mismanagement. - Order in respect of categories (d) and (c) 78.Accordingly I would allow the Trustee’s appeal in respect of the orders for Categories (d) and (c). - Category (a) 79.This is a demand for the Trustee to furnish or procure “all bank statements, brokerage account statements, tax returns, insurance policies, title deeds, contracts, minutes and board resolutions of HEL and HICL for the period from 1 January 1996 to 30 September 2005". It is obvious that the more wide-ranging the categories of documents and the longer the period covered, the more oppressive the demand. Has that demand been justified by the evidence? 80.The only evidence before the judge that provides a basis for Anthony’s concerns about the way in which HEL and HICL were run related to:
81.It can be seen immediately that the demand under Category (a) is therefore far too wide. For instance, I can see no evidence justifying Anthony’s demand that the Trustee furnish or procure the companies’ brokerage account statements or insurance policies at all, let alone for a period of nearly 10 years. Nor is there any evidence to say why it is necessary for title deeds to be procured when what is in dispute is only the valuation of land. Nor is there any evidence to justify why any documents prior to the financial year 1 April 1996 to 31 March 1997 would be relevant at all. Moreover there is some overlap in the period of years of profit tax returns between Category (a) and Category (h). 82.As far as the other documents are concerned, I am mindful of an appellate court’s duty to respect the judge’s exercise of discretion where there is some evidence to support his decision and the order I propose to make reflects that approach. - Order in respect of Category (a) 83.Accordingly I would allow the Trustee’s appeal in respect of the order under Category (a) and substitute it with the following order:
- Category (b) 84.This category is covered by the order proposed under Category (a) which includes the contracts, minutes and resolutions relating to the loans to related companies. A further order in the terms under Category (b) is premature. - Order in respect of Category (b) 85.Accordingly I would make an order setting aside the judge’s order under Category (b). - Category (j) 86.This demand springs from HEL’s Notes to the Financial Statements for the year ended 31 December 2003. There is recorded under “Post Balance Sheet Event”, a statement that HEL had “disposed [sic] the land and building for an aggregate consideration of approximately HK$6,466,200". Anthony sought under Category (j) “an accounting in respect of the identification of property referred to at para. 11 on page 12 of the HEL financial report for the year ended 31 December 2003 ... including the date of sale, parties to the sale and an account of receipt and management of said sale proceeds”. 87.I would have thought that the property would have been identified in other parts of the financial statements but presumably that is not the case. In her affirmation the Trustee has said simply that she has “no knowledge or information on the matters in question/the Plaintiff is not entitled to the same”. This is not the attitude to be expected of a trustee of a majority shareholding (cf Bartlett v Barclays Bank Trust Co Ltd [1980] Ch 515). Therefore although the evidence from Anthony is not entirely satisfactory, I am not prepared to interfere with the judge’s exercise of discretion. - Order in respect of Category (j) 88.Accordingly I would dismiss the Trustee’s appeal in respect of the order for Category (j). Order nisi as to costs 89.Taking the appeal in the round, I consider that the Trustee has been unsuccessful and applying the principle that costs should follow the event, I would make an order nisi that the Trustee pay the costs of the appeal. Hon. Yam J: 90.I agree with the judgment of Yuen JA and there is nothing I can usefully add.
Mr Kevin Egan instructed by Oldham Li & Nie for the Plaintiff (Respondent) Mr Michael Yin instructed by CK Mok & Co for the Defendant (Appellant) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Further hearings and rulings under CACV 178/2006