David Ng Pak Shing and Others v. Lee Ing Chee and Others
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CACV000012/1978
----------------- Coram: Briggs, C.J., Huggins and Pickering, JJ.A. Date of Judgment: 22 March 1979 ----------------- JUDGMENT ----------------- Huggins, J.A.: 1. By an Agreement dated 30th April 1977 (which has been called "the Rocky Agreement") the Appellant Ng, who was in truth acting on behalf of himself and the Defendants Ives and Ho, agreed to sell to Rocky Enterprises Co. Ltd. ("Rocky") 23,000,000 fully paid up shares of ? each in San Imperial Corporation Ltd. ("San Imperial"). On 12th May 1977 that Agreement was replaced by another Agreement ("the New Rocky Agreement"), which had substantially the same object although the machinery by which the sale was to be effected was more complicated. It is enough to say at this point that the judge has found that Rocky paid to the Vendor under that Agreement the whole of the purchase price for the 8,000,000 shares so far handed over, including $11,446,500 for 7,631,000 of them, which have since been registered in the name of the Defendant IPC Nominees Ltd. ("IPC"). IPC is a company controlled by a Mr. James Coe, who also controls, directly or indirectly, Rocky and another company - Siu King Cheung Hing Yip Co. Ltd. ("SKC"). It was no doubt at the instance of Mr. Coe that the 7,631,000 shares were registered in the name of IPC. Fifteen million of the shares which Ng agreed to sell to Rocty are still registered in the name of Fermay Co. Ltd. ("Fermay"), a company formed by the Appellants Ng, Ives and Ho (called "the Syndicate") as a vehicle for the purchase and holding of the shares pending their re-sale to Coe or to one of the companies in which he was interested. The 15,000,000 shares and another 2,164,200 of the shares sold to Rocky came into the hands of the Syndicate through a Mr. and Mrs. Chow of Taiwan, the 8th and 9th Defendants. The 15,000,000 shares had come to the Chows through the Defendant Choo Kim-san and the Chows agreed to sell them to Ng at a price of 60 cents a share. The Chows also arranged the sale to Ng of the 2,164,200 shares, which they said belonged to a Mr. Lee and a Mr. Fong. There was evidence that these 2,164,200 shares were bought by Ng with his own money on his own behalf, although they were eventually to be sold to Coe along with any shares acquired by the Syndicate. The learned judge was doubtful about the existence of Lee and Fong but it was common ground that if they did exist they had acquired their shares from Choo Kim-san. If Lee and Fong were fictitious, the judge concluded, the 2,164,200 shares came to Ng direct from Choo Kim-san. Ng bought them at only 20 cents a share. Although, on behalf of the Syndicate, he agreed to buy the 15,000,000 shares, that purchase was effected indirectly through Fermay. It was a complicated transaction the essential steps in which were as follows: 1. The Chows were appointed directors of Fermay. 2. The capital of Fermay was increased to allow the issue of shares to a sum equal to the price Ng was to pay for the 15,000,000 San Imperial shares, namely $9,000,000. 3. The new shares in Fermay were allotted to the Chows. 4. The proceeds of that allotment to the Chows were used by Fermay to buy from the Chows the 15,000,000 San Imperial shares. 5. By an agreement in writing dated 23rd March 1977 ("the Fermay Agreement") the Chows agreed to sell to the Syndicate their entire shareholding in Fermay for $9,000,000. It will be necessary to consider this transaction in greater detail later on, but for the moment enough has been said about it. The Respondents to this appeal obtained judgments against Choo Kim-san and sought to execute upon them. They alleged that all the foregoing dealings with the shares of San Imperial were shams designed to mask the continuing beneficial interest in them of Choo Kim-san. They obtained (inter alia) charging orders nisi against
and they obtained garnishee orders nisi in respect of
The judge discharged the charging order in respect of the 7,631,000 shares registered in the name of IPC on the ground that the beneficial interest in them had passed under the New Rocky Agreement and he also discharged the garnishee order in respect of the $8,800,000 on the ground that the Fermay Agreement was a sham and no debt was incurred under it. The order charging the 15,000,000 San Imperial shares in the hands of Fermay was made absolute. The garnishee order in respect of the sum of $11,446,500, part of the price paid under the New Rocky Agreement, was made absolute only to the extent of $2,813,300. This was on the basis that of the shares so far transferred under that Agreement 2,164,200 had come from Choo Kim-san through Lee and Fong, so that in truth the purchase price for them was due not to the Syndicate but to Choo Kim-san. The price to Rocky of those 2,164,200 shares was $3,246,300, but the judge gave credit for the sum of $433,000 which the Syndicate had already paid to the Chows for the benefit of Lee and Fong (and, therefore, of Choo Kim-san). The Appellants seek to set aside the orders absolute. 2. At one stage I had doubts whether it was right to give credit for the $433,000 which Ng had paid to the Chows on account of the purchase price of the Lee and Fong shares. On the findings of the learned judge it would seem at first sight that the Syndicate, having received the whole of the purchase price paid by Rocky, held the entire sum on trust for Choo Kim-san and that the money which had been paid to the Chows (ostensibly as the purchase price of the Lee and Fong shares) was a separate and distinct matter which could not reduce the Syndicate's liability to Choo Kim-san. However, if the sale by Lee and Fong to Ng was a sham and if Lee and Fong were in truth nominees of Choo Kim-san, the $433,000.00 had already been paid to Choo Kim-san through his nominees. Had all the transactions been genuine the profit made by the Syndicate would have been the price it received less the price it paid. If the Syndicate, as a nominee of Choo Kim-san, received the shares from other nominees of Choo Kim-san, under a sham agreement, any payment made by it under that agreement could fairly be treated as an advance payment on account of the planned resale, for it could be consideration for nothing else. That being so, I am satisfied that, when calculating the debt still owing, it was proper to give credit for the sum which had been paid. 3. As I understand it, the substance of Mr. Sherrard's argument as to the law is based upon the finding by the judge that "MBF has not made out a case of conspiracy against the Syndicate, as described in paragraph 7 of their Statement of Claim" ("MBF" being Malaysia Borneo Finance Corporation (Malaya) Berhad, one of the Respondents) and it seems to me that a large part of the difficulty which has arisen in the case stems first from the attitude to the pleadings which was adopted in the court below and secondly from an insufficient analysis of what the judge meant by his reference to the conspiracy which was described in the Statement of Claim. Unfortunately the actions became so complicated that the parties abandoned any attempt to litigate upon the basis of the pleadings as drafted. As the judge says:
Paragraph 7 of the Statement of Claim of MBF states:
What that suggests at first sight is a conspiracy by all the Defendants to procure either one legally binding agreement or a series of legally binding agreements which would have the effect of transferring the beneficial interest in the shares from Choo Kim-san to a third party. However, a conspiracy to procure a final transfer to a third party which was to be legally binding, preceded by a number of sham transactions which were to have the appearance of transfers but which were not intended to convey the beneficial interest, might conceivably be within the paragraph. When one turns to the particulars one finds a third possibility, a conspiracy to do no more than give the appearance of a transfer of the beneficial interest by a series of transactions which was not intended to have the effect of transferring the beneficial interest at all: both the Fermay Agreement (part of the Fermay transaction) and the New Rocky Agreement are described as "purported" Agreements. It is questionable whether that was of itself sufficient allegation of a sham, for it could be interpreted as merely raising an issue whether the Agreements were duly executed or whether the parties were ad idem, but I think everyone understood it as alleging shams. The matter is further complicated by the express disclaimer in the particulars of any allegation against Coe "as to whether or not he was a party to the conspiracy pleaded herein". Strictly the substance of the pleading should be ascertained from the body of it and not from the particulars. On that basis the words "the conspiracy as described in paragraph 7 of the Statement of Claim" in the judgment could mean either of the first two alternatives. A finding that there was no conspiracy of the second kind would have been inconsistent with the other findings, because they established just such a conspiracy, but a finding that there was no conspiracy of the first kind would not. If one reads paragraph 7 as a whole, it becomes clear that what was intended was to allege that all the transactions from first to last were a mere front to give the impression of a transfer of the beneficial interest when in truth the beneficial interest was intended to remain in Choo Kim-san. A finding that there was no conspiracy of this third kind was not inconsistent with the other findings, because they included a finding that the New Rocky Agreement was not a sham. Unless it can be shown that the meaning intended by the learned judge was necessarily one which would produce inconsistency, the argument based upon inconsistency must fail. I am not persuaded that the learned judge was guilty of such an inconsistency as Mr. Sherrard has submitted. On the contrary, in the context I think the judge interpreted paragraph 7 strictly and was merely emphasising a consequence of his findings that Rocky had "entered into the two agreements innocently with the Syndicate on 30th April and 12th May 1977 respectively" and that all the preceding transactions were shams. Once that is accepted, the suggested inconsistency disappears. 4. I must here mention that, whereas I have just assumed that the judge did find the Fermay transaction to be a sham, it was questioned in the course of the hearing whether he had so found. It was rightly said that there was no direct finding to that effect, but such a finding was implicit. It is to be inferred, for example, from the finding that "all the parties [to the transaction] knew that the transaction between the Syndicate and [the Chows] were shams" (sic). That is not a finding that they believed the whole transaction to be a sham, whether it was or not, but that they knew it was in fact a sham. The "transaction" included much more than the Fermay Agreement of 23rd March. This finding therefore undermines the argument that, if (i) the Fermay Agreement was a sham and (ii) the Chows were agents of Choo Kim-san, no charging order could be made upon the San Imperial shares registered in the name of Fermay although a charging order could be made upon the Fermay shares. As it seems to me, if the whole Fermay transaction was a sham, it must follow that the purported transfer of the San Imperial shares to Fermay was ineffective to transfer the beneficial interest away from Choo Kim-san. 5. There has been much discussion whether the members of the Syndicate were Choo Kim-san's nominees. The judge expressly found that the Chows, and also Lee and Fong (if they existed), were nominees of Choo Kim-san but he made no such finding in respect of the others. It has always been Mr. Ching's contention that they, too, were nominees, although the matter was not pressed in argument, whilst Mr. Yorke told the trial judge that he was not relying upon any such contention. I think Mr. Yorke's contention was that the Syndicate was never intended to receive, and in the event did not receive, a grant of an interest (legal or beneficial) in any of the shares: Choo Kim-san retained the beneficial interest in all of them until it was conveyed to Rocky, whilst the legal interest in the 15,000,000 shares passed to Fermay (a legal entity distinct from its members) and the legal interest in the Lee and Fong shares passed from Asiatic Nominees Ltd. ("Asiatic") and Triumphant Nominees Ltd. ("Triumphant") - two of Choo Kim-san's nominee companies - through several hands into the hands of IPC without at any time vesting in the Syndicate. If by "nominee" is meant a person named as the recipient of a grant of an interest in the San Imperial shares, then I agree that the Syndicate was not a nominee, but it is debatable whether the word can be so limited. It may well be wide enough to cover the situation where Choo Kim-san nominated the Syndicate to become the sole shareholder of Fermay, which was to receive the legal interest in the 15,000,000 San Imperial shares. Although the Syndicate, being in law distinct from the company of which it held shares, had no direct interest in the San Imperial shares, it was a "nominee" to hold the shares of Fermay and thereby to exercise control over the San Imperial shares on behalf of Choo Kim-san. I think that is the better view, but it is immaterial to the real issues in the case. 6. The substance of the Appellants' argument runs like this:
I think it is common ground that there was no discussion in the court below as to the elements of a sham, but we are not to assume that the learned judge was ignorant of them. Mr. Sherrard submits that none the less the judge did apply the wrong principles and counsel cited to us a number of cases. I do not find it necessary to refer to them, because I think the law is reasonably clear and that there is no real disagreement here between the parties. All I would say is that I think when one is looking at a case on the subject of shams one must be careful to bear in mind the type of case with which the court was dealing: the language used in a case where the transaction was alleged to have been intended to have no legal effect at all may be misleading when read in relation to a case where the transaction is alleged to have been intended to produce some legal effect but not that which appears upon its face. What the Respondents were alleging here was that the Fermay transaction was intended to bring about a transfer of the legal title to the shares by registration of Fermay as owner, but nothing more. That is to say, the beneficial interest was not to be transferred as the indicia would suggest and no money was to pass from the Syndicate to the Chows or to Choo Kim-san, whose nominees the Chows were alleged to be. If that was what the parties intended, it was undoubtedly a sham and the court should act on the basis that the beneficial interest has not been transferred: the transaction was not a nullity but its effect was limited to the legal interest. When the learned judge said in his judgment that the Fermay Agreement was a nullity, he must be taken as having concerned himself only with the beneficial interest, which was all that was directly in issue in execution proceedings such as these. 7. It is now necessary to look at the reason why, in Mr. Sherrard's submission, it is apparent that the learned judge applied a wrong test for a sham, namely whether the Syndicate was aware that the Chows were nominees of Choo Kim-san. At least twice in the course of his judgment the learned judge said that Ng had admitted that he knew he was purchasing shares from Choo Kim-san's nominees, and the judge accepted that to be the truth, although Ng insisted in evidence that he believed he was acquiring the 15,000,000 shares from independent vendors. So, the argument goes, the learned judge must have thought that a purchase of shares from a known nominee could not be a genuine purchase. Disregarding the further contention that Ng never made the admission attributed to him, I am far from satisfied that the learned judge made the error relied upon: it was only necessary to state the proposition of law shorn of all irrelevant verbiage for it to be obvious that it was untenable. Nor is it suggested that the Plaintiff's ever put their case in that way. I merely observe in passing that I think the learned judge may have read too much into Ng's "admission" and that it would have been more accurate to say that Ng admitted "that he knew he had purchased shares from Choo Kim-san or his nominees": it is not clear that he was talking about the Fermay transaction. That would not, however, have destroyed the entire force of the judge's point, which I take to be that Ng's previous admission fitted ill with the assertion of both himself and Ives in evidence that they were satisfied that the Chows were beneficially entitled. Again, the judge said more than once that "the profits" on the transactions were to be split and it is argued that there could be no "profits" unless the transactions were genuine. With respect I think that that is too literal a reading of the judgment: it is quite clear that the learned judge was referring to the financial benefits to be obtained through the transactions, whether or not they were profits in the commercial sense. 8. Although I said that an alleged inconsistency between the findings by the learned judge that MBF had not made out a case of conspiracy against the Syndicate and the finding that the Fermay transaction was a sham constituted the main plank in Mr. Sherrard's argument, he attacked the latter finding also on other grounds: counsel submitted that the documents and undisputed facts were inconsistent with it and that it was based upon the wrongful rejection of the evidence of Ho, Ives and Ng and that of Coe. He argued that the reasons given for disbelieving their evidence were invalid and that, even if that evidence was justifiably disbelieved, there was no sufficient evidence upon which the judge could find in favour of the Respondents that the transaction was a sham. 9. The story opens with the breach by Choo Kim-san of his recognizance to appear to answer charges of criminal fraud. On his flight from the jurisdiction he took with him the scrip relating to a large number of shares in San Imperial. Those shares were registered in the names of Choo Kim-san's nominees. He, perhaps because he foresaw the possibility of a future execution against the shares, decided that they must no longer appear as his property. The Appellants say that he sold some of them to Mr. and Mrs. Chow and some to Messrs. Lee and Fong. As we have seen, the judge doubted even the existence of Lee and Fong but no one has doubted that Mr. and Mrs. Chow exist (they were apparently served as Defendants) or that they purported to sell shares to Ng. What is questioned is whether they, and Lee and Fong (if they existed), were nominees of Choo Kim-san and whether they intended to pass the beneficial interest in the shares they agreed to sell to Ng. It is the contention of the Respondents that Ng was merely another nominee of Choo Kim-san and that no property passed to him. Neither Mr. Chow nor Mrs. Chow entered an appearance to resist the proceedings instituted by the Respondents. That in itself is relied upon as indicating that they have no beneficial interest which they could protect. 10. The version of events relied upon by the Appellants is that, having been told by Coe that he was a prospective purchaser, the Syndicate started looking for Choo Kim-san with a view to acquiring a controlling interest in San Imperial, the principal business of which was that of a hotel in Hong Kong. Ng was the person assigned the task of finding and negotiating with Choo Kim-san: in December 1976 the search was begun, although not before the members of the Syndicate had questioned whether it would be lawful to deal with a fugitive from justice and had agreed to obtain an opinion from counsel in London. Ng testified that he started his search for Choo Kim-san in Bangkok during his Christmas holiday and that he subsequently went to Taipei on 30th December 1976 and chanced to meet Choo Kim-san the following morning in the coffee ship of the hotel at which Ng was staying: Choo Kim-san told him that he had sold the shares and named the Chows as the buyers, after which Ng saw the Chows: Mr. Chow told him that they had shares which they were prepared to sell: there was some discussion about San Imperial and the price of its shares, but nothing was agreed: Ng returned to Hong Kong on Saturday 1st January 1977 and went straight to the race course: he was unable to communicate with the rest of the Syndicate until Monday the 3rd, when he spoke to Ives on the telephone and said he had located Choo Kim-san and thought it "likely they were in business". According to Ives he then dictated a telex message asking for the opinion which it had been agreed should be obtained from English counsel. Ng said he also spoke to Ho on the Monday and as a result they started buying San Imperial shares on the stock market: there followed a lunch meeting on Tuesday the 4th, at which Ng made a full report on his visit to Taiwan: he returned to Taiwan on 9th January and discussed with the Chows the price at which they would be willing to sell their shares: he was shown a bundle of share certificates and there was also some discussion about the genuineness of those certificates: again nothing was agreed and Ng returned to Hong Kong on 13th January: the Syndicate considered ways of satisfying themselves of the genuineness of the share certificates: Ng made a third visit to Taiwan from 23rd January to 27th January: he and Chow approached banks to see if they would accept the share certificates as security, that being one of the ways in which it was thought their genuineness could be proved: the banks refused: on this visit Ng asked to see the blank transfer forms which the Chows had received with the share certificates and there was some inconclusive haggling over the price the Syndicate would pay: Mr. Chow, apparently for the first time, said how may shares they were offering and added that some of them had been purchased by himself and that he was holding some for friends - 15,000,000 and 515,000 respectively: he said that all these shares "would be sold together" and he showed Ng two of the transfer forms: on his fourth visit, from 9th February to 13th February, Ng took with him what has been called a working draft Agreement, which had been drawn up by Ives: Mr. Chow thought that the draft was unreasonable and rejected its terms: there was further haggling over the price but nothing was agreed about the 15,000,000 shares: Lee and Fong took part in the discussions on this occasion: the price offered for their shares had been 20 cents a share and they insisted that that was too low: however, on the day of his departure Ng was told by Mr. Chow that Lee and Fong had handed him 514,200 shares and that they wanted to be paid as though there were 515,000: Ng agreed and promised to pay 20 cents a share on his next trip to Taiwan: on his return to Hong Kong Ng found that Ho was not happy about his purchase of the 514,200 shares, and eventually the Syndicate agreed that Ng would be buying them on his own account: Ng went back to Taiwan on 23rd February and haggling continued over the price of the 15,000,000 shares: he paid for the 514,200 shares and was handed the relevant documents: on the occasion of this fifth visit Mr. Chow told him that his friends were now offering a further 1,650,000 shares but that they wanted 30 cents a share: Ng counter-offered 20 cents and Chow told him next day that he had been handed the certificates relating to the 1,650,000 shares: Ng promised to pay on his next trip to Taiwan: he returned to Hong Kong on 2nd March: he did not have the Bought and Sold Notes for the 514,200 shares stamped immediately because they would have had to be stamped according to their market value of 40 cents and he hoped the market price would drop back to 20 cents, so the certificates were locked away in a safe: they were eventually stamped after the acquisition of the 15,000,000 shares: Ng's shares were registered in the name of MAF Nominees Ltd. ("MAF Nominees"): on 5th March Mr. Chow telephoned and agreed to sell the 15,000,000 shares at 60 cents a share: thereupon the Syndicate embarked upon the formation of Fermay and prepared a draft Agreement, some transfer forms and various other documents relating to the proposed Fermay transaction: these documents were taken by Ng to Taiwan on 22nd March, except for the draft Agreement, which he left behind and had re-typed in Taiwan: the sale of the 1,650,000 shares to himself was now completed and these also were subsequently registered in the name of MAF Nominees: the draft Agreement relating to the 15,000,000 shares became the Fermay Agreement of 23rd March 1977, but at the time it was executed there were blanks still to be filled: the blanks were filled later in Hong Kong and a completed copy of the Agreement was taken by Ng to Mr. Chow on his seventh visit to Taiwan, which began on 1st April: Ng also took for signature by the Chows the minutes of the meeting of the board of Fermay, this being the final document evidencing the Fermay transaction. 11. All that needs to be added here in relation to the Fermay transaction is that documents introduced during the interlocutory proceedings showed that Ng had apparently given a different chronology of some of the negotiations previously. In particular he must have said that Lee and Fong had told him on or about 12th February 1977 (that is during his fourth visit) that they had some - in fact 514,200 - San Imperial shares which they were interested in selling to him. although in his evidence he said that Mr. Chow had told him about those shares on his third visit. This is relevant because Ives could not have included a reference to those shares in the working draft Agreement if Ng had not been told about them until his fourth visit. 12. The Appellants' account of the acquisition of the remaining 8,000,000 shares sold to Rocky was as follows. Apart from the 2,164,200 he had bought from Lee and Fong, Ng had bought 2,609,000 privately, either in the stock market or elsewhere, and nothing more needs to be said about them: no impropriety is alleged. All the others had at one time been registered in the name of MAF Nominees along with the 2,164,200 shares Ng bought from Lee and Fong. The largest parcel, consisting of 3,226,000 shares was acquired by the Syndicate from MAF Corporation (H.K.) Ltd. ("MAF Corporation") under an Agreement dated 30th March 1977 ("the MAF Option Agreement"). Of these shares 369,000 had been bought by MAF Corporation in the stock market but had been registered in the name of MAF Nominees immediately, 7,000 had been bought by MAF Corporation in the stock market and had been registered in MAF Corporation's own name, whilst 2,150,000 had been received by MAF Corporation on 1st September 1976 from Asiatic and had been registered in MAF Corporation's own name. I understand it to be suggested that the transfer of the 2,150,000 shares from Asiatic to MAF Corporation was a gift made at the instance of Choo Kim-san shortly before he failed to answer to his recognizance, but the evidence of Mr. Cheng, the auditor, was that the shares had been held by Asiatic on behalf of MAF Corporation and were transferred after he had advised MAF Corporation that it was desirable they should be so transferred. The learned judge found that the 3,226,000 (which included the 2,150,000) had nothing to do with Choo Kim-san and said that it was not necessary for him to make any finding as to the genuineness or otherwise of the MAF Option Agreement. Mr. Yorke submits that that was the learned judge's only substantial mistake - one to the detriment of the Plaintiffs - and that it arose because Mr. Cheng had not considered the possibility that the shares which he understood to have been bought by MAF Corporation had merely been "washed in the market". It being part of the Plaintiffs' case that the MAF Option Agreement was a sham and that the circumstances surrounding it were so suspicious as to add weight to their contention that Ives, Ng and Ho were untruthful witnesses, it will be necessary to say a little more about the MAF Option Agreement as we go on to consider the judge's findings as to credibility. 13. It is not contested that the learned judge directed himself correctly as to the burden of proof, but Mr. Sherrard does suggest that he allowed himself to make findings of fact where the evidence at most raised a suspicion. Moreover, he submits that the learned judge's general assessment of Ives, Ng and Ho is invalidated by the specific reasons he gives for disbelieving them. What in effect that amounts to is the suggestion that this was a case of "give a dog a bad name ...". I do not see any escape from reviewing, as briefly as possible, each of the factors listed as supporting the general assessment.
14. It is not necessary for us to comment on the reasons given by the judge for disbelieving the evidence of Coe, for that evidence was concerned only with the subsequent transactions. Before reaching a conclusion whether the judge's decision based upon his assessment of the Syndicate members has been invalidated we must look at the nature of the transactions by which the Syndicate acquired their shares and some of the documents themselves. The judge not unreasonably thought it strange that Ng, whose only contribution to the scheme was to do what has been described as "the leg work", should as a further reward for his leg work be allowed to take for himself the profit arising from the dealing with the Lee and Fong shares, a profit of some $2,900,000. The explanation given was that the other members of the Syndicate did not want to put up the cash necessary to pay for these shares: the Fermay transaction was to be put through without cash until the final stage. Plausible though the explanation was, the judge was entitled to his doubts. 15. He had further doubts about the working draft agreement. Remarkably both sides rely upon the draft as conclusive proof of the righteousness of their cause. I have already referred to the inclusion in this draft of the first batch of Lee and Fong shares, which Ng said in his evidence was first mentioned to him on his third visit to Taiwan, and to the uniform price of 60 cents a share. Other peculiarities were the omission of the names of the parties and the provision for payment by instalments with an option to the purchaser of accelerating the instalments. Those factors were heavily in favour of the Respondents in the light of the rest of the evidence, although perhaps not quite as heavily as Mr. Yorke submits. The omission of the names does not seem to me to carry the matter any further whilst the provision for payment by instalments may, as Mr. Sherrard suggests, have been included merely as a basis for negotiation, the a in of the Syndicate being to buy the shares without having to produce the cash. The argument that payment by instalments was inconsistent with a sham because it opened the door to garnishee proceedings loses much of its force because of the option in favour of the purchaser of accelerating the instalments. It is then said by Mr. Yorke that the draft was originally designed as "window dressing to be left on the file" but, as I understand the argument, that it was later found to be a damning piece of evidence and was therefore hidden under a bushel instead of being put upon a candle-stick. That is a possibility, but one for which there is no solid foundation in the evidence. 16. The judge's decision as to the status (and, in two instances, the existence) of the Chows and Lee and Fong is an inference based upon the unlikelihood that anyone would have purchased from Choo Kim-san in the circumstances and upon the judge's view of the purpose of the subsequent transactions. His view of the purpose of the subsequent transactions was based upon their inherent nature and upon his disbelief of the parties concerned in them. Mr. Sherrard urges that the mere mention of Lee and Fong gives verisimilitude to the sales to them and to the Chows, because it would not assist Choo Kim-san to make sham sales to a plurality of purchasers. That is certainly an argument which must be thrown into the balance. 17. The crucial document is the Fermay Agreement, which must be viewed along with the rest of the Fermay transaction. The overriding contention of the Respondents is that here was a complicated transaction which was unnecessary, unsuitable for its alleged purpose and indicative of an intention to confuse anyone who might investigate it: its true purpose was to give an appearance of regularity whilst leaving the beneficial interest in the shares firmly in the hands of Choo Kim-san. When he said that the only purpose of creating Fermay was to enable the name of the registered owner to be changed and "to wrest from the Chows any semblance of beneficial interest", Mr. Ching was not, as I understand it, suggesting that the Chows had any more than a mere semblance of beneficial interest. The Appellants say that, whether or not their purpose could equally well have been achieved in some other way, the Fermay transaction was a reasonable and, indeed, normal procedure for attaining their ends. Those ends were that the Syndicate should be satisfied that the certificates tendered by the Chows were genuine and that, if the certificates were genuine, the beneficial interest should be transferred without encumbrance. If that were all, I would hold that there was insufficient evidence that the Fermay Agreement was a sham, but when one sees it in the context of the whole Fermay transaction a different picture emerges. The learned judge summed up the matter in one paragraph:
In other words the judge concluded that there was on question of trust involved: he thought that the Chows were never to receive the $8.800,000 at all. The $92,000 which they had had from Ng, being allegedly a deposit of $200,000 less fees payable on the increase of the capital of Fermay and stamp duties on the Bought and Sold Notes, was found to be the consideration they were to be given for their willingness to participate in a sham transaction. This was an inference which the judge drew from the unusual features of the transaction and from his rejection of the explanation given for those unusual features by the witnesses. 18. Although I think the learned judge was wrong in some of his reasons for disbelieving the witnesses, I find myself unable to say that the errors were such as to invalidate his finding that their explanation of the Fermay transaction was untrue. He was entitled to find that the whole transaction was a sham. It follows that the Syndicate's vendors had not divested themselves, at the time the New Rocky Agreement was entered into, of any beneficial interest they may have had. 19. That still leaves the question whether there was evidence upon which it could be found that the Chows, and Lee and Fong (if they existed), were nominees of Choo Kim-san. Mr. Sherrard concedes that he cannot here challenge the judge's finding as to the Chows. Lee and Fong did not have the legal title (which was in Asiatic or Triumphant) but they held the share certificates and instruments of transfer. They were "nominees" of Choo Kim-san to receive those documents but, as Mr. Vinelott has said, they might more accurately be described as Choo Kim-san's "agents". The absence of the Chows and Lee and Fong from the witness-box, and the non-appearance of the Chows in the proceedings, must in all the circumstances inevitably raise the greatest suspicions. It has been contended that there were insuperable difficulties about producing the evidence of all these persons before the court. It was not disputed that there were difficulties, but it is reasonably argued that if they were in truth insuperable that makes it all the more unlikely that the Chows and Lee and Fong would buy the shares for themselves and that the Chows would have handed their shares to Ng without retaining some kind of control over them. The fact that the Chows were willing to accept the entire Fermay transaction points strongly to the conclusion that they had no beneficial interest in the 15,000,000 San Imperial shares and their ignorance of their alleged vendor and of the business of San Imperial were in fact enough to raise the suspicions of Ng and Ives. The explanations for the dispelling of those suspicions were hardly convincing, but that fact of itself does not tend to prove that the Chows were nominees. Nor do I attach much weight to the fact that Ng never saw the share certificates and transfer forms together. More significant is the fact that the Chows were content to leave the shares registered in the name of Asiatic. I think the learned judge was justified in finding as he did as to them. Lee and Fong were not party to the Fermay transaction and, so far as they were concerned, there was nothing inherently suspicious about their agreement with Ng. Nevertheless the finding that the Chows were "nominees" must increase the suspicion that Lee and Fong were in a similar position. I am not prepared to say that it was not open to the learned judge to find that they also were Choo Kim-san's "nominees". 20. The Appellant in Miscellaneous Proceedings No. 540 of 1977 was originally IPC but we gave leave for Rocky and Siu King Cheung Hing Yip Co. Ltd. ("SKC") to be joined, Rocky being the contracting party and SKC being the principal for whom Rocky was said to have been acting. The case of these Appellants was based in part upon the same grounds as that of the other Appellants but in addition upon the proper construction of the New Rocky Agreement. Throughout the trial it was assumed that the effect of that Agreement was to give Rocky an option whether it would or would not buy 23,000,000 San Imperial shares from Fermay. It is now, in my view rightly, accepted on all sides that the Agreement provided for an outright sale and purchase of the shares, the option conferred upon the purchaser as to 15,000,000 of those shares by Clause 4 (b) being merely part of the "mechanics" whereby the sale was to be effected. The sale of all the shares was to be effected by the grant of an option for the purchase of the entire shareholding in Fermay (which held the 15,000,000 San Imperial shares) and by causing City Nominees Ltd. (a company which was the registered holder of the Syndicate's 8,000,000 shares and which was controlled by two partners of Messrs. Peter Mo & Co., of which Ives was a member) to convey to Rocky not less than 7,000,000 nor more than 8,000,000 of the Syndicate shares. The learned judge found that the New Rocky Agreement was not a sham. It would, therefore, have been effective to pass the beneficial interest in the shares to Rocky even though the Syndicate was a mere nominee of Choo Kim-san and it would have made no difference had the purchaser known that the Syndicate was a nominee. 21. We agreed that when we had stated our views upon the various issued argued before us we would leave counsel to suggest to us the terms of the orders which ought to be made. 22 MAR 1979
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----------------- Coram: Briggs, C.J., Huggins & Pickering, JJ.A. Date of Judgment: 22 March 1979 ----------------- JUDGMENT ----------------- Pickering, J.A.: 22. Prior to the hearing of these consolidated actions in the court below, the Plaintiff, Lee Ing Chee had obtained a judgment in the High Court against the Defendant Choo Kim San (the 1st Defendant in the court below, hereinafter referred to as C.K. San) for a liquidated sum with interest and costs. 23. Similarly, but in an action in the High Court of Kuala Lumpur in Malaysia, Lee Kon Wah, another plaintiff in the consolidated actions in the court below, had obtained judgment against C.K. San also for a liquidated sum with interest and costs. The Malaysian judgment was duly registered in Hong Kong under the provisions of the Foreign Judgments (Reciprocal Enforcement) Ordinance, Cap. 319. 24. Finally, the Plaintiff, Malaysia Borneo Finance Corporation (M) Berhad (hereinafter referred to as MBF), in another action in the High Court of Kuala Lumpur in Malaysia, had obtained a similar type of judgment against C.K. San. That judgment was likewise registered as a judgment in the High Court of Hong Kong. 25. C.K. San held, either directly or through nominees, a large number of shares in a company called San Imperial Corporation Limited (hereinafter referred to as San Imperial) and on 15th July, 1977 the Plaintiffs, Lee Ing Chee and Lee Kon Wah, in execution of their judgments, obtained charging orders nisi in respect of the following shares:
26. On the same day, the same two plaintiffs obtained garnishee orders nisi against the 4th Defendant, David Ng (hereinafter referred to as Ng), the 5th Defendant, Melville Ives (hereinafter referred to as Ives) and the 6th Defendant, Ho Chapman (hereinafter referred to as Ho) in respect of the sum of $8.8 million allegedly due and owing from Ng, Ives and Ho to the 8th Defendant in the court below, Chow Chaw-I (hereinafter referred to as Chow) and to the 9th Defendant, Hwang Shang Pai (hereinafter referred to as Hwang). Chow and Hwang are husband and wife. It was the Plaintiffs' contention that this sum of money was in fact due and owing to C.K. San by Ng, Ives and Ho (hereinafter collectively referred to as the Syndicate) as consideration for the purported sale to the Syndicate by Chow and Hwang as C.K. San's nominees of the issued share capital of Fermay whose sole asset was 15,000,000 shares in San Imperial. 27. On 7th September, 1977 MBF obtained a charging order nisi in respect of:
28. On the same day MBF also obtained a garnishee order nisi against Ng, Ives and Ho in respect of the same sum of $8.8 million and upon the same grounds. 29. On 14th September, 1977 MBF obtained another garnishee order nisi against the Syndicate in respect of the sum of $11,446,500 paid by a certain James Coe (hereinafter referred to as Coe) or his nominee, Rocky Enterprises Co. Ltd. (hereinafter referred to as Rocky) to Ng as consideration for the sale of 7,631,000 San Imperial shares by the Syndicate to Coe and/or Rocky, those shares being now registered in the name of IPC, the 10th Defendant in the court below. It is MBF's contention that this sum of money is in fact due from the Syndicate to C.K. San. The $11,446,500 represents the purchase price for the 7,631,000 shares at $1.50 per share. 30. In the consolidated actions in the court below the Plaintiffs sought to have made absolute the orders nisi or some of them. The 2nd to the 10th Defendants were joined in the proceedings by certain orders of the court but of those ten defendants only the 4th, 5th, 6th, 7th and 10th appeared and contested the Plaintiffs' claims. Coe was the 11th Defendant in one of the consolidated actions but is not an appellant herein. The 12th and 13th Defendants (6th and 7th Appellants) were added during the course of the Appeal. 31. The outcome in the court below was that the learned judge made absolute the charging order nisi in respect of the following San Imperial shares:
32. As a result the garnishee order nisi in respect of the $8.8 million was discharged. The learned judge also discharged the charging order nisi in respect of the 7,631,000 San Imperial shares registered in the name of IPC, the 10th Defendant. In addition, but in favour of MBF only, the learned judge made absolute the charging order nisi in respect of the 57,600 shares registered in the name of C.K. San. As to MBF's garnishee order nisi in respect of $11,446,500 the learned judge made absolute that part of the order nisi relating to $2,813,300, but discharged that part of the order relating to the balance of $8,633,200. I need not, at this stage, although I shall do so later, explain the basis upon which these figures of $2,813,300 and $8,633,200 were arrived at. 33. By their Notice of Appeal the 4th, 5th, 6th and 7th Defendants seek an order that the charging orders in respect of the 15,000,000 San Imperial shares registered in the name of Fermay Company Limited be discharged and that the garnishee order for $11,446,500 be discharged, not merely as to $8,633,200, but in its entirety. The 10th Defendant seeks an order that the charging orders nisi in respect of the 15,000,000 San Imperial shares to which I have referred be discharged. 34. By their Respondents' Notices of 24th and 29th April, 1978 the two Lees (who are not related) contend that so much of the judgment as adjudged that they did not at the trial continue to maintain that Ng, Ho, Ives, Fermay and IPC are also C.K. San's nominees (i.e. in addition to Chow and Hwang who were so held to be such nominees) should be varied to the extent that they (the Lees) have always and do maintain that Ng, Ho, Ives, Fermay and IPC were C.K. San's nominees and they contend that the judgment and orders in the court below should be affirmed upon that additional ground. 35. By a Cross Notice of Appeal dated 26th April, 1978 the Respondents MBF, in an ill-drafted paragraph (1), seek an order that certain shares be made absolute. Such a Motion is, of course, nonsense and I take it that it must be assumed that what is really asked for is an order that the charging order in respect of those shares - 700,000 San Imperial shares forming part of the aforesaid 7,631,000 (misstated in the paragraph as 7,641,000) such shares - be made absolute. In the alternative an order is sought that as to the garnishee order nisi in respect of $11,446,500.00, so much of the order as relates to the sum of $1,050,000.00 (being the purchase price for the aforesaid 700,000 shares allegedly paid by Coe or his nominee Rocky to Ng) be made absolute. 36. I turn to the factual background which led to the orders in the court below and to this appeal. The Lees had worked with C.K. San in Malaysia and were said to be his lieutenants. C.K. San had a controlling interest in MBF, the 3rd Plaintiff, and held well over 15,000.000 shares in San Imperial, a Hong Kong company primarily concerned in the hotel business, the issued capital of which was $48.4 million in $1 shares. C.K. San wished to borrow substantially from MBF but being a Director thereof, could not do so under Malaysian law. He therefore entered into a device with the Lees whereby the Lees borrowed the money from MBF and passed it on to him. In June 1976 C.K. San was arrested in Hong Kong on charges of fraud but before he could be tried he jumped bail and fled to Taiwan. Thereupon a number of persons started to display an interest in the shares of San Imperial; Coe was desirous of obtaining a controlling interest in the Company and approached Ho and Ives to that end. At the end of 1976 Ng, Ives and Ho (the Syndicate) held discussions as to how they might obtain something in the region of 23,000,000 shares in San Imperial to sell to Coe. Ng had previously worked with C.K. San though the two had gone their separate ways for some years and Ng had become a stockbroker. Ives is a solicitor who had previously acted sometimes for, sometimes against C.K. San whereas Ho (despite the learned judge's apparent belief to the contrary) had been in no way previously associated with C.K. San. As matters turned out Ng was the person who entered into the actual negotiations for the purchase of San Imperial shares whilst Ives handled the legal side of the matter and Ho lent to the Syndicate his general commercial supervision and some finance. According to the members of the Syndicate initial problems which they faced were as to the whereabouts of C.K. San, the legality or otherwise of buying San Imperial shares from him since he was known to be a fugitive from justice, and doubts as to whether C.K. San had not already effectively stripped the company of its assets or some of them. 37. Ng located C.K. San in Taiwan on 31st December, 1976. It was the Appellants' case that through C.K. San Ng came into contact with Chow and Hwang who were said to have purchased 15,000,000 San Imperial shares from C.K. San in November 1976 and that after protracted negotiations Ng, on 23rd March 1977, purchased those shares on behalf of the Syndicate at 60 cents per share: in the meantime Ng had also bought, on his own account, two lots totalling 2,164,200 San Imperial shares from a Mr. Lee and a Mr. Fong in Taipei at 20 cents each. These two lots of shares were to form part of the parcel to be sold to Mr. Coe. In connection with the 15,000,000 shares it was further the case of the Syndicate that for the purpose of proving the authenticity of the shares the shares were registered in the name of Fermay, a Hong Kong company incorporated by them for that purpose and as a vehicle for holding the shares. 38. Independently of these transactions, on 30th March 1977, the Syndicate entered into an agreement with Malaysian American Finance Corporation (Hong Kong) Limited (hereinafter referred to as MAF) whereby they were given the option to purchase 6,000,000 San Imperial shares at $1.50 per share. In fact, MAF had only 3,226,000 shares so this was the amount which the Syndicate purchased. The Syndicate also acquired further San Imperial shares on the local market at an average of 54 cents per share and some from private sellers at $1 per share. 39. As a result of these acquisitions the Syndicate was able to reach an agreement, on 30th April, 1977, with Coe's nominee company, Rocky for the sale to Rocky of 23,000,000 shares at $1.50 per share. Subsequently, as a consequence of interlocutory proceedings brought by the Respondents, charging or otherwise restraining C.K. San's San Imperial shares, the Agreement of 30th April, 1977 was replaced by a new agreement dated 12th May, 1977 under which Rocky was given an option to buy either the 15,000,000 shares or the share capital of Fermay the only asset of which was those 15,000,000 shares: the balance, which was to be not less than 7,000,000 nor more than 8,000,000 shares, remained an outright sale and purchase. 40. After the 8,000,000 shares were acquired by Rocky, they were registered not in Rocky's name but in the name of IPC, another nominee company controlled by Coe and, as we have seen, the 10th Defendant in the court below. It is Coe's case that the real purchaser was another of his companies called Siu King Cheung Hing Yip Co. Ltd. (hereinafter referred to as SKC). During the course of the appeal both Rocky and SKC were, as we have seen, added as Appellants. 41. It was the Defendants' case in the court below that all the above transactions were genuine and bona fide; that on the dates upon which the charging orders nisi were made C.K. San had already divested himself of his beneficial interest in his San Imperial shares and that for that reason the orders nisi should not be made absolute. 42. On the other hand it was the case for the Respondents, the Lees, that all the transactions in respect of these shares were sham transactions; that the San Imperial shares in question were and still are beneficially owned by C.K. San and that at all material times the Appellants held and continued to hold the 15,000,000 San Imperial shares as C.K. San's nominees. The learned judge in the court below appears to have formed the view that whilst it continued to be maintained that Chow and Hwang were such nominees, Mr. Ching, leading counsel for the Respondents the Lees, did not, at the end of the hearing, continue to maintain that Ng, Ho, Ives, Fermay and IPC were also C.K. San's nominees. This would appear to have been a misapprehension on the part of the learned judge and Mr. Ching tells us that at no time did he abandon that contention - an assertion which is borne out by his learned junior's note taken in the court below. 43. The Respondent MBF, on the other hand, based their case not on nomineeship but on conspiracy claiming, in the opening sub-paragraph of paragraph 7 of their Statement of Claim, that for the purpose of avoiding and defeating the execution by MBF of their Malaysian judgment and to defraud C.K. San's creditors, the Appellants and each of them together with persons unknown, from about October 1976 onwards, conspired and combined amongst themselves in Hong Kong and elsewhere to sell or cause to be sold on behalf of C.K. San the 15,000,000 shares in the name of Fermay and the 7,631,000 shares (being part of the 8,000,000 shares) now registered in the name of IPC and to obtain on behalf and for the benefit of C.K. San the proceeds thereof. I shall return to the allegation of conspiracy, the particulars of which as given in the Statement of Claim do not appear to support the principal allegation set out above. MBF's allegation of conspiracy, however, stopped short at Coe and no such allegation was made against him. As an alternative to the conspiracy claim MBF claimed that all the transactions in respect of the shares in question were not bona fide at arm's length and for full value without notice of any defect in the vendor's title. 44. The issues therefore in the court below were (1) whether on the dates that the charging orders nisi were made C.K. San had already divested himself of his beneficial interest (if any) in any or all of the San Imperial shares referred to and (2) if so, whether the purchase prices under any transactions held to be valid were in fact payable to C.K. San. It is necessary to examine in some detail what came to be known during the course of the appeal as the Fermay transaction being the process whereby that company was incorporated and became the registered holder of the 15,000,000 San Imperial shares. C.K. San was in the habit of carrying many of his shareholdings in the name of nominees either natural or juristic and one such company was Asiatic Nominees Limited as to which the evidence was that the company existed for no other purpose than to hold shares belonging beneficially to C.K. San. It was in the name of Asiatic that the 15,000,000 San Imperial shares were registered. On 8th March, 1977 Fermay was incorporated by or on behalf of the Syndicate with a capital of 1,000 $1 shares of which only two were issued to the subscribers, they being two solicitors in the firm of Peter Mo & Company in which firm Ives was a partner. At that date, Chow and Hwang were holding certificates for the 15,000,000 San Imperial shares registered in the name of Asiatic together with transfer forms already executed on behalf of Asiatic but with the name of the transferee left blank. On 23rd March, 1977 the subscribers, by writing under hand, appointed Chow and Hwang as the first directors of Fermay. At 11 a.m. on the same date at an extraordinary general meeting in Hong Kong the subscribers to Fermay voted an increase in that company's share capital to $9,000,000. Simultaneously Chow and Hwang held a board meeting in Taipei at which they approved the increase of capital and resolved that Fermay should purchase from "the shareholders" (an intended reference to themselves) the 15,000,000 San Imperial shares at 60 cents per share or $9,000,000, the purchase price to be satisfied by the issue of 8,999,998 $1 shares of Fermay fully paid up for cash at par. On the same date at a further board meeting in Taipei Chow and Hwang resolved that the members of the Syndicate (Ng, Ives and Ho) acting jointly or by any one or more of them acting singly should be authorized signatories of Fermay for the purposes of entering into any contract or signing on behalf of the company any document, receipt, contract, bought and sold note, transfer or any other document of any nature whatsoever and that the signature of any one of the Syndicate should be binding upon the company. 45. Still on the same date, 23rd March, 1977, Chow and Hwang executed what is now a very much disputed Agreement for Sale to the Syndicate. That agreement recited the incorporation of Fermay, that the share capital was $9,000,000 and that the entire share capital had been alloted to Chow and Hwang who were the beneficial holders thereof; a further recital was to the effect that the sole asset of Fermay was its holding of 15,000,000 shares of $1 each in San Imperial which shares were expressed to be free from all encumbrances. Under the Agreement Chow and Hwang sold or purported to sell to the Syndicate the whole of the issued capital of Fermay in consideration of the sum of $9,000,000 of which $200,000 was to be paid on the date of the Agreement and the balance upon completion which was expressed to take place within 90 days from the date of registration of the 15,000,000 San Imperial shares in the name of Fermay. It was further provided that Chow and Hwang should deliver to the Syndicate all the necessary share transfers duly signed by Chow and Hwang in blank together with their certificates for the Fermay shares against payment of the balance of the purchase price. Delivery of the Fermay shares and transfer to the Syndicate was expressed to be proof of payment of the balance of the purchase price and Chow and Hwang were to be estopped from denying payment after delivery. The Agreement went on to provide that upon completion of the purchase Chow and Hwang would cause a meeting of the Board of Fermay to be convened to approve the transfer of the Fermay shares to the Syndicate or its nominees and would cause the Syndicate or its nominees to be appointed directors of the company whereupon Chow and Hwang should resign from the company. At the same time Chow and Hwang each signed a blank share transfer form containing no name of vendor, of purchaser, of the name of any company and no description or number of shares; the forms were also left undated and unwitnessed. 46. At some point Chow and Hwang signed an undated and unaddressed letter of resignation from the Board of Directors of Fermay and passed a resolution appointing Ng managing director of Fermay. 47. All the documents signed by the Chows (with the possible exception of the two last-mentioned) were so signed in Taipei on 23rd March, 1977 having been taken there from Hong Kong by Ng, a member of the Syndicate. On 26th March Ng returned to Hong Kong with those documents. 48. On 28th March, 1977 the certificates for the 15,000,000 San Imperial shares, which had reached Hong Kong by a route and hand unknown, were submitted to the San Imperial Registrars together with the forms of transfer from Asiatic completed by the insertion of Fermay as transferee and Ng signed as authorized signatory for Fermay. On the same date Fermay was registered as holder of the 15,000,000 shares in the San Imperial register of shareholders and new certificates were issued to Fermay. Still on the same date bought and sold notes in respect of the purchase by Fermay of the 15,000,000 San Imperial shares from Chow and Hwang were signed by Ives on behalf of Chow and Hwang (as vendors) and again by Ives on behalf of Fermay (as purchaser). 49. The net result of all these transactions was that Fermay acquired title to the 15,000,000 shares in San Imperial whilst Chow and Hwang voluntarily relinquished to the Syndicate all control over Fermay - apparently in return for some $200,000 since by clause 4 of the Agreement for the sale to the Syndicate of the Fermay shares, Chow and Hwang were estopped from claiming the balance of the purchase price amounting to $8.8 million. It is also to be observed that of the $200,000 ostensibly received by Chow and Hwang only $92,000 remained in their possession since they had to pay the balance for stamp-duties on the bought and sold notes and a fee for increasing Fermay's capital from $2 to $9,000,000. The learned judge found that there could be no acceptable reason for Chow and Hwang to repose such complete trust in the Syndicate and for my part I consider that finding unassailable. 50. The learned judge found that the Agreement dated 23rd March, 1977 made between Chow and Hwang on the one part and the members of the Syndicate on the other was a sham and nullity. This of course was the Agreement whereby Chow and Hwang undertook to sell to the Syndicate the whole of the issued share capital of Fermay in consideration of the sum of $9,000,000. At the same time the judge found that the Plaintiffs MBF had failed to prove the conspiracy alleged by them and he made no finding that the members of the Syndicate were the nominees of C.K. San. The judge having found that Chow, Hwang, Lee and Fong were all nominees of C.K. San, his description of the Agreement of 23rd March 1977 as a "nullity" must be construed as meaning that it was inefficacious to pass anything more than the legal estate in the shares. Some of the grounds of appeal were thus predictable. So it is that the Syndicate and Fermay in their Notice of Appeal allege that, in the light of his finding that MBF had failed to prove the conspiracy alleged by them and of the fact that he made no finding that the members of the Syndicate were nominees of C.K. San, the judge erred in holding that the Agreement of 23rd March, 1977 was a sham and nullity. It was also alleged that for the same reasons the finding that C.K. San had not divested himself of his beneficial interest, if any, in the 15,000,000 shares registered in the name of Fermay could not be upheld. Conversely MBF's Cross-Notice of Appeal complained that the learned judge had failed upon his own finding of fact and/or law to hold that the conspiracy alleged was proved. The two Lees, by their Respondents' Notices, asked that the judgment be varied as to the judge's belief that they did not at the trial continue to maintain that Ng, Ho, Ives, Fermay and IPC are also C.K. San's nominees and say that the judgment and orders in the court below should be affirmed upon the additional ground that those individuals and companies were in fact such nominees. 51. Thus what is alleged in this area of the conflict is illogicality in the judgment it being urged on the one hand that if conspiracy and nominee status were not proved, then the finding that the Agreement of 23rd March, 1977 was a sham cannot be sustained and on the other hand that in view of that finding, findings of conspiracy and nominee status should inevitably have followed. I have already indicated that in my view the learned judge's cry of "Sham!" in regard to the Agreement of 23rd March, 1977 was unassailable for nobody in his senses would have done what Chow and Hwang purported to do under that Agreement, that is, to part with all control over the issued capital of Fermay in return for a nett 1% of the stated purchase price thereof. In theory both the legal estate and the beneficial interest in that capital passed to the Syndicate. In practice the legal estate did pass but it is inconceivable that had the beneficial interest reposed in the Chows they would have allowed that also to pass in return for so derogatory a consideration. There can be no doubt that the beneficial interest in the Fermay share capital remained all along in the person who had purportedly conveyed his beneficial interest in Fermay's sole asset, the 15,000,000 San Imperial shares, to Chow and Hwang, namely C.K. San. The finding that Chow and Hwang were the nominees of C.K. San was not seriously contested by Mr. Sherrard who described himself as "stuck with it" whilst maintaining that that finding did not necessarily imply either conspiracy or a further finding that the Syndicate members were also C.K. San's nominees. Nor does it of itself necessarily imply either of those matters. It is incumbent however to look at the whole of the surrounding circumstances and I will turn first to MBF's complaint that the learned judge should have found a conspiracy proved. 52. What the judge said about that was, having first found that there was no evidence against Coe of any deceit or intention to mislead on his part,
53. Unfortunately it is not entirely clear what the learned judge meant here because there is an unhappy dichotomy in paragraph 7 of the Statement of Claim which first alleges that
54. That appears to allege a clear intention to sell the beneficial interest in the shares and obtain the proceeds of sale for C.K. San. Under the "Particulars" of conspiracy however it is alleged in sub-paragraph 3(6) that by a purported agreement dated 23rd March, 1977, Chow and Hwang purportedly agreed to sell and the Syndicate agreed to buy 15,000,000 shares in San Imperial held in the name of Asiatic for the sum of $9,000,000. Clearly the reference to 15,000,000 San Imperial shares was incorrect for what was agreed to be sold was the issued capital of Fermay and the 15,000,000 shares were merely the sole asset of Fermay. That mistake apart however, it is apparent that what was being alleged in the Particulars was a sham agreement. Clearly the two allegations cannot stand together. What then did the learned judge mean when he said that MBF had not made out a case of conspiracy against the Syndicate as described in paragraph 7 of their Statement of Claim? Reading paragraph 7 as a whole it emerges that the actual allegation is one of a sham agreement (nobody has attempted to suggest that "purported" or "purportedly" refer to mere matters of form or execution) and once that is recognised it becomes apparent that the allegation is misstated in the opening paragraph of paragraph 7. Yet it is that part of paragraph 7 to which the judge must have referred when he said that MBF had not made out a case of conspiracy against the Syndicate "as described in paragraph 7 of their Statement of Claim" for he had already found the allegation contained in the Particulars, namely that the Agreement of 23rd March, 1977 was a sham, to be correct. The finding then, was of no conspiracy of the type alleged in the opening substantive paragraph of paragraph 7 and the judgment was silent as to whether there was any conspiracy of the type alleged in the Particulars. Should, indeed could, the judgment properly have remained so silent? I venture to think not and that from the finding of a sham Agreement a finding of conspiracy against the Syndicate should inevitably have followed. For what was the purpose of the sham? If the effect of the sham Agreement was, as the judge found, to leave the beneficial interest in the Fermay share capital in C.K. San whilst giving the appearance of transferring it, that could only redound to the prejudice of his creditors and indeed it is difficult to conceive of any other motive for the Agreement than the frustration of C.K. San's creditors. For the proceeds of sale, when received, could be concealed whereas a widely known holding of many shares in San Imperial, could not. But Ives at least - and his knowledge must be imputed to the Syndicate as a whole - knew of the existence of large creditors of C.K. San being aware, as is apparent from the contents of his telex to London solicitors dated 3rd January, 1977 and seeking counsel's opinion, of the charges of fraud outstanding against C.K. San and hence of the concomitant claims of those alleged to have been defrauded. It is true that C.K. San had not and still has not been tried on these charges but the fact, known to Ives, of his jumping bail and fleeing Hong Kong was in no way calculated to cast doubt on the validity of any pecuniary claims of those who alleged fraud. 55. It must follow that although the judgment was silent as to conspiracy on the part of the Syndicate in relation to paragraph 7(3)(b) of the Statement of Claim, conspiracy there was between the Syndicate members, Chow and Hwang and C.K. San in whom the beneficial ownership of the 15,000,000 San Imperial shares remained. That tacit finding of conspiracy did not extend to IPC. 56. Were the members of the Syndicate the nominees of C.K. San? The learned judge was under the impression that at the end of the hearing in the court below it was no longer maintained by the Plaintiffs, the Lees, that Ng, Ives, Ho, Fermay and IPC were C.K. San's nominees though that allegation in regard to Chow and Hwang remained. It now appears to be accepted on all sides that the allegation was never withdrawn in regard to any of the seven defendants above mentioned and that that was so is borne out by the note of Mr. Ching's junior. The questions are what would the learned judge's finding have been had he not been under the erroneous impression that the issue of the alleged nomineeship of Ng, Ives, Ho and Fermay was no longer live and would any such finding - one way or the other - have been inevitable? The learned judge had already found that the Agreement of 23rd March, 1977 was a sham; that Chow and Hwang were acting as C.K. San's nominees at all times; that the Syndicate was aware of this; and that the beneficial interest in the San Imperial shares still remained with C.K. San. In the light of those findings, and especially the last, Ng, Ives, Ho and Fermay could have had no other status except that of nominees of C.K. San. For the Syndicate held a vice-like grip upon Fermay which in turn owned the 15,000,000 San Imperial shares the equity of which still reposed in C.K. San - a fact which must have been known to the Syndicate since the judge had found that they knew that Chow and Hwang were merely the nominees of C.K. San. In agreeing to pay $9,000,000 (as to any claim for $8.8 million of which they had contrived to render unenforceable) for the share capital of a company the only asset of which was known by them to be beneficially owned by C.K. San, the Syndicate could only have been intending either to steal the 15,000,000 San Imperial shares from C.K. San - of which there is no suggestion - or acting as his nominees. In my view had the learned judge not been under the impression that it was not necessary for him to determine the issue he would have been driven inexorably, on his own findings, to the further finding that Ng, Ives, Ho and Fermay were all nominees of C.K. San holding the legal estate in Fermay, and hence in the 15,000,000 San Imperial shares, for his benefit. 57. In forming that view I have placed reliance upon the judge's finding (inter alia) that the Agreement of 23rd March, 1977 was a sham and this may be an appropriate place to deal with the suggestion that the judge was guilty of the elementary error of reaching that conclusion upon the basis that since the Syndicate were dealing with nominees whom they knew to be nominees therefore the Agreement was a sham. I acquit the learned judge of any such error. The conclusion of sham flowed inevitably from the terms of the Agreement itself under which Chow and Hwang, in consideration of $200,000, parted with the share capital of Fermay and estopped themselves from ever enforcing their claim to the balance of the purchase price of $8,800,000. Clause 4 of the document meant, on its face, that if Chow and Hwang should, by reason of their trust in the Syndicate, or even in error or for any other reason whatever hand over the share certificates with transfers signed in blank without receiving payment of their $8,800,000, the fact of delivery should be proof of payment of the $8,800,000 which payment Chow and Hwang should be estopped from denying. That reeks of sham without the necessity for any extrinsic evidence though in fact we know that on Ives' own admission the Fermay shares were held not by Chow and Hwang but by him, that the Syndicate also held blank instruments of transfer intended to be used in relation to the Fermay shares so that Chow and Hwang did not have control of their own shares in the company, their share holdings being, again on his own admission, "completely at (Ives') mercy". Although the document reeks for itself, such extrinsic evidence may, I apprehend, legitimately be looked at to ascertain the true nature of the transaction envisaged by the Agreement of 23rd March, 1977 the more so since the Lees and MBF were alleging fraud and maintaining that the object of the Agreement was unlawful as constituting a device to defraud C.K. San's creditors. Thus it is that whether the Agreement be taken at its face value or looked at in the light of the surrounding circumstances, the provision that "on completion the Vendors shall deliver to the Purchaser all the necessary transfers duly signed by the Vendors in blank together with their respective certificates for the Fermay shares against payment of the balance of the purchase price" was entirely spurious for the Agreement itself estopped them from claiming the approximately 99% balance of the purchase price if they were incautious enough to hand over the shares without simultaneously obtaining that price whilst the surrounding circumstances show that the certificates and the blank share transfers were already in the possession of the purchasers who could effect transfers of the shares to themselves at any time and then claim that the vendors were estopped in regard to the $8,800,000 the balance of the purchase price. 58. For the authenticity of the Agreement of 23rd March, 1977 Mr. Sherrard placed considerable reliance upon the New Zealand case of Paintin and Nottingham Ltd. v. Miller Gale and Winter (1) and in particular upon the following passage at 175 from the judgment of Turner J.:
59. In fact that passage does not support the Appellants' case for the rub lies in the phrase "effective to do what it purported to do, provided that what was apparently intended by the document was indeed the genuine intention of the parties." In that case all the evidence supported the view that what was apparently intended by the document was indeed the genuine intention of the parties but in the present case the evidence points inexorably in the opposite direction that is to "an appearance lent by documents or other evidentiary material, concealing the true nature of a transaction, and making it seem something other than what it really is." On the present facts that case cannot assist Mr. Sherrard. 60. It was Mr. Sherrard's further contention that the learned judge's express finding that the Agreement of 23rd March, 1977 was a sham and the implicit finding that the whole of the Fermay transaction was similarly tainted, was reached upon the basis of a false assessment of the credibility of Ng and Ives. I do not think that this was so for the judge, having expressed the view that Ng and Ives were not truthful witnesses and that their oral evidence was unreliable in almost all material particulars, went on to say that he would therefore rely mainly upon documentary or undisputed evidence. Mr. Sherrard complained that the judge did not go on to do this but I trust that I have said enough to emphasize that the content of the Agreement of 23rd March, 1977 and the history of Fermay from its incorporation pointed unequivocally to the spurious nature of the transactions between Chow and Hwang and the Syndicate. Having said that, I agree entirely that some of the illustrations put forward by the learned judge as demonstrating the lack of credibility of these two witnesses were misconceived but despite the sometimes unhappy selection of examples made by the learned judge the fact remained that the whole tenor of the lengthy evidence given by Ng and Ives was to deny what on the facts and the documents was undeniable. So that the criticism of the judge's conclusion of sham on the basis of a false assessment of the credibility of Ng and Ives is misplaced. All that happened was that some of the learned judge's illustrations were misguided and unfortunate: but he might just as easily have chosen other examples as for instance what came to be known as the blue card, a document which was withheld by the Syndicate until late in the trial and the production of which was enforced by an adjournment for that purpose. The blue card proved to be the key to the underlying reason for the entry by Ng and Ho on behalf of the Syndicate into the option agreement for the purchase of San Imperial shares from MAF. Associated with the withholding of the blue card, which withholding cloaked the existence of certain share transactions, was the programming of a computer print-out to omit those transactions. This was never explained. 61. I have already related that quite apart from the acquisition of control by the Syndicate of the 15,000,000 San Imperial shares, Ng, a member of the Syndicate, acquired on his own account some 2,164,200 such shares. These were purchased in two parcels of 514,200 and 1,650,000 shares and the vendors were said to be two Taiwanese called Lee and Fong, friends of Chow and Hwang. The purchase price in each case was 20 cents a share and the negotiations were conducted between Ng on the one side and Chow on the other although, according to Ng, he did once meet Lee and Fong in a restaurant with Chow and other friends of theirs. The two parcels were shown to have originated from the hands of Asiatic and Triumphant respectively being nominee companies of C.K. San and to have found their way into MAF. The learned judge doubted the existence of Lee and Fong and considered that if they did in fact exist they were probably C.K. San's nominees. He found that there was no or no genuine acquisition of the shares by Lee and Fong from C.K. San and that the Syndicate knew that. Mr. Sherrard made the point that if these 2,164,200 shares were in fact the property of C.K. San it would have been quite unnecessary to have dealt with them in a manner different from that which governed the sale of the 15,000,000 shares; nor, counsel argued, would it be likely, if the whole 17,164,200 had belonged to C.K. San, that some would have been sold at a price of 20 cents and the bulk of 15,000,000 at 60 cents. I concede that it is difficult to know why the 2,164,200 shares were dealt with differently from the 15,000,000 and at a different price but, as Mr. Yorke said in the course of the trial - a remark endorsed by the judge - we shall never know all that really happened and the circumstances surrounding the transaction in the 2,164,200 shares, including their source and the very shadowy existence of Lee and Fong, are such that this court would not be justified in interfering with the learned judge's finding as to the beneficial ownership of those shares. 62. The appeal of IPC must be allowed and may be dealt with quite briefly. Under the Agreement of 12th May, 1977 Ng granted Rocky (a company under the control of James Coe as is IPC) an "option" to purchase either the whole of the Fermay shares or the 15,000,000 San Imperial shares registered in the name of Fermay. The Agreement contained the following sentence
63. Under a rigorous cross-examination Ives, who had drafted the document, eventually agreed that the word "exercisable" meant that the option was not binding upon Rocky. That was an unhappy admission because it stemmed from looking at the word in isolation. At the hearing of the appeal both sides agreed that the word had to be construed as "exercised" so that Rocky was bound to take up the option and was thus in the position of an innocent third party who had acquired rights in the 15,000,000 shares of San Imperial. Upon being informed that Rocky considered itself so bound, Mr. Yorke, for MBF, abandoned his proposed cross-appeal and said that he did not resist the appeal of IPC. I am concerned not to give any impression of allowing an appeal by consent of the parties and it is not because the parties are ad idem on this matter that I concur in allowing the appeal of IPC but because upon a consideration of the whole of the Agreement of 12th May, 1977 I am satisfied that the word "exercisable" in the extract set out above can only properly be construed as conferring an obligation upon Rocky to take up the option - which is not strictly an option to buy but an obligation to buy - the "option" being to buy either the whole of the shares of Fermay or alternatively the 15,000,000 San Imperial shares registered in the name of Fermay. The alternative construction, that is that Rocky was under no obligation to purchase one or the other would make nonsense of two other provisions in the same document, namely, the grant to Rocky of a general and irrevocable proxy in respect of the 15,000,000 shares involving the right to attend all meetings of San Imperial and to vote thereat and the description of the "option" granted to Rocky as "permanent and irrevocable". It seems to me inconceivable that the Vendor under the Agreement intended to grant an option in perpetuity with no obligation to exercise it whilst in the meantime the holder of the option was to be endowed with all the voting rights in respect of the shares the subject, directly or indirectly, of the option. 64. Having said that I cannot but agree with the draftsman who said that, in retrospect, the word "exercised" would have better served the intention of the parties. However that may be I am fully satisfied that the interpretation of Rocky's obligation eventually accepted by the draftsman under cross-examination and apparently adopted by the learned judge, was incorrect. It is for this reason and not by virtue of the agreement of the parties upon the question that I would allow the appeal of IPC. 65. Some explanation is needed of the fact that although the Agreement with which I have been dealing was between Ng and Rocky, it was IPC and not Rocky which became the 10th Defendant in the court below. This arose because by the same Agreement Ng had undertaken to cause City Nominees Ltd., a company under the control of the Syndicate, to transfer to Rocky not less than 7,000,000 nor more than 8,000,000. San Imperial shares being additional to the 15,000,000, The shares eventually so transferred were registered, at Coe's request, not in the name of Rocky but in that of IPC; so that in attacking that shareholding, the Plaintiffs in the court below were interested not in Rocky but in IPC. 66. Of the 8,000,000 San Imperial shares purchased by Rocky from Ng under the Agreement of 12th May, 1977 some 7,31,000 were the subject of the charging order nisi which order the learned judge discharged. As to the garnishee order nisi in respect of $11,446,500, the price paid by Rocky for these shares, the judge discharged the order nisi to the extent of $8,633,200 as not being due from the Syndicate to C.K. San but made the order absolute as to $2,813,300. This latter figure represented the purchase price of $3,246,300 paid by Rocky for the shares allegedly acquired by Ng from Lee and Fong but excluded from that purchase price the sum of $433,000 which Ng had already paid to Chow for the shares. There was some suggestion during the course of the appeal that this deduction should not have been made but in fact the learned judge was right to make it. The $3,246,300 had been received by the Syndicate for the Lee and Fong shares the equitable interest in which the judge had found remained in C.K. San. The money was therefore due from the Syndicate to C.K. San: but the Syndicate had already paid $433,000 to Chow, who was C.K. San's nominee so that the Syndicate were entitled to set off that payment against the price which they received from Rocky for the Lee and Fong shares. The sale from Lee and Fong to the Syndicate being a spurious one in the sense that the equitable interest in the shares remained in C.K. San, there was of course no necessity for the Syndicate to have paid this advance sum of $433,000 and whether they paid it as a means of getting ready cash to C.K. San in Taiwan or for some other reason remains a mystery - but pay they did and the judge was right to have regard to that fact. The Syndicate's indebtedness to C.K. San was not $3,246,300 but $2,813,300 and that was all that could be the subject of the garnishee order absolute. 67. Mr. Waite suggested in the course of his address for his clients, the Plaintiffs in the court below, that they were not entitled to the garnishee order absolute in the sum of $2,813,300 since Rocky having paid the money over, it was no longer capable of being the subject of the garnishee order. To claim the benefit of such an order, Mr. Waite said, it would have to be held that the purchase monies in the hands of the Syndicate were impressed with a trust for C.K. San, the judgment debtor. This, as I understand it, was precisely the basis on which the judge did make his order. The monies were garnisheed not in the hands of Rocky but in those of the Syndicate and both the order nisi and the order absolute reflect this referring to monies received by Ng or alternatively by Ng, Ives and Ho, the three members of the Syndicate. Certainly the Syndicate was in no doubt as to that as is evidenced by the contents of the Notice of Appeal filed on behalf of Ng, Ives, Ho and Fermay. 68. I would dismiss the appeal of Ng, Ives, Ho and Fermay whilst allowing that of IPC. In regard to the Respondents' Notice of Lee Ing Chee and Lee Kon Wah I would affirm the judgment in the court below upon the additional ground that the learned judge ought to have held that Ng, Ives, Ho and Fermay were C.K. San's nominees. We will hear counsel as to the orders which should flow from this result. Representation: Sherrard, Q.C. & R. Tang (Peter Mark & Co.) for 1st-4th Appellants. Vinelott, Q.C. & Martin Lee (Philip K.H. Wong & Co.) for 5th-7th Appellants. Waite, Q.C., C. Ching, Q.C. & P. Fung (Deacons) for 1st and 2nd Respondents. Waite, Q.C., Yorke, Q.C., D. Chang & W. Poon (Johnson, Stokes & Master) for 3rd Respondent. (1) (1971) N.Z.L.R. 164. |