Wu Yang v. Dayuan International Development Ltd and Others
Read the full judgment text of HCMP 2143/2011 on BabelCite. This High Court CFI judgment was delivered on 4 June 2013.
1. On 27 October 2011 the Applicant issued an originating summons for inspection of various documents of the 1 st Respondent pursuant to section 152FA of the Companies Ordinance. I append to this judgment a schedule containing the body of the originating summons and the documents of which inspection is sought. The application comes about in the following circumstances.
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HCMP 2143/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 2143 OF 2011 _______________________
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_______________________ D E C I S I O N _______________________ Application 1.On 27 October 2011 the Applicant issued an originating summons for inspection of various documents of the 1st Respondent pursuant to section 152FA of the Companies Ordinance. I append to this judgment a schedule containing the body of the originating summons and the documents of which inspection is sought. The application comes about in the following circumstances. Background 2.The 1st Respondent was incorporated in Hong Kong on 29 August 2003. From incorporation until May 2006 it was called Bei Ya International Development Limited. It then changed its name to Dayuan International Development Limited ("Company"). Initially the Company had 2 shareholders, New Bright International Development Limited (''New Bright") and Beiya Group Holdings Co. Limited ("Beiya"), who held 70% and 30% of the issued shares of the Company respectively. Beiya, which is listed in the Mainland, was a nominee, says the Applicant, for him and his partner Mr Wang Yui. In October 2004 Beiya transferred its shares into the Applicant's name. The Applicant says that he holds these shares on behalf of Rockland United Financial Services Limited (“Rockland”) of which he has been a 20% shareholder since 12 October 2004. The remaining 80% are held by Luo Wei on behalf of Mr Wang. There is, however, some dispute about the Applicant's interest in the Company, which I will address later in this judgment. From 29 August 2003 until 15 April 2011 the Applicant was a director of the Company. The other 2 directors are the 2nd and 3rd Respondents, who are the shareholders of New Bright. 3.The Applicant says that he and Mr Wang have been active in business circles in the Mainland for some time and have strong and useful connections in official circles and with various large companies including China Petroleum and Chemical Corporation (''Sinopec''). He came to know the 2nd Respondent, Madam Lo, in 2002. Madam Lo and her business partner, Mr Xu Jinghua, had extensive business connections in Africa and South America. In 2003 Madam Lo and Mr Xu suggested to the Applicant and Mr Wang that they cooperate as they thought that the Applicant and Mr Wang’s business connections would be useful in exploring business opportunities in Africa. This resulted in the incorporation of the Company. The Company did not initially have any material assets. It had issued capital of HK$1,000,000. Although the shares issued to Beiya were recorded as fully paid up it is common ground that they were not in fact paid for. The Applicant says that this was in recognition of the fact that he and Mr Wang would be providing valuable connections and influence to the prospective business of the Company. 4.The 2nd Respondent disputes that she or Mr Xu told the Applicant and Mr Wang their governmental and corporate connections would be of value and facilitate realising business opportunities. She also suggests that in some, unspecified way the fact that the shares allotted to Beiya and subsequently transferred to the Applicant were never paid for demonstrates that they are nominee shareholders. However, the 2nd and 3rd Respondents do not provide any positive explanation of why shares were allotted to Beiya as fully paid, why the Applicant became a director and why they have never sought payment for the shares. Neither do they explain why they have never sought any injection of finance, whether in the form of capital or loans, from Beiya or the Applicant. 5.The Applicant goes onto explain that in 2004 he and Mr Wang introduced an Angolan company with interests in the petroleum industry, Sonangol EP ("Sonangol"), to various high ranking Chinese officials, which resulted in business cooperation between Sinopec and Sonangol. This led to the formation in September 2004 of China Sonangol International Holding Limited ("China Sonangol"), which was owned 70% and 30% respectively by the Company and Sonangol. In October of 2004 China Sonangol and Sinopec establish a joint venture company, Sonangol Sinopec International Limited ("SSI"), in which they held 45% and 55% respectively. SSI was formed, says the Applicant, for the sole purpose of forming a joint venture with British Petroleum for development in an area known as Block 18 in Angola. 6.The Applicant was a director of SSI from its incorporation between 2004 and 2010 when he was removed. He says that he attended most, if not all, of SSI's board meetings and actively participated in the decision making process. In contrast he says he had little involvement with the other business dealings of the 1stRespondent and through its subsidiaries (“Dayuan Group”). His efforts were concentrated on the Block 18 Project. Consistent with this it was agreed that the Applicant (as the Company’s shareholder) would not be responsible for any loss caused by other business activities of the Dayuan Group. 7.It follows from this arrangement, says the Applicant, that if the Block 18 Project was successful, profits generated by it were to be distributed through China Sonangol to the 1st Respondent and to the latter's shareholders. Indeed, he says, it was highly profitable. In September 2008 and August 2011 the board of SSI resolved to distribute dividends to its shareholders. China Sonangol was to receive US$186,000,000. As the Applicant owns 30% of the 1st Respondent he says he should have in turn received a significant dividend. Instead he received nothing. He also failed to receive a satisfactory explanation of how the money received by China Sonangol had been used. 8.On 4 October 2010 the Applicant issued, in his capacity as a shareholder and director of the 1st Respondent and a director of a number of other companies in the Dayuan Group, an originating summons in HCMP 1891/2010 seeking inspection of various financial records of the 1st Respondent and the other companies. On 23 October 2010 the Applicant was removed as a director of 6 of the companies and on 23 March 2011 he was removed as a director of another 2 companies. On 30 March 2011 after a contested hearing Au J ordered that the Respondents provide inspection of various documents. The order was comprehensive and included the following:
9.As I understand it the Company complied with Au J’s order. The Applicant engaged an accountant, Dr Anthony Tyen, who inspected the document and prepared an expert's report, which is dated 14 June 2011, identifying a number of problems with the accounts, which he had been given including the fact that the 1st Respondent had failed to prepare group accounts for the years 2004 to 2010. 10.On 15 June 2011 the Applicant issued a further originating summons in HCMP 1136/2011 seeking orders pursuant to sections 111(2) and (3), 122 and 124 of the Companies Ordinance for the preparation by the 1st Respondent of Group accounts for the financial years ending 2004 to 2010 and for them to be laid before the Company in annual general meeting. On 13 July 2011 the parties reached an agreement which resulted in an order being made by Chung J the substance of which was that the necessary accounts be prepared, audited and laid before the Company in annual general meeting by 30 November 2011. 11.The present application was issued before that deadline had expired. The Applicant explains in his affirmation that the reasoning behind this was that he assumed that by 27 October 2011 when the application was issued, the 1st Respondent's accountants would have obtained the financial records he was interested in inspecting in order to prepare the Company's financial statements. It remains the Applicant's position that he wishes to understand what the 1stRespondent has been doing, its financial strength and how much he should be entitled to by way of dividend. 12.There is a further matter which he says has caused him concern and that is reports in both the Economist and Caixin Century concerning the Dayuan Group's involvement in what might be loosely called malpractices in Angola. The admission and relevance of these articles is highly contentious. The Respondents suggest that they contain information provided by the Applicant to the magazines to bolster this application and demonstrate that his application is not brought in good faith. There is, however, no direct evidence of this. It is based on the assumption that only the Applicant or the Respondents knew of a number of the matters contained in the reports and as the Respondents did not provide the information, it follows that the Applicant must have done so. The Applicant vehemently denies this. It is not a matter that can be resolved in an application of this sort and in any event in my view it is largely peripheral to the relevant issues. 13.Before leaving this section of the judgment it is helpful to say something about what is not disputed by the Respondents and the tenor of their evidence. The factual evidence filed on behalf of the Respondents consists of 3 affirmations made by the 2nd Respondent. In her affirmation the 2nd Respondent suggests that the application is premature and that the Applicant should have waited until after he had been provided with the audited financial statements. It then goes on to suggest that the Applicant is not the beneficial owner of the shares in the Company registered in his name. There is very heavy handed criticism of some of the statements he has made in earlier correspondence and affirmations about ownership of the shares, a subject I return to later. The purpose of this evidence is to call into question the Applicant's veracity and purpose in bringing the Application. 14.The 2ndRespondent denies the Applicant’s explanation of how he came to become involved with the Dayuan Group and the understandings reached between the shareholders. She does not, however, offer any explanation of why she says he did come to be a 30% shareholder in the 1st Respondent. She accepts that the Block 18 Project was profitable. The thrust of her evidence in paragraph 24 of her 1st affirmation is that the money received by China Sonangol went to fund projects in Angola undertaken to build goodwill. She does not identify any particular project or explain with whom the Dayuan Group was trying to curry favour. These projects were loss making and the implication of her evidence is that funding them used up the profits made on the Block 18 Project. 15.In her 2ndaffirmation the 2ndRespondent repeats her attack on the Applicant's evidence in respect of beneficial ownership of the shares in the Company registered in her name. She does not explain who she thought at the time the shares were allotted the beneficial owner was and whether this understanding changed. She goes onto say that the shares allotted to the Applicant have never been paid for despite having been recorded as being treated as fully paid up. As I have already mentioned what the 2nd Respondent strikingly omits to explain is why the shares were recorded as fully paid and why the Applicant has never been asked to pay for them. She then suggests that the fact that the shares have not been paid for has a bearing on whether or not the Applicant or the party he acknowledges is the beneficial owner of those shares, Rockland, has a genuine interest in understanding the financial affairs of the Company. She does not explain why this might be the case. A shareholder, whether or not he had paid for shares registered as fully paid in his name, is quite understandably likely to be interested in the financial affairs of a company which at some point in time has received substantial dividends. 16.There is then a section on payments to the Applicant, the relevance of which is unclear. She then accuses the Applicant of blatantly lying to the Court when he says in paragraph 9 of his 2nd affirmation that prior to reading press articles he did not know that the Dayuan Group was involved in infrastructure and reconstruction projects in other developing countries. She does not, however, refer to any document that was sent to the Applicant referring to such projects. 17.The 2nd Respondent then addresses the problems of doing business in Angola. I do not understand it to be in dispute that operating a company in Angola in accordance with what would be considered in Hong Kong to be best business and accounting practices would be very difficult and in some respects impossible. She then goes onto suggest that the Applicant seeks the information to disrupt the business of the Dayuan Group. This she says would not be in the interests of the Mainland as the oil is exported to it. Quite how the Dayuan Group’s business would be disrupted is not explained. 18.The 2nd Respondent filed a 3rd affirmation in support of the Respondents' application to cross-examine the Applicant on matters going to his good faith. The evidence attempts to demonstrate that the Applicant must have been a source of some of the information in the articles in the Economist and Caixin Century to which I have referred already. I refused that application for the reasons explained in my decision of 27 July 2012. 19.The Respondents also obtained a report from an accounting expert, Mr Francis Wong. His report is lengthy. It addresses whether or not the audited financial statements for the years 2004 to 2010 comply with the relevant accounting standards and what if anything can be read into qualifications contained in those financial statements. Dr Tyen filed a report in reply to that of Mr Wong. It does not seem to me that these reports are particularly helpful in determining whether or not the Applicant is entitled to inspect financial records that contain more detail than would normally be included in an audited financial statement. The Issues 20.Section 152FA of the Companies Ordinance gives the Court a discretionary power to authorise a member of a specified corporation to inspect any records of the specified corporation if the Court is satisfied that the application is made in good faith and inspection is sought for a proper purpose. I will address section l52FA in more detail in the next section of this judgment. For the purposes of identifying at this stage the issues that arise for determination it is sufficient to say that the Respondents contend that:
21.Section 152FA is a recent enactment. Section 152FA(1) to (4) provide as follows:
22.I considered in some detail the elements of the right the section gives a member of a company to access its documents and how I considered it operated in practice in Wong Kar Gee Mimi v Hung Kin Sang Raymond[1]. The section has also been considered in a number of other cases, which are identified in footnote 2[2]. 23.In the present case there is no dispute that subsection (2) is satisfied. There is an issue concerning what constitutes “records of the specified corporation”. The issue concerns the extent to which section 152FA applies to the documents of a subsidiary which are in the possession of the “specified corporation”. I considered this issue in paragraphs 44 to 49 of Wong Kar Gee Mimi. For the reasons explained in those paragraphs I concluded that “records emanating from a subsidiary, which become owned by or possessed as of right by the specified corporation come within “records of the specified corporation”[3]. I rejected the argument that it extended to documents of a subsidiary, which did not fall into this category. I was taken by Mr Mok SC on behalf of the Respondents to Areva NC (Australia) Pty Ltd v Summit Resources (Australia) Pty Ltd [No 2] (2008) 26 WASC 10, which it was submitted demonstrated that “records of the specified corporation” had a more restrictive meaning and referred only to documents owned by the specified corporation. The Company argued that in paragraph 46 of Wong Kar Gee Mimi I appeared to be suggesting that temporary possession of a subsidiary’s documents by a specified corporation for a particular purpose satisfied this criterion and that this was wrong. This is to misunderstand my judgment. In my view, for the reasons explained in my earlier judgment, the records in question, by which I mean the relevant pieces of paper or electronic records[4], have to become the specified corporation’s records in the sense that the specified corporation (1) has them in its possession, (2) they form part of the records of the specified corporation’s affairs and (3) the specified corporation had a right or power to obtain them. An obvious example is a copy of an original document owned by a subsidiary which the specified corporation has obtained by virtue of its control of its subsidiary in order for it to have a complete record of the business activities and assets of the members of a group of companies, which it owns. I explain in paragraph 46 of Wong Kar Gee Mimi some other examples of how this might commonly happen. It seems to me that this result is entirely consistent with the purpose of section 152FA. 24.The Applicant argued for a wider interpretation of “records of the specified corporation” citing American authorities, in particular Noel Saito v McKesson HBOC, INC[5], in support of the proposition that if a proper purpose is demonstrated access should be given to documents in the possession, custody or control of the company. I do not consider this authority to be of any relevance or assistance. The shareholder right I am concerned with is derived from statute and the language used is clear and familiar. As I explain in paragraph 47 of Wong Kar Gee Mimi it is well established in Hong Kong that the documents of a subsidiary are not the documents of its parent company and if the legislature had intended section 152FA to be an exception to this general rule I would have expected clear language to have been used. I appreciate that this means that there will be cases in which a member is unable to obtain access to the documents most relevant to his concerns because they are the documents of an operating subsidiary and they have not become part of the specified corporation’s records, but this is a consequence of the wording of the section. 25.Sub-section 3 requires the Court to be satisfied before an order is granted that the application is made in good faith and for a proper purpose. For the reasons explained in paragraphs 11 to 16 of Wong Kar Gee Mimi in my view these are 2 distinct tests. The requirement of good faith merely requires that the applicant himself act “honestly” with a purpose that he himself believes to be proper[6]. In practice it will normally be easier to assess whether or not this requirement is satisfied after the Court has determined whether or not a “proper purpose” has been demonstrated. The more compelling the purpose the more likely it is that an application has been brought in good faith. 26.The requirement of a “proper purpose” is objective. In short the requirement is satisfied where a member has demonstrated that he seeks inspection of documents for a purpose that is reasonably related to his interests as a member. If the purpose is to protect his economic interests in a specified corporation by finding out whether there has been some impropriety, which adversely affects that interest prima facie the “proper purpose” requirement is satisfied. In my view it is not necessary for a member to demonstrate that he is attempting to protect a specific or personal right. It will, however, in practice be easier to demonstrate a proper purpose if a member is able to identify a particular right, which he credibly believes has or may have been infringed[7]. However, the “proper purpose” requirement is a question of fact and what is capable of satisfying the requirement will vary from case to case. 27.I now turn to consider whether or not the Applicant has satisfied these requirements. I will deal first with the purpose of seeking the documents. Proper purpose 28.The Applicant seeks documents, which explain why the very significant dividends that China Sonangol received from SSI, US$186,000,000, did not result in a dividend being paid by the Company to its members including the Applicant. As I have explained above the Company has a 70% interest in China Sonangol and, therefore, it might reasonably be expected to have received a sizable dividend, which it in turn would have distributed at least in part to its members. This issue goes directly to the Applicant’s economic interest in the Company. The reason for holding shares in any company is to receive a dividend or hold an appreciating asset. It is perfectly understandable for a shareholder to want to understand why a company, which so far as he can see should be highly profitable, is not distributing dividends. It does not seem to me that the Company either in its accounts or in the evidence filed in these proceedings comes close to providing a satisfactory answer to the Applicant’s concerns. In my view a “proper purpose” has been demonstrated. 29.I note that in that the Respondents did not actively argue before me that a “proper purpose” had not been demonstrated. Their attack focused on the requirement of good faith. Good faith 30.The Respondents attack the Applicant’s good faith on various grounds. First, they point to the fact that he has not said precisely what he intends to do if he is allowed the inspection he seeks. It seems to me that this is an empty criticism. What the Applicant will do will depend on what information inspection of the relevant records of the Company reveals. The Applicant is obviously concerned that those in control of the Company have caused money that should have found its way to the Company to have been improperly directed elsewhere. If documents are found that support this concern the Applicant will be able to consider taking action against the wrongdoers. 31.Secondly, the Respondents argue that the Applicant has leaked information to the Economist and Caixin Century and that this obviously constitutes bad faith and calls into questions his good faith in making this application. However, the Respondents have not produced any direct evidence of the Applicant being the source of the articles in the Economist and Caixin Century. What is said is that only a limited number of people knew the information and that it must be inferred that the Applicant was the source. The Applicant accepts that he knew of the relevant matters, but says that he was not the source of magazines’ information. 32.As I noted in the introduction to this judgment it does not seem to me that on the basis of the evidence before me I can properly infer that the Applicant leaked confidential information about the Company’s affairs to the Economist and Caixin Century. The Respondents are suggesting that the Applicant should prove a negative and if he cannot do so the Court should draw the inference that he provided the information. This seems to me to be an unsafe and unsound approach to this evidential issue. 33.In paragraph 51 of her second affirmation Ms Lo, the 2nd Respondent, says this: “I confirm that the supervising body of the magazine Caixin Century has formally applogized for disclosing information which is detrimental to the national interest of the PRC”. Caixin is a Beijing based media organisation. If what Ms Lo says is true I would have expected Caixin to have told the Respondents who was the source of their information. Ms Lo has not explained why they did not do so. I would also have expected the “formal” apology to be in writing, but no such document has been produced. 34.Thirdly, the Respondents argue that the Applicant’s motives in bringing the application cannot be genuine because he has only a token interest in the Company. I referred in the introduction to this judgment to criticisms of the Applicant’s evidence about his beneficial interest in the shares registered in his name. In my view this is an arid criticism. When the application was commenced the question of locus and interest were not contentious and a matter upon which I would have expected the Applicant and his lawyers to have focused. The undisputed fact is that he is a registered shareholder of the Company and has locus to make the application. The fact that his original description of his beneficial interest in the shares was inaccurate does not seem to me to be of itself of great import. 35.There is no reason to dispute the Applicant’s case that he has a 20% interest in Rockland, which would of itself give him a reason to make the present application. In any event it seems to me that the only sensible inference that can be drawn is that, as the Applicant says, Rockland would like answers to the questions the Applicant has raised. 36.I also see no substance in the complaint that the Applicant has never paid for the shares, which have been registered as fully paid, and that somehow he has a lesser interest in wanting to understand the financial affairs of the Company. The Respondents have provided no explanation of why the shares were issued as fully paid and why the Company has never sought payment. The only inference that can sensibly be drawn is that the Applicant’s case is broadly correct, namely, that the consideration provided for the shares was his and Mr Wang’s ability to provide commercially valuable contacts. 37.It follows that in my opinion the Applicant has demonstrated the application is made in good faith and for a proper purpose. I now turn to consider the ambit of the order that the Applicant is entitled to. What is the Applicant entitled to inspect? 38.I have already considered what constitute “records” of the Company. In this section I am concerned with what “records” the Applicant should be allowed to inspect. 39.A difficulty with this part of the application is the breadth of the application. As can be seen from the schedule to this judgment the Applicant is seeking all records of the Company and 12 subsidiary companies for the period 1 January 2008 to 31 December 2010. The immediate objection to what is sought is that schedule extends to documents of subsidiaries that might well not constitute “records’ of the Company. Mr Edward Chan SC sought to deal with this in his address by proposing that the schedule could be amended by adding the following wording to the first paragraph after “records” and similar wording to paragraphs 2 and 3: “of the 1st Respondent (including documents or records which had been passed to the 1st Respondent by the companies as listed below (the “Subsidiaries”) to the 1st Respondent) so as to comply with the obligations arising under any legislation or because the 1st Respondent required the Subsidiaries for commercial reasons and by its managerial control over the Subsidiaries.” 40.In practice “records of a specified corporation” will be documents, which form part of the Company’s own records as opposed to files containing a subsidiary’s records, which by virtue of the fact that various companies happen to share the same offices are kept in the same location as the Company’s own records. In my opinion what is necessary is language, which makes it clear that the former records are included in the order. However, I think that the language proposed by Mr Chan SC is unnecessarily complicated. 41.I think that the starting point in formulating the most appropriate language has to be the following assumptions. First, that any order that the Court makes will be complied with and to the extent that the Company or its advisers have doubts about whether a particular document or file is covered by the order they can return to Court for a determination. Secondly, that any copy document (by which I mean piece of paper or electronic data representing a document) that has been provided to the Company voluntarily by one its associated companies either pursuant to an express request or in accordance with a standard practice will probably be owned by the Company and have come to form part of its records and as a result will be covered by the order. 42.The Applicant seeks inspection of all financial and commercial records of the Company and the 12 subsidiaries referred to in paragraph 2 of the schedule for the period 1 January 2008 to 31 December 2010, alternatively he seeks an order for inspection of documents concerning particular identified transactions, which he suggests are questionable. Pursuant to the order of Au J of 30 March 2011 the Applicant and Dr Tyen have already inspected the management accounts, ledgers, journals, vouchers, statements and other accounting records of the Company for the period the Applicant is concerned with. This being the case for the order to serve any useful purpose it needs to be directed to documents that go beyond these categories and in particular any relevant documents of the subsidiaries, which have become part of the “records” of the Company. 43.I make the following order:
44.I shall make an order nisi that the 1st to 3rd Respondents pay the Applicant’s costs of the originating summons. If any party wishes to challenge this order they should write to the Court informing it of this within 7 clear days of handing down of the judgment.
Mr Edward Chan SC and Mr Frederick Chan, instructed by CWL Partners, for the applicant Mr Johnny Mok SC, Mr William Wong and Mr Jason Yu, instructed by Li & Partners, for the 1st to 3rd respondents
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