YAU WAH HING AND ANOTHER v. YUEN SO YING, the Executrix of the Estate of YUEN KAY MING, deceased

HCA 4252/2003

[2026] HKCFI 1410

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 4252 OF 2003

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DECISION ON COSTS

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A.  Introduction

1.  On 16 January 2026, this Court handed down a decision [2025] HKCFI 339 (“Decision”).[1] I shall not repeat what is set out in the Decision.  Suffice it for present purpose to recap as follows:

(1)  As held by the Court of Appeal, the proper remedy for the Plaintiffs was the taking of the partnership account upon the dissolution of the Partnership. However, the Judge made no finding on the date of the dissolution of the Partnership: CA Judgment §§61-62.

(2)  Subsequent to the CA Judgment, the parties reached agreement that the Partnership was dissolved on 24 February 2010 and that the Plaintiffs were entitled to 18.5% interest in the Partnership at the time of the dissolution.

(3)  For the purpose of taking the partnership account, it was agreed between the parties that the task of the Court was to assess the market value of the Licence (as of 24 February 2010)  so that its value could be distributed to the Plaintiffs. It was on such basis that the parties adduced expert evidence on valuation. In the Decision, I found that the market value of the Plaintiff’s interest in the Licence was of HK$4,185,264 (as of 24 February 2010).

2.  In the Decision, I further direct the parties to agree on the terms of the Order and the question of costs.  As the parties failed to reach agreement on terms of the Order and the costs, this hearing was fixed for the parties to make submission.

3.  At this hearing, Ms Wong appears for the Plaintiffs and the Defendant (acting in person)  is absent.

4.  On the terms of the Order, the Plaintiffs ask for payment of the value of their interest with simple interest at 1% above the prevailing HSBC prime lending rate from 24 February 2010 up to the date of judgment; and thereafter at judgment rate until payment.  The Plaintiffs also seek against the Defendant costs of the action (including any costs reserved), together with certificate for two counsel.

B.  Discussion

B1.   Interest

5.  On interest, Ms Wong submitted that pre-judgment interest should run from the date of the dissolution, i.e. 24 February 2010, subject only to the question as to whether any interest should be disallowed because of delay.  I have some difficulties with this submission:-

(1)  Ms Wong accepts that the remedy that the Plaintiffs seek is one for the taking of partnership account upon the dissolution of the partnership.

(2)  On this basis, I draw her attention to Lindley and Banks on Partnership (21^st ed), at §§20-03; 20-47 to 20-51; 20-60 and 20-61, in which it is stated that the general position is that interest is not payable in the case of dissolution and the taking of accounts, save in the case of loans and advances made by the partner. Those principles are also reflected in section 24 of the Partnership Act 1890, viz., the English counterpart of section 44 of the Partnership Ordinance (Cap 6).

6.  Having considered those passages from Lindley and Banks (above), Ms Wong confirms that the Plaintiffs would no longer claim for pre-judgment interest. In the premises, it is not necessary for me to address the question as to whether there was any delay on the part of the Plaintiffs in prosecuting the action; and whether any interest should be disallowed because of any such delay.

7.  The Plaintiffs only seek post-judgment interest at the judgment date from the date of the judgment.  This is not controversial and I so order.

B2.   Costs

8.  On the question of costs, Ms Wong asks for costs of the action, including all the costs reserved together with the costs of today, to be paid by the Defendant to the Plaintiffs.  I see no reason why costs should not follow the event.  Given that there are some complexities in the handling of the expert evidence, I am prepared to grant in favour of the Plaintiff a certificate for two counsel.

C.  Disposition

9.  In conclusion, it is ordered that:-

(1)  Judgment be entered in favour of the Plaintiffs against the Defendant for HK$4,185,264 to be paid forthwith, together with interest thereon at the judgment rate from the date of judgment until payment; and

(2)  Costs of the action, including all the costs reserved and the costs of today, be paid by the Defendant to the Plaintiffs with a certificate for two counsel, to be taxed if not agreed, on party and party basis.

Ms Michelle L.Y. Wong, instructed by Messrs. Christine FL Ip & Young, for the Plaintiffs

The Defendant acting in person, absent

HCA 4252/2003

[2026] HKCFI 339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 4252 OF 2003

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D E C I S I O N

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A.  Introduction

1.  The disputes in the present case arose between the Plaintiffs and Mr Yuen May Ming, who were partners running a public light bus business since 1984.

2.  In this Action, the Plaintiffs claimed against the Defendant for, inter alia, a declaration that the Plaintiffs and the Defendant were in partnership (“Partnership”) in running a public light bus business under a Passenger Service Licence No. 1260C (“Licence”) grantedv to the Defendant on 25 August 1984. The Plaintiffs also claimed against the Defendant for, inter alia, distribution of the assets and profits of the Partnership.

3.  The trial on liability took place before Yam J on various dates from April to June 2011. On 3 February 2012, Yam J handed down judgment (the “CFI Judgment”), holding that:-

(1)  The 1^st Plaintiff (“Yau”) in the name of the 2^nd Plaintiff (“Winlite”) and Yuen Kay Ming had been partners since 1984 in respect of the public light bus business.

(2)  The Licence for the running of the public light bus business was held by the Defendant on constructive trust for the Partnership.

(3)  Since 17 November 2023, Yau (through Winlite) and the Defendant remained as the two partners to the Partnership; and that Yau was ousted from the Partnership.

4.  Yam J made an Order in Chinese granting, inter alia, the declaration sought together with an order for payment of damages to be assessed: see CFI Judgment §88; CA Judgment[1] §§4-6.

5.  The Defendant appealed against the CFI Judgment. On 7 March 2013, the Court of Appeal handed down judgment (“CA Judgment”):-

(1)  The Court of Appeal dismissed the main points of the Defendant’s appeal and affirmed the factual findings made by Yam J that the Partnership started in about 1984 and subsisted after 1992 despite a change of the business model.

(2)  The Defendant’s appeal was allowed in part, in that §§3 and 4 of Yam J’s Order written in Chinese (which related to the new licence No. 18633C granted in about January 2011) was set aside by the Court of Appeal on the basis that such new licence never forms of the Plaintiffs’ pleaded case: CA Judgment §§20, 47, 59-64.

(3)  The Court of Appeal further directed the parties to the Court of First Instance for directions on the second part of the trial in connection with the question of remedies: CA Judgment §64.

6.  For present purposes, it is pertinent to note that, in the CA Judgment, it was held that the exclusive right under the Licence to operate the public light bus service was something of value (at §38); and that the exclusive right under the Licence was a partnership asset (at §39).

7.  After the CA Judgment, the parties had filed pleadings on the question of remedies.

8.  Pursuant to a Consent Order dated 4 July 2019, it was agreed between the parties, inter alia, that the Partnership was dissolved on 24 February 2010; and that the Plaintiffs were entitled to 18.5% interest in the Partnership at the time of its dissolution.

9.  At this hearing, the parties ask the Court to assess the value of the Plaintiffs’ interest in the Licence at the time of the dissolution of the Partnership (i.e. 24 February 2010), so that its value could be distributed to the Plaintiffs. At this hearing, Ms Queenie W.S. Ng and Ms Michelle L.Y. Wong appear for the Plaintiffs; whereas Ms Chung appears for the Defendant.

B.  Factual background

10.  The factual background has already been set out in the CFI Judgment and the CA Judgment, which I shall not repeat. For present purposes, the salient facts may be summarized as follows.

11.  Since about 1984, Yau, the Defendant and some others had been partners in a public light bus business. In 1984, the Licence was applied by the Defendant on behalf of a partnership business called Hung Kei Maxicab Company. They successfully tendered the Licence for operating Route 65, running between Fo Tan KCR Station and Kau Tao / A Kung Kok: CFI Judgment §§4-8; CA Judgment §9.

12.  Over the years, Route 65 was later sub-divided into other routes, namely, Nos. 65A, 65K, 65S, 66K, 67A and 67K in Shatin: CFI Judgment §65. Under the Licence, the Partnership enjoyed the monopoly of operating those routes.

13.  Since about June 1992, there were changes of the business model to from 公司制 into 分帳制 (or later known as self-ownership scheme (車主制): CFI Judgment §§30, 33; CA Judgment §14. Each of the minibus owners shall be responsible for their own profit and loss and sharing their own profit sharing with their drivers. Despite such changes, it was held that the Partnership continued. It was against this background that Winlite was established by Yau. As found by Yam J, Yau had been enjoying a long-term right to operate the minibus business on Route 65; and that the Defendant shall not obstruct the operations by any reason.

14.  From 1987 to 1992, some partners withdrew from the Partnership with their shares or shares and minibuses acquired by the others.

15.  Since around 1992, Yau (in the name of Winlite) and the Defendant had been partners to the Partnership. As in 1992, Yau in the name of Winlite had 4 minibuses running Route 65 and 3 shares in the Partnership.

16.  In about 1993, Winlite had 5 minibuses running Route 65.

17.  During the period between 1993 and 1999, Yuen Kay Ming wrongfully added 10 minibuses to the operation of Route 65, thus diluting the revenue of the Plaintiffs and other partners.

18.  Since around 1997, the Defendant made a series of attempts to exclude Yau and the other partners from the business of Route 65: CFI Judgment §57. Amongst other things, the Defendant had banned the interchange practice of the Plaintiffs’ minibuses at the terminal for servicing passengers heading to Fo Tan, causing a drop in the Plaintiffs’ revenue.

19.  In 1999, the Defendant also withheld the renewed PLB licences and entry permits for restricted areas and that eventually led to the temporary suspension of the operation of the Plaintiffs’ minibuses for nearly one month.

20.  On 30 September 1999, the Defendant asked Tsang Yan (“Tsang”), another partner of the Partnership, to write and sign on a document to the effect that Tsang had left Route 65 voluntarily. It was held that that document did not reflect the truth: CFI Judgment §62.

21.  From October 2003 to August 2009, the Plaintiffs’ minibuses were completely excluded from Routes 66K and 67K; and could only operate the sub-route 65A. The more lucrative routes of 66K and 67K were solely operated by the Defendant’s minibuses: CFI Judgment §65.

22.  It is now agreed between the parties that the Partnership was terminated on 24 February 2010. In other words, the Partnership had been operating for about 26 years since 1984.

23.  As at 24 February 2010, there were 27 minibuses operating under the Licence, out of which 5 were operated by the Plaintiffs and 22 minibuses were operated by Yuen Kay Ming. On this basis, the Plaintiffs were entitled to a 18.5% interest in the Partnership at the time of the dissolution.

24.  After the Plaintiffs’ withdrawal from the Partnership, Yuen ay Ming continued the operation of the same routes under the Licence. In July 2010, he applied for the transfer of the Licence to Hung Kei Maxicab Company Ltd (“HKMCL”), a company formed for the operation of the same route as that permitted under the Licence, with Yuen Kay Ming as his son being the shareholders. In January 2011, the Commissioner approved the transfer with effect from 1 February 2011; and a new licence number was given (i.e. No. 18633C, for the operation of the same route as that permitted under the Licence): CA Judgment §§17-19.

C.  Expert evidence

25.  In 2013, the parties had filed pleadings on the remedies. In July 2019, a consent order was made, declaring that the Partnership was dissolved on 24 February 2010 and that the Plaintiffs were entitled to 18.5% in the Partnership at the time of dissolution. It was agreed that there be an inquiry and determination as to how the assets of the Partnership should be distributed.

26.  On 30 March 2020, pursuant to the parties’ joint application, leave was granted for the parties to adduce expert evidence on the value of the Licence as at the date of dissolution (i.e. 24 February 2010).

27.  In this trial, the Plaintiffs rely upon the expert evidence of Ms Law Kok Yu Stella (“Ms Law”). Ms Law obtained a Bachelor of Engineering (Software Engineering) from the University of Hong Kong (“HKU”) in 2003; and a Master of Science in Finance (Financial Analysis) from the Hong Kong University of Science and Technology in 2007. She is an accredited senior appraiser of the American Society of Appraisers and a member of the Royal Institute of Chartered Surveyors (valuation of Businesses and Intangible Assets pathway). She has over 20 years’ experience in business valuation and financial advisory services.

28.  The Defendant’s expert is Mr Lee Yan Chai Haydn (“Mr Lee”). He graduated from the HKU with a Bachelor of Science in 2004. He is a chartered financial analyst, a registered business valuer and a member of the Australasian Institute of Mining and Metallurgy. He has over 10 years’ experience in business valuation.

29.  The parties have no challenge against their respective expertise. For the purpose of this hearing, the parties have filed the following expert reports:-

(1)  Ms Law’s report dated 14 September 2020 for the Plaintiffs;

(2)  Mr Lee’s report dated 11 September 2020 filed for the Defendant; and

(3)  Joint report dated 31 July 2023.

30.  On the assessment of expert evidence, the relevant principles are well-established. The Courts have repeatedly emphasized that experts owe their overriding duty to the Court; and that they are expected to act independently. The Plaintiffs referred me to Chinachem Charitable Foundation Ltd v. Chan Chun Chuen (unrep), HCAP 8/2007, 2 February 2010, at §§484-493, in which Lam J (as Lam PJ then was) set out helpful guidance on the duties of an expert and what an expert is expected.

31.  In Echelles Riffaud SA v. Secretary for Justice[2024] HKCFI 1994, Madam Justice Au-Yeung said this at §§107-108:-

“107. When considering the credibility of an expert and the weight to be attached to his opinion, the Court pays attention to empirical data, calculations or facts that he relies on, his methodology and any change in opinion or provision of new opinion since his first report was filed.

108. … An expert witness could give evidence as to facts, interpret the data, express his / her opinion on those facts or data, and rely on his experience in his discipline. He/she may draw on literature in his discipline. The Court would decide what weight should be attached to his/her opinion. However, an expert witness could not stop at saying “I have a lot of experience. This is my opinion.” When challenged as to his opinion, there were 2 minimum sources on which he should justify himself: (1) his first hand evidence in past transactions; and (ii) information or publication in his discipline.”

D.  Gist of the Plaintiffs’ expert evidence

32.  Ms Law’s valuation may be summarized as follows:-

(1)  Ms Law identifies the 3 generally accepted valuation approach, namely, the cost approach, the market approach and the income approach (“Income Approach”).

(2)  Amongst the 3 approaches, Ms Law is of the view that the Income Approach should be adopted. In very simple terms, under the Income Approach, the value of an asset is determined by reference to the value of the income, cash flow or cost savings generated by the asset.

(3)  Ms Law identifies the Plaintiffs’ 18.5% interest in the Licence as the subject matter of the valuation. It is significant to note that she derives the market value of the Licence from the value of the economic benefit that can be generated from Winlite through ongoing business operation.

(4)  Ms Law concludes that it is appropriate to equate the market value of the Licence to the present value of the economic benefit earned by Winlite.

(5)  For the valuation of the economic benefit earned by Winlite, Ms Law adopted the Gordon Growth Model (“GGM”). According to Ms Law, GGM is appropriate to be applied for business, when the company’s business model is stable (with no significant changes in its operations); that the company grows at a constant rate and that the company has stable financial leverage.

(6)  The formula for calculating the market value of the business under GGM is MV = FCF / (r – g).[2]

33.  Ms Law adopts the GGM for the purpose of valuation, as Winlite has a stable business model, constant growth rate and stable financial leverage. In particular, she takes into account the fact that the Licence created a monopoly for Winlite to engage in the business of providing minibus services over the Route.

34.  Adopting the GGM, Ms Law’s valuation may be summarized as follows:-

(1)  On the annual free cashflow of Winlite, after taking into account the data from 2006 to 2010, she adopted HK$437,843 as the free cashflow of Winlite’s business.

(2)  As the formula suggests, there are 3 parameters in GGM. Ms Law adopts the following figures:-

(a)  FCF = HK$437,843

(b)  R = she adopts the weighted average cost of capital (“WACC”), which is the benchmark discount rate in valuing the equity interest of the Business.

(3)  To determine the appropriate WACC, Ms Law conducted a search of comparable companies. In selecting the comparable, she bore in mind that the comparable should be engaged in the minibus operation industry; and should conduct its operation in Hong Kong. She identified AMS Public Transport Holdings Ltd (stock code 0077) (“AMS”) as a comparable, which is an investment holding company with its shares listed in Hong Kong, with the companies in the group engaging in the provision of franchised public light bus transaction and residents’ bus services. According to the database of Reuters, since the initial public offering of its shares, AMS’s average WACC is 4.0%. This is adopted in this case as a base discount rate for the Subject Business.

(4)  Given AMS is a listed company and that Winlite is a private ownership company, Ms Law made a discount of 25% to reflect the lack of marketability.

(5)  The last parameter is the perpetual growth rate that relates to the inflation of car fare and is determined with reference to the consumer price index published by the HKSAR Government. Ms Law adopts 2.2%, being the five-year average figure of the historical CPI from 2006 to 2010. There is no dispute between the parties on this figure.

35.  Adopting the GGM Approach, Ms Law concludes that the market value of 18.5% interest in the Licence as at the date of valuation was HK$18,243,458. This may be summarized as follows:-

	Subject	Amount	Formula
A	Assessed annual free cashflow	437,843	-
B	Discount rate	4.0%	-
C	Perpetual growth rate	2.2%[3]	-
D	Lack of marketability discount	25%	-
E	Value of Winlite’s business	18,243,458	E = A/(B-C)*(1-D)

36.  On the question of assessed annual free cashflow, there was no specific challenge to the calculation of the figure of HK$437,843 adopted by Ms Law. Instead, the dispute between the experts is a more fundamental one, namely, whether Winlite’s business was making profits. Further, the experts have disputes on adopting 4.0% as the discount rate, as Mr Lee’s opinion is that the 4.0% adopted by Ms Law is unreasonably low. In addition, Mr Lee is also of the view that the 25% discount for lack of marketability adopted by Ms Law is not sufficient, when Ms Law does not take into account other matters such as size premium and firm specific premium.

37.  On the other hand, whilst Mr Lee agrees to adopt the Income Approach, he is of the opinion that the multi-period excess earnings method (“MPEEM”) should be adopted for the valuation of the Licence. Should the MPEEM be adopted, Ms Law values the 18.5% interest in the Licence as HK$11,707,987 on the date of valuation. However, she does not set out in detail the calculation of this alternative valuation in the joint report.

E.  Gist of Mr Lee’s valuation

38.  It is the Defendant’s case that Ms Law’s valuation should not be adopted, when she values Winlite as a company rather than the Licence.

39.  Whilst Mr Lee agrees that the Income Approach should be adopted, he uses what is described as the MPEEM for the purpose of determining the market value of the Licence as an intangible asset. According to Mr Lee:-

(1)  Under the MPEEM, the value of an intangible asset is determined as the present value of the cash flows attributable to the subject intangible asset after excluding the proportion of the cash flows that are attributable to the contributory assets (i.e. those other assets required to generate the cash flows).

(2)  The MPEEM involves allocating the expected cash flows to the smallest business or group of assets of the entity that includes all the income derivable from the subject intangible asset.

(3)  From the forecast of cash flows, a deduction is made in respect of the share of the cash flows attributable to contributory tangible, intangible and financial assets. This is done by calculating appropriate charges or economic rents for the contributory assets and deducting these charges from the cash flows.

40.  Specifically, Mr Lee sets out in his report the specific steps in the MPEEM in calculating the equitable value of the Licence as follows:-

(1)  First, he has to project the earnings before interest and amortization (“EBIA”) of the business under the Licence for 2 forecast periods, namely, from 25 February 2010 to 24 February 2011; and from 25 February 2011 to 24 February 2012.

(2)  Second, he has to project the contributory asset charges (“CAC”) for working capital, office equipment and the public light bus licences (for each public light bus) for the aforesaid 2 forecast periods.

(3)  Third, one has to subtract the CAC from the EBIA for the two forecast periods to calculate the residual cash flows for the two forecast periods.

(4)  Fourth, one has to discount the residual cash flows by WACC or discount rate to calculate the discounted residual cash flows for the two forecast periods.

(5)  Finally, one has to sum up the discounted residual cash flows for the two forecast periods to calculate the equitable value of the Licence.

41.  For the purpose of considering the differences in their opinions, it is significant to note a number of points:-

(1)  First, he projects the EBIA as HK$2,174,056 (for the period from 25 February 2020 to 24 February 2021); and the negative sum of HK$2,030,063 (for the period from 25 February 2011 to 24 February 2012). Nonetheless, save that it is fairly clear that the negative value is reached because he has taken into account the significant severance payment (see below), he has not set out the basis on which his projection was made.

(2)  Second, Mr Lee takes into account the severance payment HK$730,590 from the financial statements of Winlite for the year ended 31 March 2010. He then projects car drivers’ severance payment to be HK$152,021 per public light bus (for the period from 25 February 2011 to 24 February 2012).

(3)  Third, as such, Mr Lee is of the opinion that the discounted residual cash flows would be negative, such that the valuation of the Licence would also be negative. In the course of his evidence, Mr Lee agreed that the main cause for the negative value of the Licence was due to the fact that he has taken into account the severance payment.

(4)  Fourth, proceeding on the basis that the discounted residual cash flow would be negative, Mr Lee is of the opinion that the economic life of the Licence would only last for 2 years from the date of valuation (i.e. until February 2012).

(5)  Fifth, in his report, Mr Lee also projects the finance costs in terms of interest on bank loans to finance the hire purchase of 27 public light bus licences. He projects finance costs as HK$4,042,781 (for the period from 25 February 2010 to 24 February 2011) and HK$4,123,636 (for the period from 25 February 2011 to 24 Feb 2012). In the course of his evidence, Mr Lee confirmed that he made reference to a hire-purchase agreement to ascertain the optimal capital structure for his calculation of the CAC in his financial model. However, Mr Lee also accepted in cross-examination that Winlite did not enter into any hire-purchase agreement at the date of valuation.

(6)  Nonetheless, Ms Chung in her written closing submissions clarified that, whilst Mr Lee made the projection of finance costs for 27 public light buses, he did not make any such deduction from his projections.

42.  Adopting the MPEEM, Mr Lee is of the opinion that, as at the valuation date, the Licence was of a negative value of HK$4,339,212. Mr Lee’s valuation may be summarized as follows:-

Subject	Amount	Formula
Discount rate	13.32%	A
Time from valuation date for the forecast period from 25 February 2010 to 24 February 2021	0.5 year	B
Time from valuation date for the forecast period from 25 February 2011 to 24 February 2022	1 year	C
Residual cash flows for the forecast period from 25 February 2010 to 24 February 2021	- 11,167,612	D
Discount factor for the forecast period from 25 February 2010 to 24 February 2021	0.939	E = (1+A) ^ (-B)
Discounted residual cash flows for the forecast period from 25 February 2010 to 24 February 2021	-10,490,867	F=D*E
Residual cash flows for the forecast period from 25 February 2011 to 24 February 2022	-15,638,564	G
Discount factor for the forecast period from 25 February 2011 to 24 February 2022	0.829	H=(1+A)^(-C)
Discounted residual cash flows for the forecast period from 25 February 2011 to 24 February 2022	-12,964,330	I=G*H
Value of PSL 1260C	-23,455,198	J=F+I
Value of 18.5% interest in PSL 1260C	- 4,339,212	K=J*18.5%

43.  Alternatively, if GGM is to be adopted, Mr Lee’s valuation is that the Licence would be of a negative value of HK$31,055,074.

F.  Issues between the experts

44.  It is common ground between the experts that the Income Approach should be adopted for the purpose of valuing the Licence.

45.  Under the Income Approach, one considers the income that an asset will generate over its useful life and indicates value through a capitalisation process. Capitalisation involves the conversion of income into a capital sum through the application of an appropriate discount rate.

46.  Nonetheless, apart from the agreement on the Income Approach, there is little common ground between the experts. The major differences between the parties’ experts, as addressed in the Joint Report, may be summarized as follows:-

(1)  First, the subject matter of the valuation. It is the Defendant’s case that Ms Law valued Winlite as a company, as opposed to the Licence. This is denied by Ms Law, who maintained that she assessed the market value of the Licence by reference to the economic benefits that can be generated  from Winlite’s business operation.

(2)  Second, the valuation methodology: whether the Court should adopt the GGM or the MPEEM. Under the valuation methodology, the experts also disagree as to whether Winlite was making stable profits at the relevant period.

(3)  Third, the basis of valuation: in valuing the Plaintiffs’ 18.5% interest in the Licence, whether the Court should adopt the market value (as suggested by Ms Law) or its equitable value (as suggested by Mr Lee).

(4)  Fourth, whether the severance payment should be taken into account in the valuation / projection.

(5)  Fifth, the question of economic life of the Licence: in the valuation, whether the Licence should be deemed to be perpetual (as suggested by Ms Law); or whether one should impose a reasonable economic life of 2 years (as suggested by Mr Lee).

(6)  Sixth, whether contributory asset charges (“CAC”) on a public minibus licence should be applied (as suggested by Mr Lee). The question of CAC does not arise in Ms Law’s valuation. I shall elaborate further on the concept of CAC below.

(7)  Finally, the question of discount rate: whether it should be 4.0% adopted by Ms Law; or the 13.3% adopted by Mr Lee.

47.  According to Ms Ng, counsel for the Plaintiffs, amongst the aforesaid issues, the more substantial disputes relate to (1) the subject matter of valuation; (2) the methodology and (3) whether the Licence only had an economic life of 2 years. Ms Chung agrees and adds that (7) the discount rate is also a major difference between the experts.

G.  Discussion: some general observations

48.  At the outset, I set out some of the general observations on the respective expert witnesses.

49.  First, Ms Chung refers me to Ms Law’s curriculum vitae, which reads, inter alia, as follows:-

“… Throughout her career, Stella has honed her skills in utilizing cutting-edge valuation techniques, such as discounted cash flow analysis, market comparables, and asset-based approaches, to arrive at defensible conclusions. Her work has been crucial in helping clients navigate complex financial situations and achieve favourable outcomes in court proceedings. She has provided testimony in numerous high-profile cases, where her ability to effectively communicate complex financial concepts and defend her opinions under cross-examination has been widely recognized.

Her extensive experience in the field, combined with her commitment to excellence, has earned her a reputation as a highly sought-after expert witness in court proceedings.”

50.  Ms Chung seeks to discredit Ms Law’s credibility, when Ms Law admitted in cross-examination that, contrary to what is set out in her curriculum vitae, as a matter of fact she had not testified in court before. In re-examination, Ms Law explained that she had misused the word “cross-examination”, when she only had in mind the challenge and questions from the other side. Ms Chung argues that Ms Law exaggerated, if not misled, her court experience as an expert witness.

51.  I accept that there is some force in those criticisms made by Ms Chung against Ms Law. Nonetheless, there is no allegation or evidence to suggest that Ms Law was deliberate. I shall bear in mind those criticisms in considering the opinions adduced by Ms Law. Having said that, it is ultimately the valuation (in particular the parameters and assumptions adopted; and the reasoning and explanations given) that would be crucial in the assessment and evaluation of her opinions.

52.  On the other hand, insofar as Mr Lee’s valuation is concerned, it is pertinent to note that, according to Mr Lee, the Licence was of a very substantial negative value as at the date of valuation (i.e. to the tune of HK$4million to HK$31 million), no matter whether one adopts the GGM or MPEEM. On the face of it, Mr Lee’s valuation does not accord with the common and commercial sense and reality, when the Partnership had been operating the minibus business under the Licence for 26 years since 1984. Furthermore, in January 2010, the Defendant even applied for the transfer of the Licence to HKMCL (i.e. a limited company which consisted of the Defendant and his son as the shareholders). The Court of Appeal also held that the Licence was of some value. Had the Partnership’s minibus business under the Licence been operated at a loss, one immediately queries why the parties would have been carrying on the business for more than 26 years; and why the Defendant would have procured the transfer of the Licence to HKMCL.

53.  There are other aspects which suggest that Mr Lee’s expert evidence is unsatisfactory. For instance, as rightly submitted by Ms Ng, during cross-examination, when he compared the minibus lines in Shatin against those in Aberdeen, Mr Lee tried to back up his views by relying upon certain personal feeling or impression which was not supported by any empirical data.

54.  As such, I remind myself to scrutinize carefully the assumptions Mr Lee adopts and the valuation he makes.

H.  Disputed issue: the subject matter of the valuation

55.  As agreed by the parties, the major issue for determination is the value of the Licence as at the date of valuation. Ms Chung challenges Ms Law’s valuation, arguing that she only conducted her valuation of Winlite as a company and failed to value the Licence. In support of this argument, both Mr Lee and Ms Chung refer me to various parts of Ms Law’s report in which she made reference to the valuation of the “business of Winlite”.

56.  This is denied by Ms Law. In her report, whilst there are references to the valuation of the business, Ms Law makes it clear that “her instruction was to value the Plaintiff’s interest in the Licence PSL 1260C”. She then explains that she conducts the valuation of the Licence through considering the economic benefits generated from operating the business in question. Her opinions are prepared on the basis that the market value of the Licence would be reflected from the present value of the economic benefit earned by Winlite.

57.  Having considered the evidence and the submissions, I find that Ms Law’s valuation is made against the value of the Licence, as opposed to the equity interest in Winlite. Whilst Mr Lee picked up various references in her report to suggest that the valuation was made against Winlite as a company, Ms Law had made it clear that the subject-matter of the valuation was the Licence; and that she valued the economic benefits brought by the Licence by reference to the income generated for the business of Winlite.

58.  Further, it is significant to note that Ms Law did not value the equity interest of Winlite, when she has not taken into account the value of the other assets of Winlite, such as the 5 public light buses and the 5 corresponding public light bus licences owned by Winlite. As such, I am satisfied that Ms Law is not valuing the equity interest of Winlite; and that she only conducts the valuation of the Plaintiffs’ interest in the Licence through valuing the economic benefits derived from it.

59.  A separate and yet related question concerns the value of the public light buses. In her closing submissions, Ms Chung criticizes Ms Law for failing to take into account the values of the 5 public light buses in her valuation of the Licence, when the parties could only bid the Licence in 1984 because of the vehicles contributed by the partners. I have no hesitation in rejection such argument. Here, the exercise is to value the Licence. The valuation was made by reference to the economic benefits derived from the Licence (which is itself a distinct intangible asset), as opposed to the public light buses, which are separate tangible assets. The public light buses should not affect the intrinsic value of the Licence.

I.  Discussion on the methodology: whether GGM or MPEEM should be adopted

60.  According to Ms Law, the GGM is applicable in cases where the business model is stable (i.e. with no significant changes in the operations); the company grows at a constant, unchanging rate and that the company has stable financial leverage. This is not disputed by Mr Lee.

61.  Ms Law is of the view that the GGM is applicable in the present case, when the Partnership has been running the minibus business for a very long period; and that the available financial information shows that there were stable profits from 2005-2010.

62.  On the other hand, as to the MPEEM approach, according to Ms Law, it would involve the following (which is not disputed by Mr Lee):-

(1)  First, interviewing the management of the company to understand its financial information and its future business plans;

(2)  Second, building a financial forecast based on the financial information and future business plan obtained from the investigations;

(3)  Third, building a model, but this would involve a wide range of parameters.

63.  According to the experts, the major difference between these two methods is that the GGM focuses on historical financial performance as an anchor of valuation; whereas the MPEEM is based on a prepared financial projection.

64.  Ms Law’s opinion is that the MPEEM is not appropriate in this case for the following reasons:-

(1)  The MPEEM involves a number of projections and assumptions as to the future; and yet there is only limited information available in this case. The available information is not sufficient so as to render a comprehensive and reliable financial forecast. For instance, under the MPEEM, she would need to know how many more minibuses would be needed for the operation of the Route. She takes the view that valuation under the MPEEM is not possible when Winlite’s business was terminated when the report was prepared.

(2)  The MPEEM involves subjective judgments on future cash flows; and yet there is limited financial information for the experts to project on the reasonable future cash flow. Any projection would be liable to manipulation.

(3)  According to Ms Law, Mr Lee had incorporated two major assumptions in his calculation, including (1) the assumption that the economic life of the Licence is for 2 years only; and (2) that he had incorporated large amount of one-off expenses upon ceasing of business. Ms Law’s opinion is that these assumptions are unjustified and had distorted the valuation.

65.  On the other hand, Mr Lee relies upon the fact that, at the early stage of the preparation of the report, in a letter dated 9 January 2020, Ms Law had suggested, inter alia, that the MPEEM should be adopted (without mentioning the GGM). In this respect, Ms Law clarifies that, whilst she did consider the MPEEM at the beginning, after she had obtained the information available and with a better understanding of the case, she realized that the financial projection under the MPEEM cannot be made in light of the limited information available.

66.  Irrespective of the approaches to be adopted for the valuation, I find Mr Lee’s MPEEM valuation unreliable.

67.  First, it is unclear how Mr Lee can build the company’s forecast, when he had very little information about the company’s future business plan / information about its clients. Worse still, Mr Lee has not explained in his report why the financial projection he made is justified without the opportunities of interviewing the management.

68.  Second, bearing in mind that an expert owes an independent duty to the Court, Mr Lee should have clarified in his report that his valuation may be prejudiced by the fact that he did not have the chances of interviewing the management. However, he fails to do so in his report. Such failure compromises his duty to act fairly as an independent expert.

69.  Third, I find the opinions of Mr Lee contrived and problematic. Mr Lee tries hard to say that the MPEEM should be adopted in the present case, relying on the fact that Ms Law or her firm had adopted the MPEEM in 3 previous valuation reports, namely:-

(1)  valuation prepared for Greater China Financial Holdings Ltd (“Greater China Financial”) dated 30 June 2020;

(2)  valuation prepared for Sunshine 100 China Holdings Ltd (“Sunshine”) dated 20 June 2020; and

(3)  valuation report dated 6 January 2020 prepared for Luye Pharma Group Ltd (“Luye”).

70.  With respect, I find Mr Lee’s reasoning contrived and unconvincing. The fact that Ms Law had adopted the MPEEM in the previous 3 valuations by itself does not mean that it is inappropriate for her to adopt GGM in the present case. Further, it is plain and obvious that the 3 previous valuations conducted by Ms Law and her firm are very different from the present one. The subject matters in those 3 valuations are different, ranging from e-commence (in the case of Greater China Financial); first-grade land consolidation in Mainland China (in the case of Sunshine, involving valuation of certain equity interest in a target company); and clinical research and development of innovative drugs (in case of Luye).

71.  More importantly, as apparent from those 3 valuation reports relied upon by Mr Lee, the MPEEM valuations there were prepared after Ms Law or her firm had discussion with those companies’ management on their business plans such that financial projections can be made. This is also consistent with the unchallenged evidence of Ms Law given during cross-examination that, when one prepares a financial forecast and projection for the purpose of the MPEEM valuation, one needs to interview the management of the company for the purpose of ascertaining their business plans. In the present case, it is difficult to see how Mr Lee could justify the financial projections he made, when he did not conduct any interviews of the management of Winlite.

72.  Fourth, as elaborated below, irrespective of which approach is to be adopted, I find it difficult to accept Mr Lee’s valuation, when he takes into account the severance payments and also the financial costs in his financial projection. I see no justification for him to take into account such one-off expenses, as a result of which the income was projected to be negative (such that he concludes that the economic life of the Licence should only be of 2 years only). I shall elaborate further below.

73.  Fifth, his view that the Licence should only have an economic life of 2 years does not sit comfortably with the fact that the Partnership had been operating the minibus business without any interruption for 26 years; and that the Defendant even saw fit to transfer the Licence to HKMCL (a company owned by him and his son) in February 2010.

74.  On the GGM suggested by Ms Law, the major difference between the experts is whether Winlite was earning stable profit. According to Ms Law, Winlite was earning stable profit from 2005 to 2010. Mr Lee disagrees, contending that Winlite had accumulated loss from the year ended 31 March 2006 to the year ended 31 March 2009.

75.  According to the experts, such loss was explicable by the fact that the entirety of such liabilities of not more than HK$6 million (from the year ended 31 March 2006 to the financial year ended 31 March 2010) were due to Winlite’s own directors and shareholders; and it was remarked in the financial statements that such amounts were unsecured.

76.  According to Ms Law, these shareholders’ loans are essentially a form of working capital to support the operation of Winlite; and that a shareholder / director would not demand the loan.

77.  The differences between the experts lie in the fact that Ms Law excludes the sum owed by Winlite to its own directors and shareholders; whereas Mr Lee does take into account such sums.

78.  I prefer the views of Ms Law, for they are consistent with commercial sense and reality. There is no evidence suggesting that directors / shareholders had demanded from Winlite for the repayment of such sums.

79.  Another major area of disagreement relates to director’s remuneration. Ms Law suggests that director’s remuneration should be taken into account for the purpose of considering if Winlite was making stable profits during the relevant period. Mr Lee disagrees.

80.  In support of Ms Law’s opinion, Ms Ng cites Ebrahimi v Westbourne Galleries Ltd [1973] AC 360, 373G-374C as an example in which profits made by the subject company (i.e. similarly a private company in the form of a quasi-partnership) were distributed as directors’ remuneration. Again, I find Ms Ng’s arguments accords with common and commercial sense. In cases involving a small private company like the present one, I find it hard to ignore the directors’ remuneration for the purpose of considering if Winlite was making stable profits.

81.  In the circumstances, I agree with Ms Law that the business of Winlite was stable and had been making profits over those years.

82.  In the closing submissions, in support of her argument that Winlite had no stable profits, Ms Chung referred me to a secured bank loan of HK$7,702,502 in Winlite’s financial statement for the year ended March 2006. This was objected to by Ms Ng on the basis that this was never put to Ms Law.

83.  In my judgment, it is unfair for Ms Chung to rely upon such sum against Ms Law, when this was never put to her during cross-examination (which was accepted by Ms Chung). Further, this point was not open to the Defendant, when Mr Lee did not raise any challenge to the figure for 2006 adopted by Ms Law or raise this point either in his own report or in the Joint Report. In any event, this point would not assist the Defendant, when it is clear from Winlite’s financial statements that it had settled such bank loan within the same year.

84.  In the closing submissions, Ms Chung also challenges Ms Law’s valuation as exaggerating, arguing that Ms Law had included in her GGM valuation the economic benefits of the 5 public light bus licences. I cannot accept this argument. Ms Law’s unchallenged evidence is that none of the cash items on the balance sheet relates to the value of the 5 public light bus licences. According to Ms Law (which is not challenged by the Defendant), the 5 public light bus licences did not generate any cashflow and those 5 licences were only booked at costs in the balance sheets prepared in accordance with the International Financial Reporting Standards. On this basis, I fail to see how the value of the 5 public light bus licences were adopted by Ms Law in exaggeration of the value of the Licence. Ms Chung also fails to demonstrate how those 5 public light bus licences were included in Ms Law’s calculation.

J.  Whether the severance payment of Winlite should be counted

85.  As stated above, a major dispute between the experts is whether the car drivers’ severance payment should be taken into account in the valuation.

86.  According to Mr Lee, the severance payments ought to be included, as severance payments were recorded in the financial statement for the financial year ended 31 March 2006 (i.e. HK$131,409) and for the financial year ended 31 March 2010 (i.e. HK$730,590).

87.  On this basis, in terms of the projected expenses, Mr Lee included in his valuation the severance payments in the sum of HK$152,021 per public light bus for the forecast period from 25 February 2011 to 24 February 2012.

88.  Ms Law disagrees. Whilst she also takes into account the severance payment in 2006, she excludes the severance payment for the financial year ended in March 2010. Her expert evidence is that the valuation has to be conducted on normal market conditions, and thus one should exclude the severance payment in 2010 (which was due to the disputes between the Plaintiffs and the Defendant culminating in the present case). Ms Law further takes the view that Mr Lee’s opinion / argument is circular, viz., his projected valuation is not profitable because Mr Lee took into account the severance payments; and that the severance payment had to be made because the business was not profitable and had to be terminated within 2 years.

89.  For the Plaintiffs, Ms Ng argues that Ms Law’s opinions should be preferred, when the severance payments only arose in the circumstances when Winlite was unable to conduct the business freely in about 2009 and thus had to dismiss the drivers during the financial year ended March 2010.

90.  For the Defendant, Ms Chung argues that both parties contributed to the termination of the Partnership and that Yau decided to withdraw from the Partnership. She asks this Court to adopt the opinions of Mr Lee that the severance payments ought to be taken into account.

91.  Having considered the expert evidence and the parties’ submissions, I prefer the opinions of Ms Law. I see no justification for Mr Lee to project the severance payments in his valuation, when those severance payments were explicable by the fact that the Plaintiffs were forced to cease the business as a result of the Defendant’s wrongful conduct. When Winlite’s position was generally stable and profitable (but for the Defendant’s wrongful conduct), there is no basis for Mr Lee to include in his projection the severance payments. He has not provided any other justification or explanation either.

92.  Further, in light of the facts summarized in Section B above, I am unable to accept Ms Chung’s submissions. Apart from the Plaintiff’s withdrawal from the Partnership, she has not identified any evidence in support of her contention that the Plaintiffs had contributed to the termination of the Partnership.

K.  The question of “reasonable economic life” of the Licence

93.  In her report, Ms Law conducts the valuation of Winlite on the basis of ongoing concern; and on such basis the economic life is deemed to be perpetual. Ms Law considered that the renewal of the PSL was an administrative process and that the minibus business was making positive cashflow consistently.

94.  This is disputed by Mr Lee, who maintains that the economic life should only be 2 years. According to Mr Lee, since the discounted residual cash flows from the Licence are negative, it would make no sense for Winite to continue the operation of the routes under the Licence. Hence, he adopts a reasonable economic life of 2 years from the valuation date, such that his valuation was made on the basis that the Licence would expire in around February 2012.

95.  As explained above, Ms Law observes that Mr Lee reached the negative discounted cashflow only because Mr Lee has included a large amount of one-off expenses (for instance, the severance payments). This is not disputed by Mr Lee.

96.  In my judgment, I agree with Ms Ng that there is no basis for Mr Lee to factor in those severance payments in his valuation. If one were to ignore those expenses, there was no basis for Mr Lee to conclude that the discounted cash flow was negative. As such, it also follows that there was no basis for him to make an assumption that the remaining useful life of the Licence as at 24 February 2010 would only be 2 years.

97.  As stated above, I find Mr Lee’s valuation unsatisfactory, when his opinion is also inconsistent with the reality that the Partnership had been operating the business for more than 26 years; and that the Defendant even tried to transfer the Licence to HKMCL.

L.  The basis of valuation

98.  On the basis of valuation, Ms Law adopts the market value, which is defined in the International Valuation Standards (“IVS”) as “the estimated value for which an asset or liability that should be exchanged on the valuation date between a willing buyer and a willing seller in an arm’s length transaction”.

99.  Mr Lee disagrees and maintains that valuation on the basis of market value is not appropriate in this case because the Licence is not legally transferable and must be returned to the Commissioner for Transport upon its termination or upon the expiry of its operation period.

100.  As stated earlier, there are various features indicating that Mr Lee’s valuation as a whole is unreliable. As such, I am reluctant to adopt his views. I would prefer those of Ms Law and proceed on the basis that the valuation is on the market value of the Licence. But Ms Law accepts that, whether I adopt the market value or the equitable value, this should not impact on the valuation. Mr Lee does not suggest otherwise.

M.  Contributory asset charges

M1.  Not necessary for the Court to determine this issue

101.  In IVS §60.7, “contributory assets” is defined as follows: -

“Contributory assets are assets that are used in conjunction with the subject intangible asset in the realisation of prospective cash flows associated with the subject intangible asset. Assets that do not contribute to the prospective cash flows associated with the subject intangible asset are not contributory assets.”

102.  Mr Lee also refers me to IVS §60.14, which provides that CAC are generally computed on an after-tax basis as a fair return on the value of the contributory asset, and in some cases a return of the contributory asset is also deducted. The appropriate return on a contributory asset is the investment return a typical participant would require on the asset. The return of a contributory asset is a recovery of the initial investment in the asset.

103.  Mr Lee further explains that, given Winlite had 2 assets, namely, the Licence and the 5 licences for the 5 public light buses, the cashflow generated shall be allocated to different assets, namely, the Licence on the one hand and the 5 public light bus licences on the other hand.

104.  In the present case, whilst Mr Lee makes deduction in light of the CAC, Ms Law does not make any deduction in this respect.

105.  Given my ruling that the GGM is to be adopted, it is not necessary for me to resolve the parties’ disputes on the CAC. This is so especially when Mr Lee also accepted in re-examination that no deduction of the CAC is required under the GGM approach. Nonetheless, solely for the sake of completeness, I would set out the reasons why I shall not rely upon Mr Lee’s opinions on the CAC.

M2.  Mr Lee’s opinions on the CAC unreliable

106.  Mr Lee’s opinions on the inclusion of the CAC are, to say the least, doubtful and unreliable.

107.  First, whilst Winlite’s minibuses were not subject to any hire purchase arrangement, Mr Lee proceeds to assume that all 27 minibuses were subject to hire purchase. During cross-examination, Mr Lee mentioned a hire purchase agreement relating to one minibus of the Defendant obtained from the Defendant’s solicitors. Yet the odd thing is that he does not refer the same in his report and did not produce any copy at the hearing.

108.  Second, I found his calculation of the CAC problematic. In his report, he first adopts a figure of 7.74% as the CAC. But when he was challenged in cross-examination that, using his formula, that the CAC should be 8.958% rather than 7.74%, he took a break to review his calculation. After the break, he later came back admitting that the 7.74% adopted in his report was incorrect. However, the problem of his evidence does not stop there. When he continued to give evidence the following day, he tried to put forward yet another formula.

109.  Such change of evidence shows that his calculation of the CAC is unreliable. As such, I place no weight on his evidence even if I have to take into account the CAC.

N.  Discussion: the discount rate

N1.  The evidence

110.  Finally, the parties have disputes on the discount rate.

111.  According to Ms Law:-

(1)  WACC comprises 2 components, namely, the cost of equity and cost of debt. Cost of equity was developed using Capital Asset Pricing Model (“CAPM”), which provides that an investor requires excess returns to compensate systematic risks and an efficient market provides no excess return for other risks. Cost of debt was developed with reference to the long-term prime lending rate.

(2)  She conducted research on available comparable companies for the purpose of determining the appropriate WACC. Ms Law adopted a 4.0% effective discount rate, based on the comparison with AMS (listed in Hong Kong, stock code 0077), which was 4.0%.

(3)  Ms Law then makes adjustment to the 4%, taking into account the fact that AMS is a listed company and that Winlite is a private company, such that there should be a discount reflecting lack of marketability. The lack of marketability discount represents the valuation discount between a publicly traded stock that has a market and a privately held stock with little marketability. On this basis, she applies a discount of 25% to reflect the lack of marketability.

112.  This is disputed by Mr Lee, who maintains that a much higher discounted rate of 13.3% for WACC should be adopted.

113.  To justify his opinion and to attack those of Ms Law, Mr Lee refers to 3 previous valuations prepared by Ms Law or her firm, in which the WACC adopted by Ms Law or her firm as follows:-

Company	Nature of business	WACC
Zhejiang Xin Yunlian Digital Technology Co Ltd / Zhejiang Xin Yunlian Cloud Technology Company Ltd	Fintech / IT Service company	14.0%
Wenzhou Zhongxin Haoyuan Investment Co Ltd	Real estate (raw land毛地 ) development	11.88%
Shandong Boan Biological Technology Co Ltd	Biotechnology Project	14.0%

114.  As such, Mr Lee adopts 13.32% as the WACC, stating that this is more in line with the range of discount rates adopted by Ms Law’s firm.

115.  Whilst Ms Law adopts 4.0% as the WACC after taking into account the fact that the minibus industry is of relatively low risk profile, this is disagreed by Mr Lee. According to Mr Lee, whilst the Partnership had monopoly in terms of the Routes, there still remained competition from other kinds of transport, such as MTR and taxis. However, I find it difficult to evaluate Mr Lee’s opinions, when he does not adduce any evidence or specify any routes which were in competition with the Route under the Licence.

N2.  Submissions and discussion

116.  In her submission, Ms Chung challenges Ms Law’s adoption of 4% as the WACC, when AMS is a listed company with 300 minibuses across 50 routes. She argues that Winlite and AMS are significantly different such that the WACC of 4% adopted by Ms Law should be rejected. She also refers me to Kam Kwan Sing v Kam Kwan Lai (unrep) HCCW 154/2010, in which Harris J rejected the valuation evidence adduced in that case, when the valuer gave expert evidence on the price to earnings ratio of Yung Kee Restaurant by reference to the price to earnings ratio of Tao Heung.

117.  I do not see how those dicta in Kam Kwan Sing would assist Ms Chung’s argument. It is trite that expert evidence is a question of fact. Those dicta in Kam Kwan Sing (above) simply relate to the valuation evidence adduced in that case. It is also trite that legal authorities should be cited for legal propositions, rather than for comparison of facts. In any event, the issues in the two cases are different, when the issue in Kam Kwan Sing is the determination of the appropriate P/E ratio and the issue here is one of the determination of discount rate.

118.  I also agree with Ms Ng’s argument that the 3 examples cited by Mr Lee do not assist the Defendant’s case at all. All those 3 cases involve business which involve higher risks; and in those cases it is not surprising that a higher WACC was adopted.

119.  Nonetheless, on the WACC, I agree with Ms Chung that the 4.0% adopted by Ms Law for WACC is unreasonably low (especially when the adoption of 4% as WACC would result in a valuation in which the 18% of the Licence would exceed HK$18 million and that the value of the Licence would come close to HK$100 million).

120.  Having said that, I also find that the 13.32% proposed by Mr Lee is unreasonably high, especially if one compares it against the three examples cited by Mr Lee. In the closing submissions, Ms Ng put forward the alternative of 8%.

121.  Trying the best that I can by reference to the 3 other valuations quoted by Mr Lee above, I would adopt 9% as the WACC.

122.  Whilst Ms Law makes an adjustment of 25% for lack of marketability, I also agree with Ms Chung that the discount of 25% applied by Ms Law only reflects the lack of marketability; and that there should be further discount to reflect the differences in size between Winlite and AMS. Trying the best that I can, I would give an aggregate discount of 35% to reflect both the lack of marketability and size.

O.  Summary

123.  In conclusion, adopting the parameters put forward by Ms Law, together with those found by this Court, the valuation may be set out as follows: -

Subject	Amount	Formula
Assessed annual free cashflow	437,843	A
Discount rate	9%	B
Perpetual growth rate	2.2%	C
Lack of marketability discount and size	35%	D
Value of Winlite’s business	4,185,264	E = A/(B-C)*(1-D)

P.  Conclusion

124.  In conclusion, it is my finding that the market value of the Plaintiff’s interest in the Licence (as at 24 February 2010), as reflected from the economic benefit brought by it through Winlite’s operation, is of HK$4,185,264.

125.  The parties are directed to agree on the terms of the Order and the question of costs within 14 days from the date of this Judgment. Should no agreement be reached, the parties should fix a hearing before me with 2 hours reserved.

Ms Queenie W S Ng and Ms Michelle L Y Wong, instructed by Messrs Christine FL Ip & Young, for the Plaintiffs

Ms Wallis Chung, instructed by Messrs Adrian Yeung & Cheng, for the Defendant

HCA4252/2003

香港特別行政區

高等法院原訟法庭

民事司法管轄權

案件編號2003年第4252號

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判案書

1.  香港在60 年代曾發生暴動事件，以致公共交通工具經常停駛。市面上因而流行9 人無牌小巴，俗稱“白牌小巴”，經營運輸業務。

2.  暴動過後，政府在70 年代推出小巴合法化政策，取締白牌小巴，由政府發牌，在港九及新界各地行走，即現時的紅色小巴。

3.  至1976 年，政府刊憲限制全港只容許最多4,350 輛紅色公共小巴營運。其實在此之前，政府已在1972 年試行私營豪華小巴制度，並於1974 年正式實施專線小巴制度。這些專線小巴即現時人所共知的綠色專線小巴，只行走指定路線。

4.  本案與訟雙方即第一原告人游華興先生及被告人袁祺明先生，在1984 年初與其他人等一起申請位於新界的第四組線(即63 號線)及第五組線(即65 號線)(但被告人並不認同當時曾申請63 號線)。無論如何，雖然其中有些細節是被告人不同意的，但以下是本案的基本案情，也是本席接納的事實，故先列出如下，以助雙方明白本席對此案的判決理由。再者，本審訊只涉及被告人的責任問題(liability)，若本庭裁定被告人對原告人只有法律上的責任，其賠償金額仍須另行審訊評定。

案情

5.  大約在1984 年1 月，第一原告人游華興，被告人袁祺明、曾仁和葉基超(“核心四人組”)商議成立一合夥公司，以便競投及經營65 號線小巴服務。他們亦決定邀請其他小巴車主加入。結果一共有14 位車主加入合夥競投65 號線，其中三位車主名下有兩輛小巴，因而這合夥公司名下共有17 輛小巴。股權以每輛小巴為單位，即共有17 份股權。其名單如下：

1984至2006年 合夥人及合夥車隊變動表
(車牌號碼)		(車主)		(股權)
*1.	AS5039	袁褀明		2		夫妻
*2.	DA4886	袁褀明
*3.	AS6132	吳觀娣		2
4.	CU4709	吳觀娣
*5.	DA8536	刁瑞榮		2
6.	BZ9368	刁瑞榮
*7.	AS1816	劉玉田		1
*8.	CL8498	黃棉安		1
*9.	BM9369	曾裕娥		1
*10.	CG5280	麥少芬		1
*11.	DA2980	游華興		1
12.	CX8166	葉基超		1	何棠丈夫
13.	BZ9902	何觀娣		1	曾仁妻子
14.	BZ9903	譚渭淇		1
15.	BZ2613	黃美嬋		1
16.	BR5499	陳蓮		1
17.	CY8602	余玉女		1
	(17部車輛)	(14人)		(17股)

有*者為當初競投65 號線的9 部車輛。

6.  由於65 號線只需9 輛小巴 ，各車主決定以抽籤方式從17 輛小巴中揀選9 輛車隊的陣容，即以上列表有*標誌的車輛。結果袁褀明的兩部車輛均被抽中。(由於袁褀明是申請持牌人，所以競投時他最低限度要有一輛車子參與競投。)

7.  在1984 年2 月17 日，這8 位車主以袁褀明為“經理人”身份，向商業登記署登記成立一間合夥經營公司(袁擁有兩部車輛)，名為“鴻基專線小巴公司”。各合夥人亦在商業登記申請上依次列出8 位車主，即上述名單內8 位有*標誌的人士。(後來才加上其餘6 位車主，合共14 位，但那是後話。)

8.  本來，在申請投線的表格上，他們是以鴻基專線小巴公司(“鴻基公司”)的名義作為申請人的，但在遞交申請表時，運輸署拒絕接納以無限公司名義提出的申請。這是因為根據《申請條例》，申請人必須是個人或有限公司。於是各車主商議後，基於時間緊迫，辦理有限公司手續需時，未必能於截標日期前辦妥，故此決定由袁褀明以個人名義代表各車主合夥人為申請人，競投65 號線。

9.  當時的《申請公共小型巴士專線說明書》有以下規定：

(1) 在乙欄內規定每人僅可交來申請書一份。若與兩位以上的註冊車主如欲合股經營一組或多組路線時，仍限以一人名義申請，該位人士若在申請獲准後，必須向運輸署直接負責該路線之服務。而該兩名或兩名以上的合股經營者，當局建議申請人根據《商業登記條例》(香港法例第 310 章)之規定將其與合夥人經營之服務作為商業加以登記。

(2) 在丙欄方面：“運輸署需要取得各註冊車主之保證，彼等必須在該欄指定的空格內簽署以表示彼等願意由申請人單獨向運輸署負責確保該路線之服務。”

10.  由運輸署提供的檔案，即本案列為J148-149 頁的文件可見，運輸署曾於1984 年3 月21 日致函稅務局，當中清楚指出84 年5/51 號(即第 5 線51 號申請)的申請是涉及鴻基專線小巴公司的，亦列出商業登記號碼為8812203-000-02，故此運輸署要求稅務局提供所有合夥人的資料，以便幫助輪選委員會的工作。換言之，運輸署知悉84/051的申請人只是按條例規定寫上袁褀明，但背後有一班合夥人，而該等人士是以鴻基公司註冊商業登記的。

11.  比對一下運輸署提供的檔案，即J151-152 頁所載與本案無關但同類的申請書，便可知悉原告人提供的D524 頁丙欄內9部車輛8 位車主簽署的名單，乃是袁褀明以個人身份在丁欄上簽署，當時大約是84 年2 月22 日，即截止日期8 月27 日前幾天，這亦與原告人游華興的證供吻合。(然而袁祺明否認有其事，下文將有詳細的交代。)

12.  另外，在1984 年4 月25 日(見J157-158)，運輸署亦致函警務處處長，要求查證相關申請人的其他合夥人有沒有刑事記錄或三合會之連系。在84/051的申請中，運輸署就列出吳觀娣、劉玉田、曾裕娥、黃棉安、游華興及刁瑞榮的名字(但這名單上似乎漏了麥少芬一人)。換句話說，雖然運輸署只接受個人申請，但該署其實知悉在很多申請人的背後均有一班合夥人。

13.  由於競投專線小巴者需要向政府顯示有足夠的財政資源，故此各車主同意每輛小巴投入二萬元作為保證金。又由於競投65 號線只需9 輛小巴，於是各人同意餘下6 名車主的8 輛小巴，轉為競投另一專線小巴路線63 號線，與競投65 號線的情況相同。為此各車主同意每輛小巴額外投入一萬元作為保證金(即每人每車三萬元合共3 萬x 17 = $510,000)。各車主亦一致同意將來若任何一組的專線經營權競投成功，每位車主交出來參加競投的小巴均有權加入該專線行駛。這點與原告人交出由被告人後來簽署的2 萬元及1 萬元收條，完全吻合。

14.  被告人的申請書(84/051)是同時申請第 4 組63 號線及第 5 組65 號線的。結果，65 號線以高評分成功投得，而63 號線卻競投失敗。在1984 年6 月19 日，運輸署致函通知袁褀明申請營辦65 號線的權利成功。後來在1984 年8 月6 日，運輸署又致函通知袁褀明自1984 年8 月13 日起可正式開始營運65 號線。袁褀明書面回覆運輸署，接納營辦65 號線的權利及附帶的所有條件，並簽名確認。

15.  1984 年8 月8 日，袁褀明以“合夥經營”的“經理人”身份，向運輸署提交“客運牌照申請書”(即表格 246C)以經營65 線的服務。但初期65 號線的服務只須3 輛小巴及6 名司機營運，故此在“客運牌照申請書”丙欄內只列出3 輛小巴，而這3 輛小巴是以抽籤方式從各車主合夥人中選出二位車主，分別是黃棉安及刁瑞榮，在該申請書上他們與申請人袁祺明之間的關係被列明為合夥人，而在甲欄第(六)段亦填上了鴻基公司的商業登記編號。此外，鴻基公司的商業登記證副本亦作為該申請書的附件之一，一同呈交運輸處。故此本席接納原告人陳詞，即從各車主的角度來看，該申請書是以袁祺明的名義為鴻基公司簽署及呈遞給運輸處的。最後，在1984 年8 月25 日，運輸處首次發出“客運營運證”編號 1260C給袁祺明(“客運牌照 1260C”)。

16.  不過，由於競投63 號線失敗，在1984 年9 月5 日，競投63 號線的6 名車主合夥人便如游華興證供所說般”歸隊，而他們名下的8 輛小巴亦相繼加入65 號列表車隊。根據商業登記資料顯示，他們6 人是在1984 年9 月5 日才正式登記加入鴻基公司成為合夥人(見文件夾F3070 頁)。

17.  其後在1984 年10 月13 日，14 名車主更在律師樓簽署一份“合夥契約”，合夥契約內容亦與大家同意的合夥條款相同，主要是他們以鴻基公司為合夥公司，把每部車輛視為一股的股權，即合共17 股，而每股所出的資本是30,000 元，合共510,000 萬元。

18.  自此，鴻基公司便實行一種他們稱為“公司制”的制度，以經營65 線小巴。鴻基公司每天以租車方式向各合夥人租用其小巴經營，車租為每天330 元。鴻基公司並負責一切有關營運該專線的日常開支，包括支付司機的薪酬及員工薪金，個別合夥人亦  受聘於鴻基公司，處理該專線的日常工作。例如袁祺明是經理，葉基超、曾仁及游華興則分層兼任行政工作，他們並各自支取月薪。

19.  鴻基公司每天的收入則為載客所收取的車資。而公司的虧損或盈利是以17 份股權計算。至於鴻基公司的銀行帳戶，則由袁祺明與曾仁聯名開設。

20.  在1985 年11 月1 日，各合夥人同意運用鴻基公司的資金，以分期付款的形式購入沙田世紀工業中心17 字樓G 室單位，作為公司寫字樓及存放工具等用途。該單位雖然是以袁祺明的名義購入，但實則是鴻基公司合資經營的資產之一。當時該單位的購入價是194,000 元，鴻基公司支付了94,000 元作首期，餘款100,000 元則向銀行按揭貸款，每月供款亦是由鴻基公司支付。在1987 年6 月4 日，眾合夥人在會議上一致確認這個“公司制”的營運方式及細則(見D546/548)。

21.  從1984年8月開始直至1992年，鴻基公司均實行公司制，從收入中減去所有開支後，所有合夥人都能分享利潤。雖然在1984年至1992年這15年期間，由於曾有合夥人退出，所以原告人與被告人的股權有相應的變動，但這15年的報稅表都顯示被告人袁祺明簽署所有報稅表時均是以“President Partner”的身份簽署。

22.  故此，原告人的說法，即由開始經營65 號線至1992年(其後事情的發展在以下判詞再作討論)，毫無疑問14位車主都是以17輛小巴作為一合夥生意，並以鴻基公司的名義經營，這個說法是有以下種種文件及證據支持的：

(1) 鴻基公司在1984年10月17日註冊成為一合夥公司，當時只有8位合夥人在名單上，及後在9月則加上另外6 位合夥人；

(2) 被告人簽署投線的文件丙欄內列出9 輛小巴及其車主；

(3) 運輸署文件顯示該署知悉被告人投線申請乃是代表一家名為鴻基公司的合夥公司。因此，該署在收到該公司的商業登記證之副本後，要求警務處查證所有合夥人背後，有沒有黑社會背景及刑事紀錄；

(4) 投線成功之後，袁祺明在申請客運牌照時只列出當時需要的5輛車輛，但及後每年車輛數目都有遞增，最終便是14位車主的17輛小巴；及

(5) 就鴻基公司的運作而言，無論是賬目還是報稅表均顯示鴻基公司是一合夥人生意：公司的支出包括車主租車費、司機每月薪金、其他行政人員的薪金、購買辦公室物業及其他維修工具、氣油及維修的開支等。在撇除所有開支後，以每輛車一股計算，分享盈利。[1]

23.  由此可見，情況並不是如被告人所說般，即鴻基公司只是一管理公司而只有他自己是線主，其他13位車主都不是合夥人。他這個說法是萬萬不能成立的。況且，每位車主替每一部車子都繳交了3 萬元，鴻基公司才會有51 萬元的資本，結果才能以十分的高姿態投得65 號線。被告人的說法不但強詞奪理，亦影響了他的整體可信性。

股權轉讓

24.  1984年至1992年期間，有多位合夥人轉讓股權，退出合夥生意。其中有將股權與車輛一併轉讓的，也有只轉讓股權而自己保留車輛的。現簡述如下。

25.  首先在1987 年6 月4 日，14 名合夥人合共持有17 股股權，並確認了以下的經營條款(條款是英文列出的，因由律師代為執筆)：

“… with effect from the inception of the Company in early 1984, it has been the Partners agreement that the Partners shall rent their public light buses to the Company in return for rental income accruing to the unlimited companies owned by the Partners, which in turn own the public light buses rented to the Company. The respective Partner’s own companies could also provide driver (the Partner and his/her spouse or other personnel provided by the Partners’ own companies) services to the Company in return for service fees in the form of ‘driver salaries’ accruing to the unlimited companies in question. The crucial point is that the individual Partner receiving the car rental income and ‘driver salaries’ is to be personally responsible for the tax liability pertinent to the income so earned. It would be grossly unfair to those Partners who do not provide ‘driver services’ but have to bear part of the tax liability on ‘Partners salaries’ relating to car driving services should the Company, as per the advice from the Revenue’s letter of 14 May, 1987, is responsible for the tax liability pertinent to the ‘Partners salaries’ as a result of disallowance of same for tax deduction purposes since the ‘nature’ of ‘Partners salaries’ in question is in fact fees paid to the respective Partners’ own companies in consideration for ‘driver services’ or ‘administration services’ provided by those companies to the Company and is not remuneration for employment.

IT WAS THEREFORE RESOLVED THAT upon the signing of this minute by all Partners, the arrangements between the Company and the respective Partners below-mentioned effective from the inception of the Company in February, 1984 be and are hereby approved and ratified :

i) No public light buses shall be rented by the Company otherwise than from the Partners who shall rent their buses to the Company under the name of their respective unlimited companies which shall own these buses. Car rental is to be based on market value and shall be decided from time to time as agreed by all the Partners given all factors, market or otherwise are fully considered.

ii) At the discretion of the Partners, they could provide driver (the Partners or their spouses or personnel assigned by the Partners) services to the Company through the Partners’ companies in return for service fees in the form of ‘driver salaries which shall be paid on the same basis as salaries’ paid to drivers other than those drivers provided by the Partners’ companies, both in terms of money and working hours and such ‘driver salaries’ shall be paid to the respective Partners’ companies.

iii) To support the Company’s administrative functions, administrative services are to be provided by some of the Partners through their own companies to the Company in consideration for salaries which shall be paid on the same basis as salaries paid to staff other than staff provided by the Partners’ companies both in terms of money and working hours, and such ‘salaries’ shall be paid to the respective Partners’ companies…”

26.  一年後，在1988 年7 月3 日，全體合夥人又一致通過以下兩項決議：

“第一項： 由一九八八年七月叁日起，鴻基專線小巴公司之合夥人可以將合夥人之資金股權及公共小巴轉讓與公司內之合伙人或合夥人組織之公司或合夥人組織有限公司。

第二項：     合夥人退股時，而公司內沒有其他合夥人承受時，則該合夥人必須在一個月前用書面通知持牌人袁祺明先生，已便安排其持有之公共小巴轉換出線手續，另外公司之資產公司所欠之債項與勞工假等，則由持牌人與退股之合夥人洽商，假若任何一方對資產值班不滿時，可委託會計師樓或則師樓估值，但一切估值之費用及退股律師樓，則由該退股人負責該費用。”

27.  導致以上決議的原因可能是在1988 年7、8 月間有4 名合夥人，即劉玉田、譚渭淇、余玉女及黃美嬋要求退股。他們的股權由一賜滿有限公司(Queen Honours Ltd)收購，而賜滿是核心組4 人袁、游、葉、曾組成的有限公司。當時股權作價分別為連小巴的14,000 元或不連小巴的10,000 元。因余玉女及黃美嬋只出讓股權，賜滿便另外購入2 輛小巴填補出線小巴的空缺。

28.  1988年7月袁祺明又收購了陳蓮及黃棉安各自的1 份股權及1 輛小巴。結果袁祺明及妻子吳觀娣當時一共擁有6 份股權。

29.  1990年，由於乘客數量增加，鴻基公司在不同階段多購買了3 輛小巴加入65 號線服務，但這3 輛小巴是沒有股權的。至此鴻基公司共有20輛小巴投入65 號線服務。

公司制轉為車主制

30.  在1991年初，刁瑞榮及麥少芬也將他們的2 份及1 份股權出讓，但就保留他們的3 輛小巴。同時，在91年至92年間，各合夥人一致同意作出重要轉變，把鴻基公司經營65 號線的模式由公司制改變為分賬制(後或稱車主制)，即各車主自負盈虧，與其司機分享車資收入，以提升司機的積極性。辦法是各車主每日收集各自名下的小巴錢箱，點算收入，而車主與司機會把每日錢箱車資收入以65%和35%分賬。

31.  至此，股權的轉變如下：

(1) 賜滿有限公司清盤將持有的4 份股權和14 部車輛分別轉給袁、游、葉及曾4 位合夥人。

(2) 游華興成立天暉有限公司(即本案的第二原告人)，以持有他原本持有1 份股權及車輛，以及從賜滿轉來的另一部車輛及由鴻基公司轉來的一部車輛。故此，截至1992年6 月11 日，游華興的天暉公司共擁有4部車輛及3 份股權(因由鴻基公司轉來的車輛是沒有股權的)。

(3) 同樣地，葉基超原先以妻子何堂的名義擁有一部車輛，他也成立利信有限公司以持有股權及車輛。何堂由賜滿轉讓來一份股權及車輛，及由刁瑞榮、麥少芬轉讓股權中轉讓了一份股權，另外又由鴻基公司轉讓一部車輛。故此，葉基超與妻子何堂的利信公司亦擁有4 部車輛、3 份股權。

(4) 曾仁及其妻子何觀娣原先有一份股權及一部車輛，他們亦由賜滿轉來一部車輛及一份股權，因此他們擁有兩份股權及兩部車輛。

(5) 至於被告人袁祺明及其妻子本來擁有6 份股權及6 部車輛，他們由賜滿轉來了一份股權及一部車輛。由鴻基公司轉來一部車輛(但這是沒有股權的)，並亦由刁瑞榮及麥少芬處轉來一份股權及自購另外一部車輛，所以他們的股權進展為8 份，而車輛則有9 輛，因他們從鴻基公司只轉來一部沒有股權的車輛。

(6)    至於，截至1992 年6 月11 日，源基公司車隊的車輛數目為20 部小巴，而股權則維持在17 份，詳情如下：

車主	車輛數目	股權
天暉公司(游華興)	4	3
利信公司(葉基超、何堂)	4	3
曾仁、何觀娣	2	2
袁祺明、吳觀娣	9	8
曾裕娥	1	1
	20部小巴	17份

32.  在鴻基公司1992/93年財政年度的損益賬表中，會計師確認如下：

“There were restructuring in the entire business activities of the Company as with effect from 1 July, 1993 [sic, should be 1992], the Company became a Managing Company managing the Maxi cab receiving management fees from the individual car owners and that all assets and public light buses disposed. [in D987(478)]

The Company changed its nature of business renting out public light bus to managing the green mini bus group and received monthly management fees since July, 1992.  As such, the Company sold out all its public light buses and all assets realizing a capital gain of HKD2,061,260.  However, since this gain is capital in nature and arising from the re-structure of the Company, we consider that it should not be taxable.” [in D1000(491)]

33.  如前所述，約自1992年6月開始，鴻基公司由“公司制”轉為“分賬制”或“車主制”，其安排如下：

(1) 所有司機轉為由各車主聘請；

(2) 核心4人組同意以540,000元將鴻基公司擁有的寫字樓賣給袁祺明以籌集資金，支付所有司機的遣散費。寫字樓出賣後則繼續由鴻基公司以每月5,000元租金租用；

(3) 鴻基公司名下3輛小巴則以每輛1,280,000元分別賣給袁祺明、葉基超及游華興，其中葉基超是以利信投資有限公司購買，而游華興則用天暉有限公司購買；

(4) 至於刁瑞榮的兩股及麥少芬的一股則轉售給袁祺明、葉基超的利信公司及游華興的天暉公司。三人亦自行購買一輛小巴填補他們小巴的空缺；

(5) 至於賜滿公司4 份股權及4輛小巴則分別轉售給袁祺明、葉基超的利信公司、游華興的天暉公司以及曾仁；

(6) 每輛小巴的每月行政/管理費，由1,600元至2,100元不等，以“多除少補”的形式向鴻基公司繳交，換句話說，鴻基公司的收入由公司制下的車資(carfares)變為分賬制下的管理費(management fee)；

(7) 在轉制後，鴻基公司旗下的65 號線有25輛小巴，而股權則仍然維持在17 份。

34.  本案的爭議點，是鴻基公司由公司制轉為車主制後是否仍是一個合夥人生意，這點控辯雙方都有詳細陳述。但全件案的焦點是由被告人袁祺明持有的65 號線的牌照即客運牌照1260C是否法律上承認的財產，而這財產亦是否合夥人生意上的財產，因為這牌照是合夥生意中最有價值的財產。本席認為首先要探討營運牌照是否財產及其產權問題。至於在車主制下合夥生意是否仍然存在則容後討論。

營運牌照是否財產

35.  代表被告人的汪大律師依賴英國上訴庭Re Celtic Extraction Limited (In liquidation) [1999] 4 All ER 684一案，力陳本案的小巴營運牌照並不是財產，因法例訂明被告人作為持牌人是不能將牌照轉讓的。汪大律師陳詞指，根據《道路交通條例》訂明的法例，無論是權利或責任都只是持牌人的個人權利或責任，不得轉讓。假若持牌人去世，牌照應交還運輸署而專營權亦會自動撤銷，持牌人的牌照及牌照下的權利或責任，不會傳給承繼人。他認為這點與專業人士(如律師)的執業證明書有相同之處。而《道路交通條例》第 27(7) 條的法例意向，明顯是禁止客運營業證自由轉讓。故此，被告人認為營運證並不足構成財產或衍生任何產權(proprietary interest)。(見Re Celtic Extraction Ltd [1999] 4 All ER 684 (CA))及Swift Dairy v Wise Farm Ltd [2000] All ER 320。)

36.  Celtic案所涉及的牌照乃是廢物處理牌照(Waste Management Licence)，該案的判詞提要列出判決如下：

“Such a licence has the three characteristics commonly found in those exemptions from a wider statutory prohibition which have the status of property, namely

(i) a statutory framework conferring an entitlement on a person who satisfies certain conditions, even though there is an element of discretion exercisable within that framework;

(ii) transferability; and

(iii) value.”

以上案件其後亦被英國法庭在Swiftv Dairywise Farms Ltd [2000] 1 All ER 320一案中採納。

37.  然而，代表原告人的王寶榮大律師(聯同莊春生大律師出席審訊)，首先引用一案例：Leung Chiu Kwong & Others v Wong Hin Woon & Others (unreported, HCMP1748/1982 judgment dated 17 July 1985 per Nazareth, QC)，力證綠線小巴營運牌照乃財產的一種。該案的案情是：

(1) 在1980 年1 月，運輸署批出一條小巴專營線的營運牌照給予原告人及被告人，他們都是小巴車主，但如前所述，政府的政策規定他們只能以其中一人的名字提出申請。結果第一原告人與其他原告人及被告人組成車隊成功取得兩個專線小巴營運牌照，並在1980 年5 月18 日開始營運。

(2) 各車主的所有訴訟人在1980 年8 月6 日亦簽署了一份合夥協議，分享營運所得的利潤。後來合夥人之間出現矛盾及不滿，最後彼此興訴。

(3) 被告人一方提出反申索，要求法庭頒令宣布第一原告人是以信託人身份持有有關專營牌照。

(4) 經審訊後，Nazareth QC(當時的官階)裁定第一原告人正是以信託人身份持有有關專營牌照，而該牌照乃是合夥人的財產之一。

38.  Nazareth QC的判詞有以下的判定(at p.20-21)：

“Defendants’ counterclaim

First, the Defendants ask for a declaration that the franchise to operate routes 24 and 25 is held by the 1^st Plaintiff on trust for all the Plaintiffs and Defendants. The 1^st plaintiff says it was his intention at the outset to acquire the franchise for himself, the others were only to hire their vehicles to him. That may well have been his ambition, but the evidence shows that without a total of 13 or 14 vehicles to operate the routes, his application would not be considered. He and the 1^st Defendant could not procure such a number of vehicles on their own. They had to attract others to join the venture. It is my finding that at the very least, many of those who did join would not have done so on the basis that the 1^st Plaintiff says he had in mind. Certainly the 1^st Defendant would not and he recruited about double the number that the 1^st plaintiff did. Prospective partners or their representatives met at the Pei Kar Restaurant on 23^rd January, 1980 to discuss the matter and on the 1^st plaintiff’s own admission, partnership was discussed, although he says he did not agree to a partnership. What would have been the point of the meeting, and what the other partners would have gained by simply offering to hire their vehicles to the 1^st plaintiff and allowing him to stipulate their vehicles as participating, is difficult to see. From his subsequent conduct I have no reason to doubt that the 1^st plaintiff would have liked to have created his own public light bus transport operation, but he must have seen that such a proposition would not have been acceptable. In my finding he permitted the other intending participants to believe that the venture was to be a partnership.

I do not accept that the special treatment accorded to the 1^st Plaintiff in the partnership agreement subsequently entered into, or the leading role he played in the preparation and submission of the application for the franchise rebuts the evidence and the clear implication that he acted on behalf of all the participants and not just himself. It is accordingly my finding that he acted also on their behalf and prior to executing the formal written Partnership Agreement, held the franchise in trust for all the participants or partners. The execution of the Partnership Agreement did not, in my view, change that.

Mr. Chong submits that no evidence of pre-contractual negotiations can be given, and no parole evidence can be permitted to vary, contradict or add to so comprehensive an agreement as the written Partnership Agreement. I do not accept that the trust varies, contradicts or adds to the Partnership Agreement. It is true that the trusts upon which the franchise is held by the Plaintiff are now partly recorded in the Partnership Agreement, i.e. as to disposition of the franchise upon termination of the partnership. But I do not think that adds to varies or contradicts the Partnership Agreement (unlike certain other oral terms alleged by the 1^st Defendant, which never found their way into the partnership Agreement, and which I have therefore disregarded).

Furthermore in my view the Partnership Agreement, if anything, supports the Defendants’ claim that the franchise is held upon trust for all the partners.

If I am wrong and the effect of the trust or the oral agreement or pre contractual negotiations which created the trust do add to, vary or contradict the written Partnership Agreement, the 1^st Plaintiff would nevertheless still continue to hold the franchise in trust for the partnership for then it could, in my finding, only have come into the partnership as partnership property. In my finding there is no room for the 1^st Plaintiff to say the franchise was acquired for himself. In accordance with the Partnership Agreement and the Partnership Ordinance, the franchise would be partnership property, held by the 1^st plaintiff in trust for the partners.

It is accordingly my finding that the 1^st plaintiff holds the franchise upon trust for the Plaintiffs and the Defendants.  On the basis of that trust, the terms of the Partnership Agreement and my finding that an additional franchise to operate route 25M was granted by the Transport Department as an accretion to the earlier franchise, it is my view that this subsequent franchise is also held upon the like trusts.”

39.  如此看來，該案與本案有很多相同之處，現臚列如下：

(1) 該案中，眾人以第一原告人的名義提出申請並獲得營運牌照，其申請之所以會成功是基於所有原告人與被告人的13 或14 輛車輛的支持。即使第一原告人心裡是希望以自己的個人身份獲得牌照，而僅把其他人視為在該線“租”出來的車主，但此點在眾人商議時並沒有清楚在提及。反之，誠如該案法官所判定，若第一原告人是如此提出的話，其他合夥人知道不能在該線的營運上平均分享所有的財產與利潤，當然不會同意亦不會加入協議。可見營運牌照乃是該合夥生意的主要財產。

(2) 在該案中，各合夥人亦是在取得牌照之後，才簽署一合夥契約，而該契約中亦沒有列明第一原告人只是以信託身份持有該牌照。但是，第一原告人事實上及法律上只是代表合夥生意取得營運牌照。被告人提出反申索，指第一原告人乃是以信託身份持有營運牌照，這並沒有與合夥契約有任何抵觸。這信託亦沒有改變、加注、或違反合夥契約。

40.  在本案中，被告人在1984 年申請65 線的營運牌照。假若沒有：

(i) 14 位車主每人出資3 萬元合共51 萬元，

(ii) 各人提供小巴合共17 輛，

(iii) 而每部車輛亦沒有任何的按揭欠款，

被告人不可能以最高評分獲得65 線的營運牌照。換句話說，被告人之所以獲得65 線的營運牌照，完全是基於他與各合夥人的合資以及各人的清白背景。因此，本席毫無疑問認為被告人持有該營運牌照乃是以信託人身份持有，雖然契約及各人的口頭協議沒有對此明言，但就法律上理應理解為一信託情況(constructive trust)。

41.  原告人的黃大律師繼而引用另一案例：Cheung Yau Bor v Wong Fook HCMP263/1987，unreported (10 February 1988) per Rhind J。這原審案例並沒有列入法律特刊，但上訴時則有彙報：[1988] HKC 177 per Cons VP, Fuad VP and Clough JA。然而，上訴庭所審議的議題只涉及被告人被除去信託人身份後，所有合夥人商議選出另一信託人的會議是否有通知被告人一事。

42.  對於營運牌照是否合夥生意，以上案例的原審法官Rhind J有以下的判決(at p.30)：

“(ii) Partnership Property

The Licence is partnership property. Wong Fook concedes that now. Any property rights arising by virtue of the Licence will accrue to the Association unless there is some agreement to the contrary. For the purposes of the present case, there is nothing which might incline me to the view that any agreement exists which might deprive the Association of the right to vehicles which would otherwise accrue to it by virtue of the Licence. That the partnership is entitled to new property rights coming into existence by virtue of partnership property (in the absence of agreement to the contrary) is a self-evident proposition. If chapter of verse are required for the proposition, it can be found in Section 22(1) and section 31(1) of the Partnership Ordinance, Cap. 38 which are as follows :-

‘22. (1) All property and rights and interests in property originally brought into the partnership stock or acquired, whether by purchase or otherwise, on account of the firm, or for the purposes and in the course of the partnership business, are called in this Ordinance partnership property, and must be held and applied by the partners exclusively for the purposes of the partnership and in accordance with the partnership agreement :

Provided that the legal estate or interest in any land which belongs to the partnership shall devolve according to the nature and tenure thereof and the general rules of law applicable thereto, but in trust, so far as necessary, for the persons beneficially interested in the land under this section.’

‘31. (1) Every partner must account to the firm for any benefit derived by him, without the consent of the other partners, from any transaction concerning the partnership or from any use by him of the partnership property, name, or business connexion.’”

And at pp.34-35：

“VI. EPILOGUE

This is by no means the first partnership dispute involving a ‘greenline’ public light bus franchise to come to court. As with the present case, the other litigation has arisen from the circumstance that the Licence for a fleet of ‘greenline’ buses has been granted to one member of a partnership. This system of granting the Licence to one partner has helped foster the delusion in that partner that he alone owns the Licence and should reap the benefit of additional vehicles. A system which allows that type of delusion to arise is not conducive to the public good for a whole host of reasons, including the potential for dishonesty, breaches of the peace, and unnecessary litigation.

It should not be beyond the wit of man to devise a system for granting ‘greenline’ public light bus franchises which avoids the evils of the present system. One solution might be for the Transport Department to grant a Licence only to a member of a partnership which is governed by a Deed of Partnership which states explicitly that the Licence is held in trust for the partnership, and that any additional vehicles granted by virtue of the Licence shall belong to the partnership as a whole. Another possible solution could be for owners of public light buses to associate together under the umbrella of a limited company structure, rather than a partnership. Then the Licence could be granted to the limited company, rather than a partner. With a limited company as holder of the Licence, there could be no possible scope for argument about who was entitled to the benefit of additional vehicles.

This idea of employing a limited company structure has, to a certain extent been explored already between the parties to the present action and the Transport Department, but, as far as I am aware, nothing concrete has materialised yet.  I venture to suggest that further effort should be expended on trying to devise a suitable form of limited company structure.  To minds more imaginative than mine, other ideas will probably suggest themselves as solutions to this licencing problem.  The abuses inherent in the present system are plain for all to see; a little ingenuity could, I am sure, lead to their rapid elimination.”

43.  不過，被告人一方指出，原告人引用的Cheung Yau Bor及Leung Chiu Kwong兩案例並不能協助原告人的說法，即客運營業證構成“財產”之陳述。Leung Chiu Kwong一案中的合夥協議列明小巴的專營權屬合夥財產，而客運營業證只賦予該案的第一原告人以信託形式代各合夥人持有該專營權。但該案並沒有就客運營業證及專營權是否構成“財產”一點提出爭議及辯論。

44.  被告人又指出，在Cheung Yau Bor一案中，有關的合夥協議條款清楚顯示涉案的“客運營業證”是由持牌人(即該案的第一原告人)代合夥人持有的。與訟各方亦沒有就客運營業證在法律上是否構成“財產”一點提出辯論。

本庭裁決

45.  本席認為Leung Chiu Kwong一案已經確立了客運營業證在法律上是可以構成一種財產，無論以上案例是否在合夥協議內是否清楚列明持牌人只是以信託形式為所有合夥人持有營業證，也不足以顯示出該兩案與本案之間有法律上的重要分別。

46.  正如Leung Chiu Kwong一案，被告人袁先生在本案的情況下是以“辯解信託人”(“constructive trustee”)持有該客運營業證；他既是信託人，便須將所持有的財產向各合夥人交代。14 位合夥人是基於他們將會成為牌照的受益人(beneficiary)的理解下才願意各人合資3 萬元湊成51 萬元的資金，以及用17 輛沒有按揭的車輛以幫助被告人投得65號線。

車主制下是否仍是一合夥生意

47.  如前所述，鴻基公司在公司制下營運65 號線毫無疑問是一合夥生意，各持股人根據他們的股份將鴻基公司每月扣除所有開支後的利潤平均分配。問題是由公司制轉為車主制後，各車主對其車輛的營運自負盈虧，在此情況下鴻基公司是否仍是一合夥生意，抑或如被告人所說，鴻基公司至低限度在後期已淪為一管理公司，當中並沒有任何的利潤，因鴻基公司的所有支出包括了寫字樓的租金。此外，各管理人的薪金以至所有管理的開支都是以實報實銷的原則，由各車輛的車主負責，而車主只不過是拿他自己的車輛所得的利潤作為自己經營的收入。

48.  如前所述，本席毫無疑問認為該牌照是有價值的資產，而被告人是以信託人身份為各合夥人持有。雖然轉制後鴻基公司並沒有任何車資方面的收入，但各車主仍繼續透過鴻基公司經被告人以信託形式持有營業牌照，以繼續經營自己的車輛。換言之整個合夥生意由共同分享利潤變為各合夥人自行承擔屬下小巴的盈虧，但各人的關係仍舊是合夥人。

49.  被告人質疑，若牌照是一合夥資產，那為何以前的車主在賣出股權時，無論有沒有一併賣出他們的車輛，都不把牌照的價值計算在內？本席認為，雖然他們並沒有計算牌照的價值，但這不能證明牌照是沒有價值，又或牌照只是由被告人單獨擁有。如前所述，被告人之所以得到牌照是因為各人提供資金及無按揭的車輛，結果被告人才能以高評分投得65 號線，當時各方的理解是被告人會替各合夥人持有牌照而不是由他一人獨佔。至於各前合夥人當初為何並沒有明確把牌照的價值計算在內是一個會計問題，本席在此不作揣測。

50.  袁褀明堅稱鴻基公司就算開始時候是合夥生意，但當制度由公司制轉為分賬制(或稱車主制)時，該合夥經營生意已經解散了，因為鴻基公司將它的資產變賣，並遣散了所有由公司僱用的司機，改由各車主直接僱用他們的司機。

51.  然而，本席認為，此舉其實只是營運上的轉變，原因是合夥人希望這轉變能對司機們有更大的鼓勵，從而提高司機的積極性及服務水平，該他們有更大的動力去賺取更多車資收入。此外，鴻基公司並沒有將所有資產變賣，讓各合夥人平分其中獲取的金錢。譬如有一筆11 萬元的款項是汽油公司給予鴻基公司的折扣回佣，在轉制後這筆款項被用於興建新的車站上蓋，而該上蓋在1996 年完工。故此這上蓋便是公司資產之一，是當時所有合夥人所擁有，讓各車主提供更好的服務，由此可見當時的合夥人仍舊繼續經營一盤合夥生意。

52.  最後，雖然袁褀明在1999 年9 月1 日取消了鴻基公司的商業登記，但這並不等如各人之間的合夥情況已經解散，因為各合夥人仍舊是透過被告人替他們持有牌照以便繼續合夥生意。取消鴻基公司的商業登記這個行為充其量只能是經營模式的又一次改變。

原告人與被告人在轉制後的紛爭

53.  在1991 年初，刁瑞榮(擁有兩輛小巴及兩份股權)及麥少芬(擁有一 份股權及一輛小巴)意欲出售他們的股權，但就保留自己的三輛小巴。如前所述，刁瑞榮及麥少芬結果出售了他們分別擁有的二份及一份股權。

54.  在1992 年5 月，游華興與葉基超分別以天暉公司及利信公司的名義購入“刁瑞榮”及“麥少芬”三股的其中兩股，而由於後者沒有賣出他們的小巴，於是天暉公司及利信公司便要各自購入一輛小巴加入65 號線服務。根據運輸署定下的手續，凡有新入線的小巴投入服務，持牌人均需向運輸署提出書面申請，該申請稱為“入線信”，而在申請入線時，持牌人亦要與車主聯署呈交一份文件，述明持牌人與車主之間的關係，俗稱“聯合聲明”。被告人分別替利信公司及天暉公司的新入線小巴呈交該兩份文件後，葉基超發現袁祺明單方面私自在“聯合聲明”上，把他們之間的關係填上“租車代表”而非正確的“合夥人”。葉基超於是通知游華興，而游華興亦發現袁祺明在提交有關天暉公司的入線信上，其聯合聲明也把他們的關係填上“租車代表”而不是“合夥人”。

55.  於是，葉基超和游華興非常憤怒地質問袁祺明。本席接納原告人的證人的説法，即當時袁祺明是承認錯誤的，但卻托詞稱文件已呈交運輸署，不能改正。結果，在兩位車主追迫下，袁祺明在1992 年6 月11 日簽署了兩份“協議合約”，分別保證利信公司及天暉公司名下的專線小巴，在65 號線有權長期經營，除非他們自願退出，否則不能以任何理由阻礙其經營。(相對來說，袁褀明對此“協議合約”則沒有合理的解釋。)

56.  以上的“協議合約”，已足以證明游與葉二人一直以來均視65號線牌照為合夥生意的財產，而各合夥人則為受益人，不然他們沒有理由堅持自己仍是以合夥人身份入線而對被形容為“租車代表”深感憤怒，因爲後者的情況表示袁祺明日後可隨時不批准他們的車輛在65 號線行走。至於袁祺明同意他們有長期的權利，亦是深知自己理虧，因牌照是各人出資及提供車輛而投得，他是有責任讓各合夥人(包括游、葉二人)長期經營在65 號線下的小巴，除非他們自願退出，則作別論。

57.  根據游的證供，袁祺明在1997年要求轉換持牌人不遂後，於1999 年又再次暗中申請把客運牌照的持牌人轉為自己的有限公司，但亦不成功。於是袁便指使兩位站長，即他本人的姪兒，不再為游華興及曾仁的小巴提供服務，並在各方面刻意刁難他們，其中包括：

(1) 拒絕安排運送、開錢箱及數硬幣服務。但之前每月繳付的行政費卻是包括這些服務的。

(2) 拒絕發出出更記錄表及編更表予游華興的小巴司機，但之前每月繳付的行政費卻是包括此項支出的。

(3) 站長針對游華興及乘客量少的小巴，不容許他們在源禾路站頭把乘客轉車及集中於一輛小巴再載到火炭工業區，以致他們的小巴收入減少。當游華興車隊的司機拒絕該等針對性的指示時，袁便借助乘客的投訴，指控游華興車隊違反運輸署服務指引，企圖向運輸署申請剔除游華興車隊。

(4) 把放置在源禾路站頭的工具箱上鎖，不再容許游華興及曾仁的小巴使用這些工具及零件，但該些工具及零件卻是早前用鴻基公司的行政費購買的。

(5) 從1998 年11 月1 日起，拒絕游華興及曾仁進入鴻基公司的寫字樓，因早前在該年7 月25 日，袁祺明單方面在未得合夥人的同意下，終止讓鴻基公司使用該寫字樓。游華興與曾仁最後一次進入該寫字樓時，各自取回一架舊的數銀機，而留下新的數銀機給袁祺明使用，游與曾均認為，對於袁不合理霸佔公司資產的行為，這已是很客氣的舉動。

(6) 袁祺明更在1998 年10 月15 日，單方面向所有小巴車主宣佈，自1998 年11 月1 日起，他會取代鴻基公司收取每輛小巴每月1,600 元的行政費，以支付站長薪金及持牌人的其他支出。自此取消如前所述的一切服務，亦不用再以多除少補的方式向合夥人車主收取行政費。

58.  故此，游與曾自1998 年11 月1 日起拒絕向袁祺明支付行政費。袁因此向游及天暉公司在區域法院提出兩宗民事訴訟，即DCCJ17325/1999及DCCJ4261/2005，但其後此兩案卻不了了之，袁並沒有繼續這兩宗民事訴訟至有終局判決為止。

59.  袁放棄從民事訴訟途徑追討行政費，但卻轉而使用其他不合法的手段，包括扣起運輸署在1998 年12 月1 日發出給游與曾車隊的“限制區許可證”及“禁區許可證”。在1999 年2 月30 日，上述車隊獲“客運營業證明書”(俗稱“細牌”)，但袁祺明卻扣起該等證件。游與曾在1999 年2 月9 日到運輸署商討，希望可把問題解決，但袁仍拒絕把證件發放。

60.  1999 年8 月中，游接獲交通警察警告，要求他盡快解決與袁的爭拗，取回所有客運營業證及將許可證張貼於小巴上。在1999 年9 月4 日，雖然曾仁在源禾路站頭向袁祺明表示願意交回行政費以取回被扣起旳證件，但袁祺明堅決拒絕曾仁的付款，亦沒有交出該些證件。

61.  結果，1999 年9 月28 日，交通警察前往源禾路站頭，要求游及曾的小巴停巿，直至有細牌及兩許可證展示於小巴玻璃上爲止。其後警方甚至對游的天暉公司作出相關的檢控。運輸署在1999 年9 月30 日亦曾就此致函袁祺明表示不滿，同時就他不發回該些客運證及禁區證而導致七 輛小巴不能正常地營運一事提出警告。在游華興的代表律師多次發信警告後，袁祺明終於在1999 年10 月21 日透過其律師交出所有有關證件。在審訊期間，袁解釋他的行為是因為原告人拒絕交管理費而引起的。

62.  由於袁祺明以上的種種不合理態度及行動，曾仁受不了他的欺壓，最後決定把名下的二輛小巴賣出。但袁祺明仍然不肯就這樣罷休。在1999 年9 月30 日，袁祺明要求曾仁附加一份手寫的車隊自動退線文件(見[G3374(54)])及在運輸署檔案的[J213(228)]），才願意配合向運輸署辦理離線手續，讓曾賣車。最後曾仁屈服及簽下該份文件，並在1999 年9 月30 日正式離線。

63.  事實上，在1993 年9 月至1999 年10 月這六年間，袁祺明在未得其他合夥人同意下，已擅自增加10 輛小巴行走65 號線。雖然袁祺明通知其他合夥人，指增加10 輛小巴是不能增加他自己的合夥權益的股份，而合夥權益仍維持在17股，但在車主制之下，袁已經分薄了其他合夥人車隊的收入，也剝奪了其他人可發展和擴充車隊的權利。

64.  在2000 年3 月及8 月，袁祺明甚至向運輸署申請把游華興車隊從65 號線中剔除，以達到其獨佔該車專線的目的。游華興透過律師就該兩次申請逐一向運輸署提出反對，結果運輸署把這些申請撤銷或擱置了。

65.  自1995 年開始，65 號線已發展為多條路線：即65K、66K、67K、65A及65S。其中車資收益及利潤最多的是66K及67K。由於袁祺明負責小巴編更及安排車輛行走的次序及頻率，其後他更針對游及曾二人，使他們的車輛減少或甚至不能行走有較高利潤的路線或時段，如66K及67K。

66.  在2003 年3 月，袁祺明及其姪兒袁昌開甚至對游華興作出挑釁行動，導致他們一同被警方落案起訴在公眾地方打鬥罪(即STCC875/2003一案)。結果袁昌開向法庭承認打鬥，接受簽簿守行為。而游華興則在審訊後，因法庭判定表面證供不成立而獲當庭釋放。

67.  在2003 年11 月17 日，曾裕娥退出65 號線。自此，在65 號線的合夥經營只剩袁祺明及其妻子吳觀娣一方及游華興的天暉公司一方，即合共兩方合夥人。在27 輛小巴車隊中，游華興有五輛而袁祺明有22 輛。至於合夥權益則仍為17 股，袁祺明及其太太佔14 股而游華興佔三股。

68.  在2003 年10 月，袁祺明擅自把游華興的車隊完全從66K及67K的編更表上剔除。故此，由2003 年10 月至2009 年8 月期間，游華興的車隊只能行駛65K的支線65A，而有較高車資收入的66K及67K則完全由袁祺明的車隊行駛。

69.  在2009 年8 月23 日左右，運輸署發出如前所述的兩許可證給游華興的車隊，但袁祺明再次扣起游華興五 輛小巴的許可證，直至游華興透過律師多次提出強烈的要求後，才得以在10 月9 日取回該等證件。然而，袁祺明隨後則要求游華興車隊的司機全部須由他自己聘用，理由是根據運輸署在2003 年發出的規定，“提供專線服務的所有公眾小巴，必須由持證人聘請的司機駕駛”。不過，由於本案訴訟已經開始，雙方根本無法合作遵守此規定，因此袁祺明便透過律師通知游華興，若不遵守該項規定便不會替游華興車隊的細牌續期。結果，游華興決定以車主身分退出客運牌照1260C的營運，又簽署車隊退線通知，並透過律師在2010 年2 月24 日把文件送給袁祺明的律師，但卻就他在65 號線的合夥權益保留追討賠償的權利。

70.  至此，袁祺明便成為了65 號線所有車隊的車主，他於能夠將65 號線的客運牌照持牌人轉為自己新成立的“鴻基專線小巴有限公司”。事實上，運輸署在2011 年2 月1 日已批准新的客運牌照編號18633C給袁祺明的新有限公司繼續經營65 號線，但轉讓的事實於審訊期間並沒有相繼向對方及法庭披露。

71.  更甚者，袁祺明在2011 年4 月11 日存檔的第三份補充陳述書第五頁中陳述，並由他的律師確定：“綠色線的線權是由運輸署管理和擁有。”及“1260C牌照也是一樣，如有一天我不打算繼續經營也是一定要退回給運輸署，而運輸署也不會給本人任何補償(雖然本人由1984 年8 月經營至今)”。但其實在此之前，即2011 年2 月1 日，他所持有的牌照已轉讓給鴻基專線小巴有限公司。

72.  本案在6 月1 日審訊期間，本席查詢運輸署代表黃依凡小姐時，才得知65 號線已於2011 年2 月1 日轉讓給袁的有限公司。其後袁祺明才披露他在鴻基專線小巴有限公司只是一名“小”股東，擁有4,999 股，而大股東則是他的兒子袁昌盛，擁有餘下的5,000 股已發行的股份。代表游華興的大律師指出袁祺明是有刻意隱瞞的嫌疑，目的是使訴訟的爭議財產價值消失，從而給別人一個錯覺，以爲即使原告人勝訴，亦只能獲得空洞的判決，因客運牌照並不值分文。

被告人有否違反合夥人契約

73.  原告人指上述行為違反了合夥人契約，並要求賠償。本席認為各合夥人在轉為車主制後並沒有為轉制後的安排訂下明確的法律責任。驟眼看來，由於鴻基公司的唯一收入是每月的管理費(以「多除少補」方式計算)，被告人自行取代鴻基公司收取每月$1,600管理費是違反契約的做法。但本席留意到被告人是持牌人，有責任維持路線的服務質素，而且他擁有大部份合夥權益，因此由他收取每月管理費並不一定構成毀約的行為。原告人未能指出被告人代鴻基公司收$1,600管理費違反了任何明確或隱含的合約責任。因此本席接納被告人的抗辯，他可以因為原告人拒絕繳交管理費而停止提供管理服務。

74.  至於被告人擅自增加小巴數量及以對原告人不利的方式調動原告人小巴行駛路線方面，由於轉制後各方並沒有就這些安排訂下規定，而原告人亦未能指出這些行為如何構成毀約，本席裁定原告人對這兩項行為的毀約指控不成立。

75.  為了避免任何混淆，本席在此強調在轉制後雖然合約條款並不清晰，但無可否認的一點是當時各合夥人仍然是繼續一盤合夥生意，而其中一條條款是被告人需要為其他合夥人持有牌照。

雙方證人的可信性

76.  原告一方傳召了三位證人出庭作證，即游華興、曾仁及何九。正如原告人大律師的陳詞指出，原告人游華興作證時表現堅定，在盤問時亦無所動搖，而最重要的是他的證供與案中文件證據非常吻合，互相呼應，且其中部分文件並不是由他手頭持有，而是由被告人袁褀明或運輸署提供的。再者，如前所述，運輸署在開始審訊後，將他們持有有關1260C線的所有檔案文件呈堂。雖然當時的申請入線原稿屢尋不獲，但不可置疑的是袁褀明填寫的其中一份D2-524文件在運輸署的檔案中亦有一份，且及後更證明了是申請表格中的其中一部分，證明游華興所說屬實。至於袁褀明否認這文件是申請文件的一部份，則證明了他對於對自己不利的文件採取不承認的態度。本席認為他不是因為年紀問題而忘記當日的申請詳情，因他在這項小巴生意中清楚知道，申請時是要將所有車主的名字及車輛清楚填寫向運輸署交代的。事實上，從運輸署的檔案中可見，該署是保存了他手寫的這份文件，這就確定了游華興所說屬實，而袁褀明則是蓄意說謊的。

77.  至於游華興所提供的合共3 萬元(即分別為2 萬及1 萬)的收條證據顯示的日期是在2 月之後，但袁褀明則是在2 月限期之前已列出51 萬(即每人每份3 萬x 17)的支持，這點只顯示了是游華興不能清楚記得為何袁褀明在2 月已收了51 萬，而他的文件只顯示到4 月才交出3萬元，但卻並不影響他的證供。因51 萬元的資金正正是17 名股東每人出資3 萬元所籌集得來，而不是如袁褀明所說他只收了每位二萬元。若然他所說屬實，那他如何解釋51 萬元的由來呢？

78.  至於曾仁的證供，實為游華興證供的佐證。但是很明顯，曾仁由於年紀關係，有時對某些事情的記憶有點模糊，甚至記錯了某些明顯事情。但整體來說，他也是一個誠實可靠的證人，而並不是如袁褀明般蓄意隱瞞及廻避事實。曾仁說鴻基公司當初運作是一合夥生意。

79.  當然，游華興與曾仁均作證稱，在1999 年9 月29 日，他們沒有到過運輸署新界分區辨事處，與運輸署官員會面，但是運輸署的檔案卻清楚顯示當天署方曾和游華興、曾仁及袁褀明會面。儘管如此，當天有這次會面並不影響原告人的基本案情，游曾二人只是因爲年紀關係不能清楚記得在12 年前9 月的某日曾到運輸署開會，這種記憶模糊的現象在老人家中實屬常見，不足為怪。

80.  反觀袁褀明雖然同樣是上了年紀的人，但他不盡不實的證供內容卻並不是因為他記憶力退化而是他故意誤導法庭。首先，他堅持在1983 年尾或1984 年初時，他們最先是想競投65 號線，但因車主意見不合，有些人要競投63 號線，所以他們便沒有當初的共識了，結果他自己只競投了65 號線。但這正正是與運輸署的文件不相符的。運輸署的文件清楚顯示，63 號線及65 號線的競投申請人都是袁褀明本人，而他是親自到輪選委員會席前被接見的，不過當時他們沒有成功投到63 號線而只是獲得65 號線的專利權罷了。故此袁褀明所謂的“意見不合”是一明顯謊話，意圖顯示其他人當時的共識以至成立的合夥生意在投線前已經沒有了。

81.  另一方面，他聲稱D524 文件，即如前所述列出了所有車主姓名、身份證號碼及車牌號碼等等的文件是已經作廢了的，但後來運輸署的文件卻顯示此乃當時投線文件即“公共小型巴士專線申請書”的文件中的其中一欄或一頁。換句話說，該份載有他的簽名及日期的文件是他大約在1984 年2 月22 日呈交運輸署的申請書中其中一頁的副本。而如前所述，運輸署亦根據這文件，要求警務處調查其上列出的所有車主與合夥人是否有刑事紀錄或三合會背景紀錄。但是不知何故，該要求文件中缺少了其中一位車主麥少芬的名字。本席認為很可能此乃人為錯誤，並不影響本案的案情。

82.  第三，袁褀明堅稱是用自己名義的商業登記而非鴻基公司的商業登記競投65 號線。但運輸署後期呈交法庭的檔案中明顯顯示，袁褀明在65 號線從競投開始到後來的客運牌照申請均是利用鴻基公司的商業登記，只是後期他可能是不慎填寫了自己商業登記的號碼，而上呈了鴻基公司的商業登記副本，於是被運輸署職員要求他按照自己的商業登記號碼，呈上該名字的登記副本。這點清楚顯示袁褀明以不厭其詐的方式，試圖掩飾鴻基公司乃一合夥生意的事實。

83.  第四，袁褀明雖然不爭議或無法爭議“合夥契約”的存在，但他仍然堅持根據合夥契約成立的合夥經營的鴻基公司，只是一間管理公司。這點重複又重複地在他的證供中出現。即使有時在盤問時並不是問他這方面的問題，他亦自動請纓再重複他的講法。但如前所述，所有證據均顯示鴻基公司並非只是一間管理公司，而是合夥經營的公司。

84.  第五，袁褀明指稱合夥契約並沒有列明65 號線或者當時已批出的客運牌照1260C為合夥財產。但其實客運牌照之批出即代表當局准許申請人及其他已註冊之車主擁有65 號線的專利權。故此契約條款清楚列明合夥人是合夥經營專線小巴業務。這正正是游華興供詞所指出，當時各車主合夥人預料將來可能會再競投其他專線小巴服務，所以不在該契約上列明65 號線或客運牌照1260C。

85.  關於合夥契約第 9 條，雖然當中列明了鴻基公司每年必須整合一份“資產負債表”，但袁褀明並沒有提供任何資產負債表。鴻基公司是由袁褀明控制及管理，若沒有資產負債表呈堂，這就顯示了一方面可能是袁褀明並沒有披露(但似乎原告人亦從沒有申請文件披露，要求袁褀明清楚指出鴻基公司有否資產負債表，而袁褀明已表明他沒有其他的文件)，又或是他本人失職而沒有製作資產負債表。故此，袁褀明不可以因爲自己失責，沒有整合資產負債表而反過來說，由於沒有資產負債表，所以鴻基公司並不是合夥生意，又或65 號線的大牌是沒有價值的，因爲它不可轉讓。

86.  整體來說，在本案中本席接納游華興及曾仁的證供，但其證供與書面文件不符者則例外。倘若二人的證供與袁祺明的證供有出入，本席則不接納袁祺明的證供。袁祺明的證供只是維護他自己的權益，刻意把自己描繪為唯一擁有客運牌照的持有人。此外他的證供也有多處與運輸署的檔案文件不符。

結論

87.  故此，本席裁定客運牌照為合夥資產，原告人解散合夥經營生意後可獲合夥資產的部份價值。原告人指被告人違反合夥契約的所有指控則不成立。：

88.  本席頒佈以下濟助：

1. 一項聲明，確認第一原告人(及以第二原告人名義)和被告人是有關運輸署發出的客運營業證編號1260C公共小型巴士(專線)服務的合夥經營者。

2. 一項聲明，確認根據客運營業證編號1260C及其後變更的客運營業證編號18633C的公共小型巴士(專線)服務的專營權利及其生意是以信託方式為該合夥經營持有。

3.   原告人可依終止合夥經營生意時的權益獲得相等於合夥資產價值的賠償。

89.  有關訟費方面，本席認為本案的重點在於客運牌照是否合夥財產，被告人有否違反協議只是本案的一個小爭議點。考慮到被告人作供時不盡不實，不必要地增加了本案的審訊時間，本席認為合適的訟費暫准命令為被告人須支付懲罰性訟費給原告人。此暫准訟費在頒下命令後14 天，才成為永久性命令。

第一及第二原告人：由謝鵬元律師事務所轉聘王寶榮大律師及莊春生大律師代表。

被告人：由楊永安鄭文森律師事務所轉聘汪祖耀大律師代表。