TO PUI KUI AND ANOTHER v. HULTUCKTONG COMMERCIAL & INDUSTRIAL CO LTD AND OTHERS

HCA 51/2007

ACTION NO 51 OF 2007

____________

____________

HCA 1040/2009

ACTION NO 1040 OF 2009

____________

____________

HCA 1041/2009

ACTION NO 1041 OF 2009

____________

____________

(Heard Together)

_______________

J U D G M E N T

_______________

Background

1.  Here is a story of a family divided.  A father whose intentions and wishes for his family were reflected in the objects of the company he set up - to promote and encourage unity and friendly relationship among his descendants - would have been devastated, to see his adult children embroiled for over 9 years in not less than 10 sets of legal proceedings involving his wife for over 60 years, to fight over the assets he had accumulated, through hard work and frugality, for the welfare of his spouse, children and grandchildren.  Whether such division be caused by mistrust, misunderstanding, sibling rivalry or selfish greed, it remains an unaltered fact that the series of family litigation has been fought with relentless bitterness, with little regard for economic or even common sense.

2.  The factual background leading to these proceedings before me have been set out in the judgments of the Court in several different cases, and will not be repeated in detail in this Judgment.  In brief, the deceased Ng Po Sum (“Father”) was the head of the Ng family.  He married his wife, Mdm To Pui Kui (“Mother”) in 1939, and they had 8 children (“Siblings”), born between 1940 and 1955:

Ng Kwok Piu Philip

Ng Yiu Chi Eleanor

Ng Kay Chee Angela

Ng Woon Chi Olympia

Ng Kwok Tung Tony

Ng Kwok Ching Jeremy

Ng Oi Che Stephanie and

Ng Kwok Tai Andrew

3.  Father was a self-made man who worked as an accountant (until some time in the 1950s), chartered secretary and tax specialist.  In 1953, he set up Ng Po Sum & Co for his practice.  Between 1965 and 1984, various other companies were set up by him in Hong Kong:

Hultucktong Company Limited (“HCL”)

Hultucktong Enterprises Limited (“HEL”)

Hultucktong Commercial & Industrial Company Limited (“HCIL”)

Evidence Limited (“Evidence”)

Ng Sheung Ming Association Limited (“NSMAL”)

Tarron Limited (“Tarron”)

These companies (“Family Companies”) were used to hold landed properties in Hong Kong which were purchased by Father, and used as residences for Father, Mother, each of the sons (and their families) and the unmarried daughter in Hong Kong (Stephanie), or leased out for rental income. 

4.  Before the disputed restructuring which took place in 1997, the shares in HCL, HEL, and HCIL were registered in the names of NSMAL, Father, Mother, Philip, Eleanor, Stephanie, Andrew, and (in respect of HCL only) Angela and Olympia. HEL holds the majority of the landed properties, including the ones occupied by Mother and Stephanie.  HCIL holds the landed property occupied by Philip, and HCL holds the landed property occupied by Father and Mother, and later, Andrew. Tarron holds the property occupied by Jeremy, and Evidence holds the property occupied by Tony.

5.  Despite their division, the Siblings all agree that Father was a traditional family man, frugal, hard-working, headstrong and, whilst he was alive, made all the decisions for the family.  As observed by Deputy High Court Judge Winnie Tam SC in her judgment in HCA 522/2008, which involved another dispute amongst the family members:

“The (Father) had for years set up elaborate schemes to provide for the needs of his wife and their children, and had arranged for them free accommodation, income from landed properties to be received and expenses including income for his wife and other family members to be paid out of designated accounts, the records of which members of his family had regular access. Unlike other families with adult children, the (Father) had organized the family finances in such a way that even the utility expenses of the individual households of his adult children continued to be paid out of the account of HEL throughout the years and not out of the adult children’s own private funds. Under the meticulous planning of the (Father), the aged parents would continue to provide for themselves to the end of their respective lives out of funds the (Father) had accumulated over the years without expecting their children to contribute anything towards their living expenses.”

6.  NSMAL, which held shares in HCL, HEL and HCIL before the Restructuring, is a company limited by guarantee.  Father and Mother were its founders, and the members of the company are Mother, Philip, Eleanor, Tony, the other descendents of Father, and the wives of the male descendents.  The object of NSMAL is to provide for the interests of Father’s descendents and for the welfare of its members.

7.  There is no dispute amongst the Siblings, that during the time when Father was alive, it was Father who made all decisions relating to the Family Companies, how they were run, and how the landed properties were held.  It would appear from the evidence that so far as paperwork was concerned, Father was assisted by Stephanie who is also a chartered secretary.  From the evidence of the Siblings, it would appear that Father would arrange for documents relating to the Family Companies, such as minutes of meetings, to be prepared and then signed by the Siblings and Mother.  It appears from the evidence that the Siblings and Mother would sign these documents as and when they were bidden to do so by Father, without question.  This was not surprising, because it is clear from the Siblings’ evidence that their Father was throughout very much in control of the Family Companies as well as the family assets, and also because the Siblings’ needs were all tended to by Father through his management and running of the Family Companies and the landed properties.  There was no reason, or need, to question Father.

8.  The focus of the family’s dispute is a restructuring of the Family Companies which is alleged to have taken place in April and May 1997.  What cannot be disputed is that on 8 May 1997, Father flew to Canada to receive surgery.  He was about 80 years old then, and it would have been natural for him to have had concerns in respect of the trip, and the medical treatment he was to receive. 

9.  The documents relied upon by Philip, Olympia, Tony and Stephanie (“the Philip Group”) reflect the following:

(1) In March 1997, Father set up CAGL, a BVI company.

(2) A corporate restructuring involving the Family Companies (“Restructuring”) took place, as a result of which the Family Companies (with the exception of NSMAL) became wholly owned subsidiaries of CAGL.

(3) The Restructuring involved firstly the allotment of 100 ordinary shares in each of HEL, HCL and HCIL to CAGL and Well Arts Enterprises Limited (“WA”); secondly the conversion of the ordinary shares held by the family members in the Family Companies into 5% deferred shares; and thirdly the transfer of these 5% deferred shares from the family members to CAGL for nominal consideration.

(4) In return for their transfer of shares to CAGL, the family held instead shares in CAGL, which in turn held shares in HCL, HEL, HCIL, Tarron and Evidence.

(5) Father then transferred the 20 shares in CAGL, which he held by virtue of the Restructuring, to his children.

10.  The documents which give effect to the Restructuring (“Restructuring Documents”) were signed by the relevant family members.  Essentially, they include for the 1^st stage minutes of board meetings recording board resolutions to convene extraordinary general meetings for the issue and allotment of shares to CAGL and WA; notice of the general meetings which was signed by the relevant shareholders to waive the notice requirement; minutes of general meetings recording ordinary resolutions for the issue and allotment of shares; applications of CAGL and WA for the allotted shares; return of allotments to the Companies Registry in respect of the allotment; and declarations of trust signed by WA declaring its holding of the shares allotted for CAGL. 

11.  For the 2^nd stage of the Restructuring, the Restructuring Documents include minutes of board meetings recording board resolutions to convene extraordinary general meetings to alter the articles of the relevant Family Company for the conversion of ordinary shares into 5% deferred shares, and inserting new provisions in the Articles to provide that the deferred shares shall not entitle the holders to receive notice of general meetings or to attend or vote at such meetings.  The notices of the general meetings contained the shareholders’ signature and agreement to waive the notice requirement for the meetings, and there were special resolutions signed by all the shareholders.

12.  At the 3^rd stage of the Restructuring, the Restructuring Documents include bought and sold notes with the accompanying instruments of transfer, to transfer the 5% deferred shares to CAGL, and minutes of board meetings recording board resolutions which approved the transfers of the deferred shares.

13.  As a result of the Restructuring, CAGL and WA (both offshore companies) became the only shareholders of HEL, HCL, HCIL, Tarron and Evidence, and the family members hold their interests in these companies through CAGL.

14.  In respect of the Restructuring, the Philip Group claim initially in their pleadings and witness statements that there were physical meetings held for the relevant Family Companies on the dates appearing on the relevant Restructuring Documents.  For the purpose of the trial of the proceedings before this Court, which commenced in January 2015, the Philip Group conceded that no physical meetings were in fact ever held, and that the Restructuring Documents had simply been circulated amongst the relevant family members for signing, and that they were in fact duly signed by all concerned.  On the other hand, Mother, Eleanor, Angela and Andrew claim that they had never signed the relevant Restructuring Documents on which their signatures appear, and that those signatures were all forgeries.  They deny that the Restructuring ever took place. 

15.  It should be stated that in HCA 523/2008 (“HCA 523”), Mother claimed that Father’s signatures appearing in the Restructuring Documents relating to the allotment of shares in HCL, HEL and HCIL to CAGL, and in the documents for the transfer of his shares in CAGL to his children, were all forgeries.  After a long trial in 2012, the learned trial judge held in his Judgment handed down on 30 November 2012 that he could not come to the conclusion that the resolution relied upon by the Philip Group as containing Father’s signature, and relating to the allotment, was forged (“Allotment Issue”).  However, the trial judge ruled in favor of Mother in relation to the dispute on Father’s transfer of his CAGL shares (“Transfer Issue”). The trial judge was not satisfied that Father had actually signed the relevant transfer documents, or if he did sign them, that he actually knew what they purported to be.  On appeal to the Court of Appeal, the trial judge’s decision on the Allotment Issue was confirmed, but his decision on the Transfer Issue was reversed. 

16.  By reason of the judgment of the Court of Appeal, in so far as documents relating to the allotment of shares in HCL, HEL and HCIL to CAGL are concerned, Father’s signatures can no longer be disputed in these proceedings.  Nor can Father’s transfer to his children of his shares in CAGL be disputed.  Such transfer has been held to be valid.

17.  The matters which do remain for determination in these proceedings are whether the signatures of Mother, Eleanor, Angela and Andrew as appearing on the Restructuring Documents are forgeries, as they allege, and whether the Restructuring Documents effectively implemented the Restructuring as the Philip Group allege. 

18.  According to the Combined Defence and Counterclaim of Mother, Angela and NSMAL (“Mother Group”), which was filed for the trial of HCA 51/2007, HCA 1040/2009 and HCA 1041/2009, Mother, Eleanor, Angela and Andrew did not sign the Restructuring Documents, which Restructuring Documents were forged, or invalid.  Mother and Angela claimed they only had knowledge of the alleged Restructuring in June 2005, when the Philip Group called for a meeting of CAGL, with the intention of selling the family assets.  Angela claims that the signatures appearing in the minutes of the meetings of HCL, allegedly held in May 1997, and in the instrument of transfer of her HCL shares to CAGL, are forgeries.

19.  Likewise, Eleanor denies that any Restructuring took place in 1997.  She claims that the signatures appearing in the minutes of the meetings allegedly held in May 1997 and purporting to be hers, and those of Mother and Andrew, were all forged.  She further denies that she had ever held any shares in HEL on trust, and claims that the signature purporting to be hers and appearing in the Declaration of Trust relating to 280 shares in HEL are also forged. 

20.  In gist, Andrew makes the same denials in relation to the signatures purporting to be his and appearing in the Restructuring Documents.  He also claims that the signatures purporting to be his and which appear in the Declaration of Trust relating to his shares in HEL and CAGL are forgeries.

The pleadings and the relief sought

21.  The trial before this Court relates to 3 sets of proceedings, ordered to be tried at the same time.  It was only on 12 February 2014, that I directed the parties to file combined pleadings to consolidate and summarize the issues which have been raised in the pleadings filed for the 3 sets of proceedings, and to focus on the precise matters required for determination at trial. 

22.  It was in 2004 to mid-2005 that disputes first erupted amongst the Siblings, as to expenses to be made by the Family Companies, and the shareholding in companies which hold some of the landed properties.  These led to further disputes as to the control of HEL (which hold the majority of the landed properties of the family) and as to its directorship, and HCA 51/2007 (“HCA 51”) was instituted by the Philip Group in January 2007, with Philip, CAGL and WA as plaintiffs, against Mother, Andrew, Eleanor and NSMAL as defendants. In HCA 51, the Philip Group dispute the validity of a meeting of the directors of HEL held by Mother, Eleanor and Andrew on 11 November 2005, whereby Angela was appointed as a director.  The relief claimed in HCA 51 was for (inter alia) a declaration that Philip is a director and CAGL and WA are the only ordinary members of HEL, that the defendants are not entitled to participate in any general meeting of HEL, that Angela is not a director of HEL, and that the resolutions passed at a purported general meeting of HEL in May 2006 (whereby Philip and Stephanie were removed as directors) are of no effect.

23.  By way of defence to the claims made in HCA 51, the Mother Group, Andrew and Eleanor referred to the Restructuring and the Restructuring Documents, and claimed that the resolutions passed at the general meetings of HEL in May 1997 (for the conversion of the ordinary shares of HEL into deferred shares with no voting rights, the transfer of shares to CAGL and WA, and the amendment of the Articles of HEL) were invalid.  In the Rejoinder, the defendants claim that Mother and Andrew had not attended any directors’ meeting in May 1997, that Mother, Angela, Andrew and Eleanor had not received any notice of the meetings held in May 1997 nor agreed to waive notice for such meetings, and that they had not signed the relevant Restructuring Documents (namely, the notices of the general meetings and the minutes of the directors’ meetings of HEL of May 1997). They further claim that the documents for the transfers of shares to CAGL were forged.

24.  HCA 1040/2009 (“HCA 1040”) was instituted in April 2009 by Mother, Eleanor and Andrew as plaintiffs against HCIL, CAGL, WA, Philip and Stephanie as defendants.  In these proceedings, the plaintiffs referred to the Restructuring, and claim that they did not execute any documentation for the transfer of the shares in HCIL to CAGL.  They claim that CAGL and WA are not shareholders of HCIL, as no share had ever been allotted to them, that the shares held by HCIL in CAGL had not been converted into 5% deferred shares, that there was no transfer of the plaintiffs’ shares in HCIL to CAGL, and that the plaintiffs as shareholders of HCIL were entitled to receive notice of and to attend and vote at general meetings of HCIL.  Declarations are sought in HCA 1040 that the resolutions passed in May 1997 for the Restructuring are invalid.

25.  Similar relief is sought by Mother, Eleanor, Angela and Andrew in respect of HCL, in HCA 1041/2009 (“HCA 1041”) which they instituted at the same time as HCA 1040. 

26.  From the pleadings filed in HCA 51, HCA 1040 and HCA 1041, there can be no doubt that the Mother Group, Eleanor and Andrew had raised, and expressly pleaded, the fact that the transfer documents are forged, that they never signed the relevant Restructuring Documents, and that there was no transfer of their shares (as recorded in the transfer documents which are part of the Restructuring Documents).  In HCA 1040 and HCA 1041 in particular, the plaintiffs sought to attack the validity of both the allotment of the HCL and HCIL shares to CAGL and the transfer of the shares from Mother, Eleanor and Andrew to CAGL, by claiming that the relevant transfer documents had not been executed by them.  This is tantamount to a claim of forgery.

27.  On behalf of the Mother Group, Mr Lung argued that in substance, it is the Philip Group who seek to rely on the Restructuring Documents to prove the Restructuring, by virtue of which the Philip Group obtained control of HEL, HCL and HCIL and under which CAGL and WA became the only shareholders of HEL with the right to vote (as they claim in HCA 51).  Hence, it was argued that the Philip Group bear the burden of proving that the Restructuring Documents on which they rely are genuine.  The Mother Group claim that at most, they bear the evidential burden only to adduce sufficiently cogent evidence to raise a case that the Restructuring Documents are not genuine.

28.  In each case, the pleadings must be reviewed to ascertain the issues raised by the parties in the action, and on which party the burden of proof of such issues falls.  On my review of the pleadings filed in these proceedings before me, it is the Mother Group, Eleanor and Andrew who plead and rely on forgery of their signatures, such that the persuasive burden of proving the forgery of the Restructuring Documents, and that the Restructuring in 1997 did not take place, lies on the Mother Group, Eleanor and Andrew. 

29.  At the end of the day, however, I agree with Mr Tang (who appears for Eleanor) that whether the Mother Group only bear the evidential burden of raising sufficiently cogent evidence of forgery, or the legal burden to establish such forgery, it is not likely to make a substantial practical difference in this case.  Even if it is for the Philip Group to prove the authenticity of the Restructuring Documents, I will have to be satisfied, to the requisite standard of proof (in view of the seriousness of the allegations made by the Mother Group, Eleanor and Andrew), that there is compelling evidence to lay the proper foundation for a definite conclusion and finding to be made that the Restructuring Documents contain forged signatures, or that it is more probable that the Restructuring Documents bear the genuine signatures of Mother, Eleanor, Angela and Andrew.

Applicable legal principles

30.  The basic and fundamental principle is that a person who signs a document is bound by his signature, and it is no defence for the person who signed to claim that he or she had not read the document, or did not understand the content of what had been signed - unless vitiating factors such as mistake, misrepresentation or lack of mental capacity can be established.  As Ribeiro PJ observed in Ming Shiu Chung v Ming Shiu Shum (2006) 9 HKCFAR 334, at 361:

“Reliance is universally placed on signatures appended to documents by persons of full age and understanding as signifying the signatory’s assent or adherence to what that document states. Where such a person has signed a document which purports to have legal effect, the law has never regarded it as enough to show that he signed without knowing its contents for the document to be disavowed. It is an everyday occurrence that people sign documents without reading the small (or even the large) print and therefore sign without actually knowing the terms (or all the terms) of the document signed. But they are held to the documents which they have chosen to sign unless there is shown to be a recognized legal basis for concluding that their apparent consent has been in some way vitiated or that reliance on that document by some other person falls into some category of unconscionable conduct justifying relief in equity.”

31.  In relation to claims of forgery and other serious misconduct (such as the tampering with documents), the authorities are clear.  The standard of proof applicable in civil cases involving allegations of the commission of a criminal offence is that the tribunal of fact has to be reasonably satisfied of the fact sought to be established, having regard to its gravity, though not with the degree of certainty which is required in criminal proceedings (HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336).  Inferences of fraud or serious misconduct are not to be reached by conjecture, nor on a mere balance of probabilities, they have to be plainly established as a matter of inference from proved fact. The court guards against drawing an inference where the primary evidence does not logically and reasonably justify such inference.  The court is not entitled to merely choose between guesses on the ground that one seems more likely than another.  (Ming Shiu Chung v Ming Shiu Shum (2006) 9 HKCFAR 334)

32.  The standard of proof in the context of forgery was further explained in Re H & Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 856, and cited in Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, at 560:

“The balance of probabilities standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in that particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. ... Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegations...

Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher.  It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred.  The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.  Ungoed-Thomas J expressed this neatly in Re Dellow’s Will Trusts [1964] 1WLR 451 at p 455: “The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.”

33.  The above cited observations are helpful in the assessment of the evidence and are pertinent to my decision in this case.

34.  I also bear in mind the observations made by Bokhary PJ in Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336, at 348:

“It is common to speak of a trial judge’s advantage of having ‘seen and heard’the witnesses... The words ‘seen and heard’ are perhaps capable of giving an exaggerated impression of the role which demean a place in the resolution of disputes of fact - demeanour being, as Lord Pearce put it in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at p 431, ‘mostly concerned with whether the witness appears to be telling the truth as he now believes it to be’. (Emphasis supplied)

Having said that about demeanour, I should make it clear that I accept that trial judges are entitled to take demeanour into account when assessing testimony. In life what really happened is not always what afterwards seems objectively probable. So demeanour has a role to play. Of course trial judges must bear in mind that demeanour can be deceptive and is therefore to be approached with care. In general, I would trust them to do that. Unless good reason to think otherwise appears, trial judges should be taken to have considered demeanour with caution, doing so only in the context of such inherent probabilities as may exist and the whole of the evidence.

It can of course happen that neither rival account is appreciably more inherently probable or improbable than the other, and there may be little or no evidence other than the testimony of the protagonists, each with an interest to serve.  In such a situation, there will be little or nothing for the fact-finding judge to go on apart from demeanour.”

35.  Besides the demeanour and credibility of the witnesses, other crucial considerations for the court include, of course, the inherent probability of the parties’ assertions, and whether these assertions are consistent with the parties’ conduct, the contemporaneous documents, and the undisputed or indisputable facts.  When considering the testimony of the witnesses in this case, I bear in mind that they are testifying as to events which took place in 1997, if not before.  The accuracy of the memory of witnesses as to events over 20 years ago has therefore to be approached with some caution.  Comparison with contemporaneous documentation, if any, is often an aid to the reliability of oral testimony, unless there is reason to believe that the documentation is contrived or materially incomplete, and in this case, many of the documents are claimed to have been tampered with.  Generally speaking, however, where the passage of time between events and trial is long, and where there is a host of contemporaneous documentation, it would usually be appropriate to place more reliance on contemporaneous documentation. 

36.  Due reminder should also be given to what was said by Peter Smith J in EPI Environment Technologies Inc & Anr v Symphony Plastic Technologies plc & Anr [2005] 1 WLR 3456, 3470-3471 at para 74, that it is essential to have regard to the entirety of a witness’s evidence.  As the learned judge observed, witnesses can make mistakes, but the mistakes do not necessarily affect other parts of their evidence.  Likewise, witnesses can regularly lie.  However, lies themselves do not mean necessarily that the entirety of that witness’s evidence is to be rejected.  A witness may lie in a stupid attempt to bolster his case, but the actual case may nevertheless remain good irrespective of the lie.

Were the relevant signatures forgeries?

37.  Father’s signatures on the Restructuring Documents have already been held in HCA 523 to be genuine.  Although Mother claimed in these proceedings before me that her signatures were forged, she has not been called to give evidence.  In deciding whether the Restructuring is effective, the key question to be determined is whether the signatures of Eleanor, Angela and Andrew which appear in the relevant Restructuring Documents are their genuine signatures, or whether they were forged.  Mr Tang, Counsel for Eleanor, emphasized that the final case of the Philip Group, as advanced at the trial of these proceedings, is that the shareholders of HEL, HCL and HCIL had “unanimously agreed” to, and resolved on, the Restructuring.  Hence, Mr Tang argued that so long as the Court can be satisfied that any one of the signatures on the Restructuring Documents is forged, there is no other evidence of unanimous consent and agreement to the alleged Restructuring.

38.  Both Counsel for the Mother Group and for Eleanor have emphasized that as distinct from the case of Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, which concerns inferences of forgery made by the court on circumstantial evidence, Eleanor, Angela and Andrew have given evidence in this case that they did not make the signatures which appear as theirs on the Restructuring Documents.  The Court can believe their evidence, or not.  It is all a question of the credibility and reliability of their evidence, as against the evidence of those in the Philip Group who claim to have witnessed their signing or who attest to their signatures, and against the totality of the evidence adduced.  At the trial of these proceedings, the parties have sensibly chosen not to dwell on many aspects of the evidence originally contained in the witness statements, which can only be described as peripheral, although sensational.  As is clear from the authorities, and as the Court of Appeal highlighted in its judgment in HCA 523, mere suspicion, questionable circumstances and conjecture as to the sources of the Restructuring Documents would not be sufficient to support a finding of forgery, in the ultimate assessment of the authenticity of the Restructuring Documents.

39.  In general, I do not find the evidence of Philip, Angela, Tony and Stephanie to be particularly impressive or entirely forthright.  They were evasive at different times on different aspects of their evidence, but this may be partly due to the fact that they have been embroiled in bitter (and unnecessary) litigation for a substantial period of time with members of their own family, and they may have preferred not to go into details of their unpleasant differences.  I do not believe Angela’s evidence to be credible, when she sought to distance herself from the “medical reports” or accounts of events prepared by Dr Woo, her husband.  Her claim that she only saw these for the first time when they were disclosed in the list of documents filed in 2012 is not only unbelievable, but also inconsistent with the fact that these “medical reports” had been exhibited to her own witness statement of 4 July 2011.  Philip in particular was often evasive in answering questions put to him in cross-examination.  His memory was selective as to events of the past.  Both Stephanie and Tony were keen to distance themselves from the Restructuring Documents and the details of the Restructuring, claiming that these were Father’s decisions, although this is inconsistent with claims made in their witness statements as to the extent to which Father had allegedly discussed, explained and made known the Restructuring details to them, and to the other Siblings.  The Philip Group’s change of case concerning the meetings which were originally alleged to have taken place, and the claims made in Stephanie’s witness statements as to how the meetings were held and attended, of course affect their general credibility.  As counsel for the Mother Group and for Eleanor pointed out, it was only after the witness statements of Eleanor, Angela and Andrew were filed in relation to the meetings, that the Philip Group amended their case to concede that there had  never been any meetings held, and consequently to admit to their untruthful accounts of the meetings.

Eleanor’s signatures

40.  The disputed signatures of Eleanor appear (for HEL) on the consent to short notice of the convening of the Extraordinary General Meeting (“EGM”) of 5 May 1997 (for the allotment of shares to CAGL and WA); the attendance list for the EGM held on 5 May 1997; the consent to short notice of the convening of the EGM of 7 May 1997 (for the conversion of shares into 5% deferred shares and the amendment of the Articles in respect thereof); the attendance list for the EGM held on 7 May 1997; and the instrument of transfer and sold note of 8 May 1997.  Eleanor’s signatures on the corresponding documents for HCL and HCIL are also claimed to be forgeries.  Eleanor further claims that she never signed the 2 Declarations of Trust dated 18 October 1985, whereby she purported to hold shares of HEL and HCIL on trust for Angela.

41.  Eleanor and Angela both claim that they knew nothing about the Restructuring which took place in 1997.  On their case, they only found out about CAGL in 2005, long after Father’s death in 2002.  It was when Philip called for a meeting of CAGL in June 2005, to consider selling the landed properties held by the Family Companies, that Eleanor sought legal advice and raised questions about the shares in CAGL. 

42.  The originally pleaded case of the Philip Group is that the resolutions regarding the Restructuring were passed at directors’ meetings which were physically attended by Father, Philip, Mother and Stephanie, and at shareholders’ meetings physically attended by Father, Mother, Philip, Eleanor, Stephanie and Andrew, and by Angela and Olympia in respect of HCL.  This is also clear from the witness statement of Stephanie.  On the eve of trial in HCA 523, supplemental witness statements were filed by the Philip Group, the effect of which is to claim instead that the relevant Restructuring Documents were circulated amongst and signed by the relevant members of the family, instead of there having been meetings held.  The combined Statement of Claim for HCA 51, HCA 1040 and HCA 1041 confirms this changed case regarding the circulation of the Restructuring Documents for signature, as opposed to the physical attendance of the family members at meetings which were held.  According to the Combined Statement of Claim, the Restructuring Documents were: signed in Hong Kong by Father before Stephanie in Father’s office, signed by Stephanie before Father at Father’s office, signed by Philip before Stephanie in her office, signed by Eleanor before Stephanie in Stephanie’s office, and signed by Mother at home in Hong Kong before Stephanie and Philip.  The Restructuring Documents were then dispatched to Vancouver, where they were signed by Olympia before Father at Eleanor’s house in Vancouver, then signed by Andrew and Angela in Vancouver, and then taken to Hong Kong by Andrew, and returned to Stephanie.  The Mother Group, Eleanor and Andrew regard this volte-face as indicative of the weakness, and lack of veracity, of the Philip Group case on the entire Restructuring, and supporting as they claim that the alleged meetings never took place.

43.  Whilst claiming that the relevant disputed signatures were not in fact theirs, Eleanor, Angela and Andrew all accept that the relevant signatures do closely resemble theirs.

44.  According to Eleanor, the signatures “Eleanor Ng” which appear in the relevant Restructuring Documents were not in fact hers, because she only signed “Ng Yiu Chi” for the Family Companies, a pattern or practice which she had started since 1965, when HCL was set up and Father had asked her to sign documents for HCL as “Ng Yiu Chi”.  On Eleanor’s case, she signed “Ng Yiu Chi” on all documents which relate to the Family Companies, and signed “Eleanor Ng” only on documents which relate to her own companies, or companies owned jointly by her husband and herself, and for her personal matters (“Signature Pattern”). She claimed that she had used the name “Eleanor” since her high school days in Hong Kong, and before she went to Canada for University in 1967, but that Father had told her to sign as “Ng Yiu Chi” when HCL was set up in 1965, and since then, she had done so for all the Family Companies owned by Father.  Eleanor also explained that when she and her husband set up their own companies in the 1980s, she had wanted to differentiate her own companies from the Family Companies, by signing “Eleanor Ng” for the former, and retaining her “Ng Yiu Chi” signature for the Family Companies as Father had bidden her to do.  Eleanor claims that the only occasion when she had made a mistake was when she signed “Eleanor Ng Yiu Chi” on a document for HEL’s appointment of first directors in March 1976.  She could recall this mistake, since her father had reprimanded her for doing so, and had told her that she should have signed “Ng Yiu Chi”.

45.  Eleanor has struck me as a forthright and honest witness.  In cross-examination, she answered Counsel’s questions directly, and overall, I do not consider that she had lied or made up evidence.  As her Counsel emphasized, Eleanor had no motive or reason to lie about the Restructuring, since she had more to gain in terms of her share of the total value of the assets of the Family Companies under the Restructuring.  She honestly believed that the relevant Restructuring Documents were not signed by her.  The gist of her evidence, when asked why she could conclude that the relevant minutes (or list of attendance), the consent to short notice and the share transfers were not in fact signed by her, is firstly, the fact that “Eleanor Ng” was signed on the documents of HEL, HCL and HCIL which is against her Signature Pattern, and secondly, the content of these documents, as she would not have signed them when she knew nothing about CAGL to whom her shares were purportedly transferred.

46.  In deciding whether Eleanor’s evidence is to be accepted as reliable, it must be tested and considered against the totality of the documentary evidence, and particularly, against the inherent probabilities of her case, bearing in mind the improbability of the commission of a serious wrongdoing (as asserted), namely, the forgery of a series of documents which span over a period of time from 1985 until 2005, involving more than 280 documents, if the evidence of Eleanor, Andrew and Angela is to be believed.

47.  Eleanor’s Signature Pattern, which does not apply only to the Restructuring Documents but to all documents of the Family Companies, cannot explain the signatures of Eleanor which appear in: the appointment of HEL’s first directors of 23 March 1976; the minutes of the EGM of HEL dated 8 October 1985 which relate to the allotment of HEL shares to Philip, Eleanor, Stephanie and Andrew; the 18 October 1985 declarations in respect of the shares in HCIL being held on trust for Angela; the undated application for the allotment of 100 HEL shares to Eleanor; and the 21 October 1985 declarations in respect of HEL shares being held on trust for Angela.  According to the Signature Pattern, these documents which relate to the Family Companies should have been signed “Ng Yiu Chee”, but were in fact signed “Eleanor Ng”.

48.  The first of the above mentioned document, the appointment of directors of 23 March 1976, was explained by Eleanor as a mistake she made, and which had been pointed out to her by Father.  She disclaims the Declarations of Trust bearing the “Eleanor” signature, and denies that Father had ever told her that she held any shares in the Family Companies on trust for anyone.  She denies that the “Eleanor” signatures on the application for allotment of 100 HEL shares, and the related minutes in respect of the allotment, were hers, although she does claim and relies on her holding and ownership of the 100 HEL shares.

Angela’s signatures

49.  Of the Restructuring, Angela disputes the signatures which purport to be hers and which appear on the consent to short notice for the EGMs of HCL for 5 May and 7 May 1997, the attendance lists for such EGMs, and the instrument of transfer and sold note of 8 May 1997. She also disputes the Declaration of Trust dated 3 March 1997 in respect of 8 CAGL shares which Stephanie declares to hold on trust for her.  She simply claims that she knew nothing about CAGL, the Restructuring, any shares being held on trust, or any documents or meetings which had to do with CAGL or which concerned the Restructuring. She denies that any meeting of the Family Companies had been held in May 1997, as she was not in Hong Kong and could not have attended any meeting as claimed in the documents. She further pointed to matters which show that the Restructuring Documents could not have been signed by her and by the family members in Canada, on the dates shown in the documents. The observations made in the preceding paragraphs, as to the need to test the witness’s claim of forgery of the disputed signatures against the inherent probabilities and improbabilities of the case as well as the contemporaneous documents, equally apply to Angela’s case.

Andrew’s signatures

50.  Andrew disputes the same Restructuring Documents referred to in paragraph 40 above, as well as the Declarations of Trust dated October 1985 and November 2000 under which he purportedly holds HEL and CAGL shares for Tony and Jeremy.

51.  Andrew has no legal representation in these proceedings, and to that extent, I gave him more leeway in respect of procedural matters such as failing to file notices to dispute the authenticity of all the documents he sought to challenge.  Nevertheless, his continuous change of case in relation to the documents which he claims to be forgeries greatly affects his credibility, and significantly, reflects his readiness to disclaim any document which may not assist his case on the Restructuring.  He has disputed contemporaneous documents which show his involvement in HEL, such as financial statements of HEL which he signed from 2002 to 2005, tax returns of HEL for 2003 and HCL for 2002 to 2004, which he signed and had sent to the Inland Revenue Department, as well as employers returns which he had signed for HEL and HCL in 2003 and 2004. 

52.  The audited financial statements of HEL for the years ending 31 March 2002, 2003, 2004 and 2005 all bear Andrew’s signatures.  Andrew claims that these signatures of his on the accounts were forged, and that in respect of the 2005 accounts, they had been shown to him but he had not signed them, after showing them to Eleanor.  The notes to the accounts state that the directors of HEL regard CAGL as its ultimate holding company.  These accounts were filed with the authorities before the disputes between the Siblings arose.

The probabilities of the Restructuring

53.  The whole basis of the claims made by Eleanor, Angela and Andrew, that the Restructuring Documents are forged by the Philip Group, is that the Philip Group wish to wrestle control of the Family Companies after Father’s death, to manipulate for the sale and division of the landed properties against Mother’s wishes, and otherwise to further the interests and benefits of the Philip Group.

54.  One undisputed aspect of the case is that during Father’s life, it was Father who had controlled the Family Companies, made the decisions concerning the Family Companies and the family assets including the landed properties, and that the Siblings would not question Father’s decisions, but simply did as they were told, including signing documents presented to them by Father, with questions seldom asked, if ever.  This is demonstrated by Eleanor’s reference to the Family Companies as “Father’s companies”.  Angela likewise claimed that Father made all the decisions regarding the Family Companies, and that even after his surgery in 1997, Father was still “the boss” who controlled all the Family Companies and the landed properties.  It is also clear from the evidence of Olympia and Angela, that for different reasons, the daughters who were married and/or who resided in Canada never took any active involvement, or interest, in the running or the affairs of the Family Companies, apart from signing documents when Father bid them to do so.  Olympia expressly states in her evidence that she did not pay attention to Father’s companies, and was indifferent as to what assets Father might give her.  On Angela’s case, she was diagnosed with cancer in 1998, was under intensive medication for 10 years and did not travel to Hong Kong at all during that period.  Nor does it appear that even Philip had any dominant role to play in how the Family Companies were to be run.  From the totality of the evidence it does not appear to be likely that Father would have consulted Philip, the married daughters, or any of the Siblings in detail, in relation to the Restructuring.  Due to their lack of involvement in the Family Companies, it is not surprising that Eleanor and Angela would not have become aware, or heard, of CAGL, particularly if they had simply signed the documents which Father (“the boss”) had told them to sign, for “Father’s companies”.

55.  For the reason that Father had been in full control of the Family Companies, I consider that Eleanor’s disclaimer of the 1985 HEL allotment documents, and her and Andrew’s disclaimer of the Declarations of Trust of 1985 as forgeries are not believable.  In 1985, Father was well and alive, unplagued by any of the health issues which concerned him and the family in early 1997, and firmly held the reins of the Family Companies and the entire family.  The evidence is clear, that he was fully hands-on in relation to the operation and use of the Family Companies, and that he remained so even after his recovery in 1997, until his death in 2002.

56.  It is highly improbable that any of the Siblings would have attempted to forge any document concerning the Family Companies, or to file with the Companies Registry documents or returns which do not reflect the true status of the Family Companies, as these would all very likely have come to Father’s attention.  The allotment of HEL shares to Philip, Eleanor, Stephanie and Andrew in 1985, and the substance of the Restructuring of HEL, HCIL and HCL in 1997, were reflected in the returns filed at the Companies Registry (as evidenced by the contemporaneous filing chops of the Registry) between the date of the Restructuring in 1997 and Father’s death in 2002, and many of them were signed by Father himself.  The Declarations of Trusts of 1985, which are disputed by Eleanor and Andrew as forgeries, are likewise stamped at the Stamp Office in 1985.  The financial statements for the Family Companies before 2002, which were signed by Father, also evidence the Restructuring, with references to the share capital composition and to the 5% deferred shares, and to CAGL being the ultimate holding company.  A members’ resolution of HEL dated 27 April 1999, which was signed by Father, further evidences CAGL and WA as members of HEL, pursuant to the Restructuring.

57.  If there had been any inaccurate information reflected in the corporate and public documents of the Family Companies, it is highly unlikely that they would have escaped Father’s attention and not been rectified.  As Ms Cheng SC, Leading Counsel for the Philip Group, repeatedly pointed out, it has been conclusively determined in HCA 523 (in which handwriting expert evidence had been adduced) that Father had signed the relevant Restructuring Documents, and the Mother Group, Eleanor and Andrew can no longer claim that the Restructuring Documents were signed by Father without full knowledge of their contents.

58.  To the extent that Andrew sought to challenge the authenticity of the contemporaneous documents filed at the Companies Registry and with the Stamp Office, I reject these as incredulous, particularly in view of the correspondence from the Stamp Office.

59.  Pertinently, the Declarations of Trust are supported and evidenced by the handwritten chart and notes made by Father, in relation to the shares in HEL, the allotment made in May 1990, and the shareholding amongst Mother and the Siblings, which reflect the number of shares held by Andrew for Tony and Jeremy, and their respective families, and the shares held by Eleanor for Angela.

60.  Although it is true that the Family became bitterly divided since around 2004/2005, and more so after the commencement of legal proceedings, it is highly improbable that the Philip Group would have gone to the extent of forging chops of the Stamp Office or of the Companies Registry on the disputed documents back in 1985, or 1997, before Father’s death, and before the disputes and any of the court proceedings had come to light. 

61.  There are also inherent improbabilities in the implications of the case advanced by Eleanor, Angela and Andrew, that as early as in 1997, the Philip Group had already formed a close alliance, and that the grand scale forgery scheme had been planned and was in place by then, such that the Philip Group would have at that early stage procured forgeries of the signatures of their Mother, siblings and even Father (as suggested) in documents supporting the Restructuring, without contemplating any risk of exposure of the scheme to Father, Mother and the other Siblings.  The Philip Group pointed out that in reality, Olympia had kept out of the dispute until 2007, and Father’s transfer of his 20 shares, and the effect this had on the control of the Family Companies, was not known until after his death in 2002.  The risks of the forgery being exposed, when the alliance amongst the accomplices was not even formed, were indeed high.

62.  Apart from the fact that the Declarations of Trusts bear the contemporaneous stamps of the public authorities, and are supported by Father’s handwritten notes, the proposition put forward by the Mother Group, Eleanor and Andrew, that there were no trust arrangements in respect of the HEL and HCIL shares, can further be seen to be improbable when the distribution of shareholding of the Family Companies is considered.  It does not appear to be disputed that Father was a fair patriarch, and that he intended his family, and his descendents, to share in the assets which he had accumulated over the years.  If there was no trust arrangement in respect of the shareholding in HEL, Angela, Olympia, Tony and Jeremy would have no shares at all in HEL, when HEL is the Family Company which holds the bulk of the family’s landed properties, while Andrew would have a disproportionately large number of shares in HEL.  No explanation has been offered by any party (except for Andrew’s surmise, that he was “the most useless” of the Siblings).  Ms Cheng highlighted the fact that if there was no Restructuring and no trust arrangements in place (as claimed by Eleanor, Angela and Andrew), the result would be that each of Angela, Tony and Jeremy would have a meagre 1.71% interest in HEL, whereas Andrew would by contrast have 17.79%, which does not appear to make sense, when all the Siblings seem to agree, at least, that Father was a fair person who had given relatively equal treatment to his children.  Prior to the Restructuring, the distribution of the shares in the Family Companies amongst the sons on the one hand, and the daughters on the other hand, had largely been the same (with Philip being given preferential treatment as the eldest son).  In contrast to the case advanced by Eleanor, Angela and Andrew, if the trust arrangements asserted by the Philip Group and evidenced by the Declarations of Trust are accepted, each of the Siblings was allocated 280 shares in HEL, with Philip (the eldest son) holding a double amount of 580 shares, and each of the wives of the married sons (Tony and Jeremy) was allotted 140 shares each, with the paternal grandchildren allocated 70 shares each, save that the eldest grandson was given a double amount of 140 shares.  Such trust arrangement for HEL mirrors the trust situation over the initial allotment of CAGL’s shares, with shares being held on trust for the 3 professional accountants of the family (Angela, Tony and Jeremy).  Ms Cheng further pointed out that the trusts in respect of the HCL shares were not in fact disputed by the Mother Group, who claim in HCA 1041 that Stephanie holds 250 shares of HCL for each of Tony and Jeremy.

63.  On the totality of all the evidence, I am satisfied that the Declarations of Trust are genuine documents which bear the signatures of Eleanor and Andrew.

64.  Is there any other probable explanation for the appearance of the “Eleanor Ng” signatures in the documents disavowed by Eleanor, other than the inherently improbable occurrence of a large scale forgery, against the contradictions referred to in the preceding paragraphs? As the court reminded all in Re H & Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, “fraud is usually less likely than negligence”.  In my view, the equally if not more probable explanation is that Eleanor had indeed signed those disputed signatures, notwithstanding her Signature Pattern, and by mistake, as she had done so for the 1976 appointment of HEL directors.  “Eleanor Ng” is indeed her name, and it would have been natural for her to have signed so on any document.  It is not easy, if at all possible, to remember each and every document one has signed over a span of 40 years.  It would be easy for Eleanor to have forgotten that she had indeed signed on the Declarations of Trust and on the Restructuring Documents.  She, like her other Siblings, simply trusted her Father with regard to his management of the family assets and the running of the Family Companies and how they were used, and was accustomed to being asked to sign documents which relate to the Family Companies, on the basis that they were Father’s companies, or were Father’s wishes or decisions for the Family Companies, and it is inherently probable that she might not have read the entire contents of the Restructuring Documents when they were given to her to sign, and had simply put her signature to the documents she was told to sign for these Family Companies.

65.  I find it improbable that someone would have forged Andrew’s signatures on the accounts of HEL.  If, as the Mother Group claim, the Philip Group had deliberately kept the Restructuring and Father’s transfer of his shares in CAGL from the rest of the family, it was unlikely that the auditors’ reports and the accounts would have been given or shown to Andrew for his signature.

66.  Andrew’s attempts to distance himself from the documents and operations of HEL, and the many inconsistencies in his evidence make him an unreliable witness.  His assertions as to the forged signatures are not supported by any other credible independent evidence, apart from his suspicions and mistrust of his siblings.  The contemporaneous documents contradict his assertions, and I reject his claims that the signatures which he disputes are not his.

67.  The Philip Group accept that contrary to what the Restructuring Documents and their witness statements suggest, no meeting had actually been held in May 1997.  The Mother Group accept that the only time the family had gathered for any meeting of the Family Companies was in 2005.  Considering how private family companies in Hong Kong are usually managed, I accept as highly likely that the Restructuring Documents were only circulated amongst the family members in around May 1997, for their signature on the documents which were prepared in the usual way by Stephanie and/or her staff, and for dates to be put on the documents at random.  I can find nothing suspicious in the choice of preparing minutes of the meetings, as opposed to written resolutions for signature by the shareholders.  It is more probable than not that the minutes of the HEL EGM of 8 October 1985 (in respect of the allotment of HEL shares) were likewise circulated for signature by the family members, with no physical meeting having been held.

68.  The real substance of Angela’s disclaimer of the signatures which appear as hers on the Restructuring Documents is that the purported meetings referred to therein were not, and could not have been, held on the dates in question. For the reasons set out in the preceding paragraphs, I find it more probable that the Restructuring Documents were circulated amongst the family members for their signature in around May 1997.   All other circumstances referred to by the Mother Group, Andrew and Eleanor, as to Tony’s false marriage certificate, the absence of the original documents, the dates put on the Restructuring Documents, are only suspicious matters which, at most, serve in raising a case that the documents may not be genuine.  In my view, having regard to the contemporaneous documents and the inherent probabilities and improbabilities of the case, they are not sufficiently cogent to lead to a clear conclusion of forgery on any proved facts.

69.  I accept the submissions made on behalf of the Philip Group, that the Restructuring did not lead to any significant redistribution of wealth amongst the family members, a fact which adds to the inherent improbabilities of anyone embarking on a scheme to forge the Restructuring Documents and taking the inherent risks.  The tables and figures compiled by the Philip Group demonstrate that under the 1997 Restructuring and the Declarations of Trusts of HEL, HCL and HCIL asserted by the Philip Group, the position of all members of the family (with the exception of Stephanie) generally improved, as a result of Father and NSMAL giving up shares.  By the time of closing submissions, the Mother Group accepted this, when they explained that the only difference under the Restructuring is that control of the Family Companies has become vested in the Philip Group.  The Philip Group highlighted the fact that even after Father’s death, Mother had still been properly maintained and when Philip planned in 2005 to sell off the family’s landed properties, he had included provisions which protected Mother and aimed to preserve the status quo so far as Mother’s maintenance was concerned.  The Philip Group claim that Mother’s maintenance was only adversely affected when legal proceedings were instituted and the bank was alerted to the competing claims made to the companies which resulted in the relevant bank accounts of HEL being frozen.  It is clear that consequently to that, the opposing camps refused to act sensibly to resolve matters regarding Mother’s maintenance pending the resolution of the legal disputes.

70.  In any event, the Court of Appeal has pointed out in its judgment in HCA 523 (para 70) that while there is no dispute that Father had intended to provide for Mother, such intention had never been achieved by giving Mother the majority shareholding in the Family Companies.  The argument that the reduction of Mother’s shareholding in the Family Companies shows a downgrading of Father’s regard for her, is unsustainable according to the Court of Appeal, and in my view, does not assist the argument that the Restructuring is improbable.

71.  It is probable that the Restructuring was planned and implemented by Father, an experienced accountant and tax expert, with the aim of saving estate duty.  Whether such aim would actually succeed in estate duty and/or stamp duty saving is not as relevant for the determination of whether the Restructuring Documents are genuine and whether the Restructuring took place.  On all the evidence, and having due regard to the inherent probabilities and improbabilities of the case, I am satisfied that the Restructuring Documents bear the genuine signatures of Eleanor, Angela and Andrew.  Mother’s claims of the forgery of her signatures are rejected, for lack of any further evidence from Mother.

Whether the Restructuring Documents give effect to the Restructuring

72.  Having found in this case that the signatures of Eleanor, Angela and Andrew appearing on the Restructuring Documents are genuine, they must be bound by what they signed - whether or not they had read these documents, or understood the contents.  There is no plea of non est factum, mistake, misrepresentation or any other vitiating factor.  Eleanor, the Mother Group and Andrew accept that the family had never, before 2005, sat down for any meeting of the Family Companies, although it is clear that the corporate documents in evidence record that meetings had been held, and resolutions made at meetings of the Family Companies since the 1960s until 2005.  This can only mean that the family had accepted the practice of documents being signed in lieu of meetings, and had indeed acted on such practice and documents as signed, for allotment of shares, appointment of directors, etc. 

73.  Although Eleanor, Angela and Andrew only signed on the consent to the short notice for convening the relevant EGM, and on the Attendance List at the end of the minutes of the relevant EGM, I am satisfied that their signatures must mean that they agreed and consented to the contents of the minutes as well. As Ms Cheng pointed out, they also signed on the instruments of transfer for the transfer of the 5% deferred shares to CAGL.  Considering the substance and contents of the minutes of the meetings as a whole, I accept that the signatures of all the shareholders on the Attendance Lists signify and express their consent to, and their knowledge of, the contents of the minutes of which the Attendance Lists form part.  By their signature and their conduct, I am satisfied that all the shareholders of the Family Companies, including Eleanor, Angela and Andrew, have indicated their consent to the matters recorded in the Restructuring Documents which constitute and give effect to the Restructuring (In re Duomatic Ltd [1969] 2 Ch 365).

74.  The Mother Group and Eleanor have confirmed that they do not pursue the issues raised in their pleadings, as to the variation of their class rights, the lack of authority and the absence of consideration for the conversion of their shares into deferred shares.  The parties do not dispute that if the Restructuring Documents are effective, the purported meetings of HEL held in 2005 and 2006 (the subject matter of HCA 51) will have no effect.

Orders made

75.  For all the above reasons, I give judgment in favor of the Philip Group in HCA 51, and dismiss the claims made by the Mother Group, Eleanor and Andrew in HCA 1040 and 1041.  The parties should agree on and submit the draft orders to be made in the consolidated proceedings.

76.  The 3^rd Supplemental witness statement of Andrew was not permitted to be filed and put in evidence, upon objections made by the Philip Group.  The questions put to Andrew in the course of his cross-examination by Ms Cheng, and the answers given by Andrew, on the basis of the said supplemental statement, have not been considered at all.

77.  I make an order nisi that the costs of the 3 actions are to be paid to the Philip Group, with certificate for 2 counsel.