HUANG LI v. HADY HARTANTO AND OTHERS

HCA 2322/2014

[2018] HKCFI 237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2322 OF 2014

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DECISION

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1.  The 1^st and 2^nd defendants applied for leave to appeal my order, made on 7 June 2017, dismissing their respective applications for a stay of these proceedings on the ground of forum non conveniens. I have decided not to grant leave for the reasons set out below.

2.  Pursuant to section 14 of the High Court Ordinance, Cap 4, leave to appeal shall not be granted unless I am satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.  The prospects of succeeding must be reasonable, therefore more than fanciful, without having to be probable.  Even if the threshold is met, I still retain a discretion whether to grant leave and I might refuse leave in the interests of procedural economy and proportionality.  (Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887, at §§29 and 30)

3.  The defendants accept that my order was made in the exercise of discretion and that leave to appeal would only be granted if: (1) I had misdirected myself with regard to principle; (2) I had taken into account matters which I ought not to have taken into account or that I had failed to take into account matters which I ought to have taken into account; or (3) my decision is plainly wrong.  (Dynasty Line Ltd v Sukamto Sia [2009] 4 HKLRD 454 at §68)

4.  The first ground of appeal set out in the draft Notice of Appeal is that I did not give any significant weight to Clause 12 of a sale and purchase agreement, which is a subject of this action (“the Agreement”).  Clause 12 is a non-exclusive jurisdiction clause, naming Singapore.  The defendants submitted that I simply loaded up certain other factors, which were relied upon by the plaintiff as more significant factors in favour of Hong Kong as the more appropriate forum.  The defendants submitted that these other factors are either irrelevant or insignificant.  In any event, the defendants submitted, I did not hold that those factors were more significant than Clause 12.

5.  I do not consider this ground has reasonable prospects of success.  In paragraph 38 of my Decision, dated 7 June 2017, I stated that I considered “… Clause 12 and the agreed governing law and nominated jurisdiction to be factors, which are significant connecting factors, pointing in favour of Singapore as the natural and appropriate forum for the resolution of this dispute.”

6.  However, with regard to other factors, which I set out in paragraph 41 of my Decision, I considered that “… notwithstanding the significance of Clause 12, there are other factors which tilt the balance in favour of Hong Kong as the more appropriate forum.”  After setting out those factors in paragraph 41, I concluded: “In my view, [the other factors] are more significant factors in the context of this case than those relied upon by the 2^nd defendant ….”

7.  I refer to paragraphs 13 to 45 of my Decision. I have given proper, significant weight to Clause 12.  I have considered the various factors which each party submitted demonstrated the appropriateness of either Singapore or Hong Kong as the forum.  I was reminded, as set out in paragraph 12 of my Decision, that, in respect of an application based on forum non conveniens, the question to be decided was whether Hong Kong is another available forum, having competent jurisdiction, which is the appropriate forum for the trial, ie, in which the action may be tried more suitably for the interests of the parties and the ends of justice.

8.  I was also reminded, as set out in paragraph 12 of my Decision,that the defendants had to establish that first, Hong Kong is not the natural or appropriate forum (“appropriate” meaning the forum has the most real and substantial connection with the action) and second, there is another available forum, which is clearly or more distinctly more appropriate than Hong Kong.  In paragraph 45 of my Decision, I concluded: “Accordingly, the 2^nd defendant has failed to establish that Hong Kong is not the appropriate forum and that Singapore is clearly or distinctly more appropriate than Hong Kong.  …”

9.  The second ground of appeal is that I erred in holding that the plaintiff bringing this action in Hong Kong as of right is a significant factor in itself which tilts the balance in favour of Hong Kong as the more appropriate forum.  The defendants submitted the following.  Service in Hong Kong does not by itself constitute a connecting factor in favour of Hong Kong.  It is an inherent feature in every stay application on the ground of forum non conveniens that the plaintiff brings the action in Hong Kong as of right.  Such feature has already been reflected in the starting point of a stay application by placing the burden on the defendants to show a more appropriate forum.  It is not an additional, independent connecting factor in favour of Hong Kong.

10.  For the following reason, I do not consider the second ground of appeal has a reasonable prospect of success.  The consideration of the right to bring an action should not be confined to establishing where the burden lies.  In my view, because it is a right to bring an action in a particular jurisdiction, it is also a factor to be considered when determining which jurisdiction has the most real and substantial connection with the action.    Lok J in High Hope Zhongding Corporation v廈門墩峰進出口有限公司, unreported, HCA 2485/2015, 16 January 2017, §§37 – 41, when considering which forum had the most real and substantial connection with the action, emphasized that an action commenced as of right should not be lightly dislodged and must be given recognition.  His Lordship observed that, where a jurisdiction is established as of right, considerable weight and serious recognition should be given to that right.

11.  The third ground of appeal is that I erred in holding that the factors set out in paragraph 41 of my Decision, are independent connectingfactors in favour of Hong Kong.  The defendants submitted that, by the time the plaintiff executed the Agreement and agreed to Clause 12, she must have taken into consideration: (1) that both she and the 1^st defendant are Hong Kong residents; (2) the witnesses who can be identified are Hong Kong residents; (3) alleged representations were made in Wanchai; and (4) money would be paid into a Hong Kong bank account and money paid out of that account.  The defendants submitted that, as the plaintiff had considered those factors before executing the Agreement, they must be subsumed in her agreement to Clause 12 and do not give rise to independent connecting factors in favour of Hong Kong in the context of this case.  No authority was cited in support of this proposition. 

12.  Mr Leung SC, for the plaintiff, did not accept that the plaintiff addressed her mind to jurisdiction and he referred me to paragraphs 9 and 10 of the 1^st defendant’s fourth affirmation, which state, in essence, that neither the plaintiff nor the 2^nd defendant gave consideration to the Hong Kong courts as an appropriate forum.

13.  It is not possible to resolve at this stage, and on an affirmation alone, whether the plaintiff turned her mind to which would be the more appropriate forum, Hong Kong or Singapore, but having agreed to submit to the jurisdiction of Singapore, she must be taken to have recognized that Singapore must be an appropriate forum for the trial of this action.  (Noble Power Investments Ltd v Nissei Stomach Tokyo Co Ltd [2008] 5 HKLRD 631, §28)

14.  The defendants also submitted that any contractual party mayescape from her contractual bargain on jurisdiction by simply pointing to pre-‌contractual matters as “strong reasons” to establish an “exceptional case” where the contractual bargain may be ignored.  The defendants submitted this would effectively render the validity of all jurisdiction clauses in international contracts uncertain and open to argument and could not have been the intention of the parties when agreeing to a jurisdiction clause.

15.  I do not consider the third ground of appeal has a reasonable prospect of success.  As I noted above, a party must be taken to have recognized that the named forum must be an appropriate forum for the trial of this action.  The authorities have not gone further to conclude that a party must be taken to have recognized that a named jurisdiction is the appropriate forum.

16.  A non-exclusive jurisdiction clause, such as Clause 12, leaves the parties free to bring proceedings elsewhere without committing any breach of contract.  A non-exclusive jurisdiction clause is a contract by each party to submit to the jurisdiction of a named forum if the other chooses to bring an action in the named forum.  Although neither party binds itself to bring an action in the named forum, each of them does agree to submit to the jurisdiction if an action is brought against it in the named forum.  (Noble Power Investments Ltd v Nissei Stomach Tokyo Co Ltd, supra, §§27 – 28)

17.  The difference in principle between an exclusive jurisdiction clause and a non-exclusive jurisdiction clause is that, in the former case both parties are contractually bound to the chosen forum whereas in the latter case only the defendant is so bound.  (Noble Power Investments Ltd v Nissei Stomach Tokyo Co Ltd, supra, §29)

18.  A defendant seeking a stay of proceedings brought in a named non-exclusive jurisdiction is required to demonstrate strong reasons or an exceptional case establishing another jurisdiction as the appropriate forum.  On the other hand, proceedings brought in a jurisdiction other than the named non-exclusive jurisdiction may be stayed upon application of the principles of forum non conveniens, after considering whether there are connecting factors which indicate that there is another available forum which is clearly or distinctly more appropriate than the named jurisdiction and in which the case may be tried more suitably for the interests of the parties and for the ends of justice.

19.  Noble Power Investments Ltd v Nissei Stomach Tokyo Co Ltd concerned a non-exclusive jurisdiction clause which provided that the parties submitted to the non-exclusive jurisdiction of Hong Hong.  The plaintiff issued proceedings in Hong Kong, which a Recorder set aside upon the defendant’s application, approaching the application on the basis of forum non conveniens, weighing up the connecting factors and holding that Japan was the more appropriate forum.  The Court of Appeal allowed the plaintiff’s appeal, holding that, in approaching the matter on the basis of forum non conveniens, the Recorder had not taken the correct approach:  it was not a matter of weighing up the connecting factors to determine whether there existed another forum which was clearly or distinctly more appropriate.  The defendant had to demonstrate strong reasons or exceptional circumstances which allowed it to escape the effect of the non-exclusive jurisdiction clause.

20.  Ma CJHC (as he then was) set out in paragraph 33 of the judgment three illustrations of situations concerning non-exclusive jurisdiction clauses.  The situations described in paragraph 33(1) and (3) are relevant:

“ (1) A sues B in Hong Kong. Hong Kong is named as a non-exclusive jurisdiction to which the parties have agreed to submit in the event of their being sued. The burden on B, if he contests the appropriateness of the Hong Kong courts, is a heavy one.

…

(3) A sues B in Hong Kong.  …, Hong Kong is not named as the non-‌ exclusive jurisdiction but the courts of Japan are.  … the parties have not agreed to submit to any jurisdiction other than the Japanese courts.  In other words, while the parties have agreed to submit to Japanese jurisdiction in the event that they are sued there, and while they have also agreed that they are at liberty to institute proceedings in a jurisdiction other than Japan, no positive obligation exists for a party to submit to any jurisdiction other than Japan.  Here, the burden on B is less heavy.”

21.  In respect of the example in paragraph 33(1), the Chief Judge set out the following approach:

“ 35. … It is clear in my view that where, as in the present case, proceedings are commenced in Hong Kong and the courts here are named as a non-exclusive jurisdiction to which the parties are contractually bound to submit in the event they are sued here (in other words, the para.33(1) situation), strong reasons must be shown by the party sued if he wishes to challenge the appropriateness of Hong Kong jurisdiction.

36. The extent of the burden can be put in several ways but the following provides a ready guide: strong or overwhelming reasons or exceptional circumstances must be shown, such as the existence of factors not contemplated by the parties at the time the relevant agreement was made. … strong reasons must be demonstrated to the court before it allows the parties to be freed from their contractual bargain. …

37. Thus analyzed, in the situation referred to in para.33(1), the effect of a non-exclusive jurisdiction clause in terms of a challenge to the appropriateness of a forum, is in practice the same as an exclusive jurisdiction clause.  …”

22.  The present case is of the type set out in paragraph 33(3), the approach in respect of which the Chief Judge set out as follows:

“ 38. This approach is to be contrasted with the approach of the courts in applications for stay based on forum non conveniens. Where an application is made to stay proceedings on this basis, the test is to enquire whether there exists another available forum which is clearly or distinctly more appropriate than the forum in which the proceedings are sought to be stayed and in which the case may be tried more suitably for the interests of all the parties and for the ends of justice: ….

42. Thus far, I have concentrated on the applicable principleswhen proceedings are commenced in the very jurisdiction whichis identified in a non-exclusive jurisdiction clause (the para.33(1) situation). As I have said, different considerations may well apply in the type of situation identified in para.33(3). In this situation (wherein the parties have not agreed actually to submit to the relevant jurisdiction), the existence of a non-exclusive jurisdiction clause may well carry far less weight, and cannot betreated in the manner as where the parties have agreed to submit to a named forum. …

44. … Both T & K Electronics Ltd v Tai Ping Insurance Co Ltdand Peregrine Fixed Income Ltd v JP Morgan Chase Bank were cases in which proceedings were commenced in Hong Kong, but the relevant non-exclusive jurisdiction clause named other jurisdictions ….  It was therefore not surprising that Stone J dealt with the applications before him on the basis of forum non conveniens principles.  …”

23.  If a plaintiff is not bound to bring proceedings in a named non-‌ exclusive jurisdiction, there is no reason to limit the determination as to which is the more appropriate forum to a consideration of matters which were not within the plaintiff’s contemplation at the time of the agreement. I do not agree that this would effectively render the validity ofall jurisdiction clauses in international contracts uncertain.  The difference in principle between exclusive jurisdiction clauses and non-exclusive jurisdiction clauses is recognized by the courts and must be acknowledged by parties to a contract when they come to choose between an exclusive jurisdiction clause and a non-exclusive jurisdiction clause.

24.  In paragraph 27 of my Decision, I noted that the defendants’ application was of the type identified in the example set out in paragraph 33(3) and, accordingly, I approached the application on the basis of forum non conveniens.  Moreover, both of the defendants’ respective applications were made on the basis of forum non conveniens.  Approaching the application on the basis of forum non conveniens was the correct approach and, in the search for connecting factors, it was open to me to consider the factors set out in paragraph 41 of my Decision.

25.  The fourth ground of appeal is that I erred in taking into account the possibility of any tracing exercise in Hong Kong as a significant factor in favour of the Hong Kong court.  Tracing is a remedy claimed in the Statement of Claim. 

26.  The defendants submitted that, tracing is a remedy only available to the plaintiff if she succeeds in proving at trial a breach of trust by the 3^rd defendant and dishonest assistance in such breach of trust by the 1^st defendant.  In an earlier decision, dated 5 May 2015, discharging an ex parte worldwide Mareva injunction over the 3^rd defendant’sassets, Madam Recorder Linda Chan SC decided (obiter) that the plaintiff did not have a good arguable case in her trust claim against the 3^rd defendant.  The defendants submitted that it must follow that the plaintiff does not have a good arguable case in her dishonest assistance claim against the 1^st defendant, which is a claim for accessory liability based on the 3^rd defendant’s alleged breach of trust.  Given the lack of merits in these claims, the possibility of any tracing in Hong Kong is a “red herring”, let alone a significant factor in favour of the Hong Kong court, the defendants submitted.

27.  Mr Leung SC, for the plaintiff, submitted that paragraph 23 ofthe Statement of Claim includes a plea of fraud which, if proved, arguablygives rise to a claim that the subject money is held on trust for the plaintiff.Mr Lam SC replied that there is no plea that a trust has arisen, rather, paragraph 23(e) of the Statement of Claim asks for rescission.

28.  My approach was to treat the claim based on constructive trust and the remedy of tracing as extant issues, and I refer to paragraphs 17, 18 and 19 of my Decision, and to include tracing as a significant factor in favour of the Hong Kong court in paragraph 41.

29.  Whilst tracing remains an extant issue I do not consider it correct to categorise it as a “red herring”, ie, something which draws attention away from the matter in issue.  As an extant issue, tracing remains a matter in issue in the stay application.  The issue is the weight to be accorded to the possibility of a tracing exercise in Hong Kong when determining the appropriate forum for the trial of this case.

30.  Taken on its own, I can see the defendants’ submission is reasonably arguable but I need to consider my Decision in its entirety.  If I had not considered tracing to be a significant factor, would the balance have tilted in favour of Hong Kong as the appropriate forum?  The answeris “yes”.  I remain of the view that the other factors set out in paragraph 41are more significant factors in the context of this case than those relied upon by the 2^nd defendant.  I remain of the view that the 2^nd defendant failed to establish that Hong Kong is not the appropriate forum and that Singapore is clearly or distinctly more appropriate than Hong Kong and I refer to paragraphs 40 to 44 of my Decision.  For this reason, I consider that the fourth ground of appeal does not have a reasonable prospect of success.

31.  For the above reasons, I dismiss the defendants’ application for leave to appeal.

32.  Costs should follow the event and I order the 1^st and 2^nd defendants to pay the plaintiff’s costs of the application.

HCA 2322/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 2322 OF 2014

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D E C I S I O N
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1.  This is an application made by the 3^rd defendant, Next Generation Satellite Communications Limited (“Next Generation”), on 8 December 2014 for discharge of the ex parte worldwide Mareva injunction granted by DHCJ Seagroatt on 14 November 2014 and continued (with variations) by the orders dated 21 November 2014 and 12 December 2014. 

2.  The plaintiff, Ms Huang Li, came to know the 1^st defendant, Mr Hady Hartanto, in around December 2010 to January 2011 through the introduction of Mr George Lam (“Lam”) and Mr Lu Rui Feng (“Lu”) in Beijing.  The plaintiff and the 1^st defendant are Hong Kong residents.  The 2^nd defendant, Telemedia Pacific Group Limited, is a company incorporated in the British Virgin Islands and is said to be “fully controlled” by the 1^st defendant although its shares are held by the 1^st defendant and Lu as to 50% each.  Next Generation is a company incorporated in Singapore and its shares are listed on the Singapore Exchange Securities Limited (“SGX”). 

3.  According to the notice of change in the percentage level of a substantial shareholder’s interest dated 9 July 2010 submitted by the 1^st defendant, the 2^nd defendant was described as a substantial shareholder of Next Generation, holding 2,998,500,000 shares (equivalent to 50.01% of its issued shares).  In the Annual Report 2012 of Next Generation, the 2^nd defendant was described as a substantial shareholder, holding 2,269,500,000 shares (representing 35.54% of its issued shares). 

The plaintiff’s case

4.  It is the plaintiff ’s case, as stated in her affirmation dated 14 November 2014 filed in support of her ex parte application, that at the dinner held before 25 January 2011, the 1^st defendant made the following representations to her (collectively “1^st Representations”):

(1) The 1^st defendant was willing to sell to the plaintiff 27,500,000 shares in Next Generation (“Shares”) at S$0.06 per share and the total price payable by the plaintiff would be HK$10,000,000 (at exchange rate of S$1 to HK$6) (“Purchase Price”).

(2) If the plaintiff pays the Purchase Price quickly, the 1^st defendant would ensure that the Shares would be transferred from Singapore to the plaintiff’s account in Hong Kong and he would take care of the necessary documentation for the transfer.

(3) The 1^st defendant would repurchase the Shares from the plaintiff if the price of the Shares falls below S$0.06 per share within the next three years.  If the plaintiff makes any profits by selling the Shares within three years, she should share 10% of such profits with the 1^st defendant.

5.  In reliance on the 1^st Representation, the plaintiff agreed to purchase the Shares from the 1^st defendant at the Purchase Price (“Agreement”) and provided details of her share depository account with the Hong Kong branch of Bank of China (“Share Account”).  On 25 January 2011, the plaintiff and her son met the 1^st defendant in Shenzhen at which the 1^st defendant directed her to make the cheque payable to “Ban Joo Company Limited” which was the former name of Next Generation.  On the same day, the cheque was deposited into Next Generation’s bank account at HSBC in Hong Kong.

6.  Despite payment of the Purchase Price, the 1^st defendant failed to transfer the Shares to the plaintiff.  Following the repeated demands made by the plaintiff, in or around March 2011, the 1^st defendant provided a sale and purchase agreement in respect of the Shares (“SPA”) “to placate and/or appease her”.  In the course of executing the SPA, the 1^st defendant made the following representations to the plaintiff (collectively “2^nd Representations”):

(1) The 1^st defendant would transfer the Shares to the plaintiff (through the 2^nd defendant) pursuant to the Purchase Price paid on 25 January 2011. 

(2) The 1^st defendant would through the 2^nd defendant sign the relevant transfer form to effect transfer of the Shares to the plaintiff. 

7.  The plaintiff claims that by providing and executing the SPA the 1^st defendant had by conduct further represented that he would abide by the 1^st Representations, thereby inducing the plaintiff to sign the SPA and not to seek immediate refund of the Purchase Price (“Further Representations”).  In reliance on the 1^st Representations, 2^nd Representations and Further Representations, the plaintiff executed the SPA and did not seek immediate refund of the Purchase Price.  The 1^st defendant executed the SPA on behalf of the 2^nd defendant and back‑dated it to 28 January 2011. 

8.  In the SPA, it was stated, inter alia, that:

(1) The plaintiff shall purchase the Shares from the 2^nd defendant and the purchase consideration (defined as HK$10,000,000) shall be paid by the plaintiff by delivering to the 2^nd defendant a banker’s draft or a cashier’s order drawn in favour of the 2^nd defendant or in such other manner as may be agreed between the plaintiff and the 2^nd defendant (clause 2). 

(2) The 2^nd defendant, as vendor, shall on the Completion Date (defined as 28 January 2011) deliver to the plaintiff the requisite form for transferring the Shares to the plaintiff (clause 3.2.1). 

(3) The 2^nd defendant grants a put option to the plaintiff to sell the Shares at S$0.06 per share which may be exercised within a period of three years commencing from 28 January 2011.

(4) If the plaintiff sells any part of the Shares at a price higher than S$0.06, the profits shall be shared between the plaintiff and the 2^nd defendant as to 90% and 10% respectively (clause 6.1).

9.  In October 2011, the 1^st defendant resigned as executive deputy chairman and director of Next Generation as a result of the regulatory actions taken by SGX against him.  The plaintiff was aware of the resignation, but claims that it was only until October 2014 that she knew the true reason of his resignation.

10.  The plaintiff says that despite repeated requests made between March 2011 and January 2014, the 1^st defendant did not transfer the Shares to her.  By letter dated 19 May 2014 issued by Adrian Yeung and Cheng (“AYC”) on behalf of the plaintiff, it was asserted that (a) the 2^nd defendant had acted in breach of the SPA by failing to transfer the Shares to the plaintiff, and such act constituted repudiation of the SPA which was accepted by the plaintiff; and (b) the 1^st defendant had fraudulently represented to the plaintiff that the 1^st and 2^nd defendants intended to sell the Shares to the plaintiff, which constituted a fraud on the plaintiff.  The letter concluded by stating that unless the 1^st and 2^nd defendants repay the sum of HK$10,000,000 to the plaintiff within 14 days, the plaintiff shall commence proceedings against the 1^st and 2^nd defendants and may lodge a complaint to the Hong Kong Police, the SGX and the other relevant authorities.

11.  According to the plaintiff, at the meeting held on 4 June 2014 in Shenzhen, the 1^st defendant “admitted” that (a) the Shares were “in fact warrants that were owned by Lam” and that the Purchase Price paid into Next Generation’s account was subsequently paid to Lam, and (b) he and the 2^nd defendant could not transfer the Shares to the Share Account and, in any event, they could not sell the Shares to the plaintiff as such sale would require them (as substantial shareholders of Next Generation) to make the necessary announcements to SGX and the consent of Lu who holds 50% shares in the 2^nd defendant.

12.  Thereafter, on 5 June 2014 and 30 June 2014, the 1^st defendant through text messages and the letter from his solicitors, Liu, Chan and Lam, requested the plaintiff to withhold legal proceedings.  On 6 August 2014, the plaintiff lodged a complaint with SGX.  This was followed by a complaint lodged with the Hong Kong Police on 15 August 2014.  The 1^st defendant was aware of the complaints as he sent a text message to the plaintiff on 11 September 2014, stating that it was not right for the plaintiff to report the matter to the police.  

13.  On 24 September 2014, the 1^st defendant contacted the plaintiff and her solicitors stating that he had deposited HK$2 million with his solicitors which could be paid to the plaintiff the next day, whereupon the plaintiff agreed that if she received HK$2 million by 25 September 2014, she would allow the 1^st defendant to repay the balance by 10 October 2014.  Despite this promise, the 1^st defendant did not pay any amount to the plaintiff by 10 October 2014. 

14.  In October 2014, the plaintiff became aware of the findings of Ernst & Young from Next Generation’s announcement, which stated that the 1^st defendant had been heavily indebted to a finance company, Niaga Finance Company Limited (of which he was a shareholder and director) (“Niaga”), and that it was because of the various transactions between Next Generation and Niaga procured to be made by the 1^st defendant in March 2011 which led to SGX’s regulatory actions against the 1^st defendant.  

15.  When confronted by the plaintiff, Lam denied that he had received the Purchase Price while Lu said that the Purchase Price had been paid to Next Generation and that he would request the 1^st defendant to repay the Purchase Price in full by 10 October 2014. 

16.  Since January 2011 the trading price of the shares in Next Generation has been falling, and by 12 November 2014, it fell to S$0.003 per share.

17.  Based on the above allegations, the plaintiff pleaded the following claims in the statement of claim dated 14 November 2014 (“SOC”):

(1) That the 1^st Representations, the 2^nd Representations and the Further Representations were made by the 1^st defendant fraudulently and the plaintiff is entitled to rescind the SPA (SOC §23).

(2) That the 2^nd defendant was in breach of the SPA and the plaintiff accepted its repudiation by ASC’s letter of 19 May 2014, and the Purchase Price became payable to the plaintiff (SOC §24).

(3) That Next Generation “held the Purchase Price on trust for the Plaintiff.  The purpose for which the Purchase Price was paid having wholly failed, the Plaintiff is entitled to the repayment of the Purchase Price” (SOC §25).

(4) That the 1^st defendant “… had dishonestly and/or otherwise assisted [Next Generation] in its breach of trust when he knew full well that the Purchase Price was paid to [Next Generation] for the sole purpose of acquiring the Shares from the 1^st defendant. By reason thereof, the 1^st and 3^rd defendants are liable for breaches of trust.” (SOC §26).

(5) Further or alternatively, the 1^st defendant and/or Next Generation “had been unjustly enriched at [the Plaintiff’s] expense on the ground of a total failure of consideration, and the 1^st and 3^rd Defendants jointly or severally are liable to repay the Purchase Price to the Plaintiff.” (SOC §27). 

18.  In her affirmation dated 14 November 2014, under “Real Risk of Dissipation/Dishonesty”, the plaintiff alleged that:

(1) The 1^st defendant had acted dishonestly in his dealings with her and that she was “a victim of a scam” (§§48‑51).

(2) In October 2011, the 1^st defendant was reprimanded by SGX for his role in the “round-tripping of money” in another listed company which took place in March 2011, and consequently, was barred from holding directorship in any listed companies in Singapore (§52(c)).

(3) The only assets of the 1^st and 2^nd defendants known to the plaintiff are their shares in Next Generation, and the 1^st defendant had indicated that he was in the process of disposing such shares (§52(a)).

(4) The 2^nd defendant is a BVI company and there is no reciprocal enforcement arrangement between Hong Kong and BVI (§52(b)).

(5) The 1^st defendant was in 2010/2011 heavily indebted to Niaga and that certain funds belonging to Next Generation and placed with Niaga had disappeared (§52(d)).

(6) On 31 October 2014, Next Generation announced that Ernst & Young had completed its investigations and found that there had been “certain questionable cash movements” between Next Generation and Niaga, and there was evidence to suggest that the discrepancy in Next Generation’s cash balances at Niaga in the amount of S$26.8 million “could be connected to the personal exposure of the 1^st Defendant” (§§53‑54). 

19.  On the basis of the above evidence and claims, the plaintiff applied for and obtained an ex parteMareva injunction against the 1^st and 2^nd defendants and Next Generation up to HK$10,000,000. 

Applicable principles

20.  It is well established that ex parte application without notice should only be made where either the delay would cause injustice to the applicant or the defendant would take action which may nullify the effect of the injunction: Ho Tak Eng t/a Hung Man Interior Design Co v Fame Brilliant Ltd [2006] 1 HKLRD 34, §8 per Rogers VP.

21.  In applying for a Mareva injunction, the plaintiff must show:

(1) That he has a good arguable case on a substantive claim over which the court has jurisdiction.

(2) That there are assets within the jurisdiction.

(3) That the balance of convenience is in favour of grant.

(4) That there is a real risk of dissipation of assets, or removal of assets from the jurisdiction, which would render the plaintiff’s judgment of no effect (Hong Kong Civil Procedure 2015, §29/1/65).

22.  Where, as here, a worldwide Mareva injunction is sought, the plaintiff has to satisfy the court that (a) there are no assets or insufficient assets within the jurisdiction to satisfy his claim, (b) there are assets outside the jurisdiction, and (c) there is a real risk of dissipation or secretion of those assets so as to render any judgment which the plaintiff may obtain nugatory.  In this regard, the plaintiff must make due inquiries regarding the defendant’s assets within and outside jurisdiction, and it is insufficient for the plaintiff to simply argue that any inquiries would have yielded no result as this is a matter that should be established by evidence (Hong Kong Civil Procedure 2015, §29/1/83).  

23.  As for the duty to make full and frank disclosure, the materiality of the fact is to be decided by the court and not by the assessment of the applicant or his legal advisers.  The applicant must make proper inquiries before making the application, as the duty of disclosure applies not only to material facts known to the applicant but also to additional facts which he would have known if he had made such inquiries.  If material non‑disclosure is established the court will be astute to ensure that a plaintiff who obtains an ex parte injunction without full disclosure is deprived of any advantage he may have derived by that breach of duty (Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350 at 1356G‑1357B‑C, per Ralph Gibson LJ).  

24.  The requirement of the plaintiff making due inquiries as to the assets held by the defendants in Hong Kong and overseas and to place such evidence before the court is crucial, as it enables the court to assess whether there is a need to restrain the defendant from disposing its assets pending determination of the action.  This principle was stated by Recorder Anthony Chan SC (as he then was) in NCS Co Ltd v Bao Harvest Holdings Ltd [2012] 5 HKLRD 138, as summarized in the headnote:

“(1) While P had a good arguable case on the merits, it had made no inquiries as to what assets were held by D in Hong Kong and overseas. On the evidence, D had established a compelling case that it was highly unlikely it would destroy its business in Hong Kong by the dissipation of assets to avoid a potential liability of USD1.4 million inclusive of P’s legal costs. In any event, there was no justification for a worldwide injunction as D’s Hong Kong assets exceeded P’s claim. The injunction must be discharged on this ground alone. (See paras.10-14, 29).

…

(4) Finally, there was material non-disclosure by P.  It was unacceptable that P made an ex parte application without even attempting to enquire into D’s financial position thereby misleading the Judge.  …”

Grounds for discharge

25.  The skeleton used by the plaintiff at the ex parte hearing is not included in the hearing bundles.  According to Mr Chan Chung, counsel for the plaintiff, the only basis relied on by the plaintiff for proceeding ex parte was urgency.  It was not the plaintiff’s contention that the ex parte application was justified on the need for secrecy. 

26.  Mr Minju Kim, counsel for Next Generation, contends that the Mareva injunction should be discharged for the following reasons:

(1) there is no justification for a worldwide Mareva injunction as Next Generation is a company with substantial assets and it is highly unlikely that it would destroy its business in order to avoid a potential liability of HK$10 million;

(2) the plaintiff’s failure to make inquiry of Next Generation’s assets and to draw to the attention of the court on the magnitude of its assets constituted material mis-statement and material non‑disclosure; 

(3) there was no urgency which would justify the plaintiff seeking the Mareva injunction on an ex parte basis;

(4) there was no evidence at the ex parte application that there was any risk of dissipation of assets on the part of Next Generation; and

(5) the plaintiff’s claim that Next Generation was a constructive trustee in respect of the HK$10 million does not meet the good arguable case threshold.

27.  I shall deal with these points in turn.

No risk of dissipation

28.  As pointed out by Mr Kim, at the ex parte application, there was no evidence of any risk of dissipation of assets on the part of Next Generation.  The plaintiff’s evidence on risk of dissipation of assets, as summarised in §18 above, were all directed to the 1^st defendant and, to a certain extent, the 2^nd defendant.  Nothing was said about Next Generation.  This is not surprising as the 1^st defendant has since October 2011 ceased to hold any position in Next Generation. Thus, any alleged dishonesty or low commercial morality on the part of the 1^st defendant was entirely irrelevant to the question whether at the time the injunction was applied for, there was a risk of dissipation on the part of Next Generation. 

29.  Mr Chan does not dispute that there was no evidence of risk of dissipation of assets against Next Generation at the ex parte hearing.  For this reason alone, the ex parteMareva injunction should be discharged.

30.  Nevertheless, Mr Chan contends that even if the injunction is discharged, the court should re‑grant an injunction against Next Generation as the evidence subsequently filed by the plaintiff shows that there is a risk of dissipation of assets on its part because:

(1) The 1^st defendant is still a substantial shareholder of Next Generation and, as such, he can procure Next Generation “to call a meeting for disposal of assets and other matters”; and

(2) The 1^st defendant’s sister, Ms Sri Tjintawati Hartanto, is one of the seven directors of Next Generation, and she had some involvement in the “questionable” transactions between Next Generation and Niaga.

31.  Leaving aside the fact that no application for a re‑grant has been made or even fore-shadowed by the plaintiff in the skeleton, the contention is wholly without merit.  It is well established that where, as here, there is an effective board, the shareholders cannot in general meeting usurp the powers of the board (Breckland Group Holdings Ltd v London and Suffolk Properties and others [1989] BCLC 100; Miracle Chance Ltd v Ho Yuk Wah [1999] 3 HKC 811 (CA) at 815C‑F).  There is nothing to suggest that the board of Next Generation is not effective or that the shareholders are able to usurp its power in the way suggested by Mr Chan.  As for the position of the 1^st defendant’s sister, I do not think the evidence justifies the plaintiff’s allegation, which is a serious allegation.  In any event, as one out of the seven directors, it would not be possible for Ms Hartanto to dissipate the assets of Next Generation.  This is particularly so when Ms Hartanto is no longer an authorised signatory of any bank account of Next Generation.

Material non‑disclosure

32.  Mr Kim submits that the plaintiff failed to make any inquiries as to the assets of Next Generation and to inform the court at the ex parte application the fact that according to the financial information published by Next Generation, it was a solvent company with substantial assets.  Mr Kim submits that the omission must be deliberate as the plaintiff did depose to the fact that the 1^st and 2^nd defendants did not have any assets within or outside the jurisdiction other than the shares in Next Generation, but did not deal with Next Generation’s assets at all. I agree.

33.  That the omission to disclose the extent of assets owned by Next Generation must be deliberate is reinforced by the following fact:

(1) The plaintiff in her 1^st affirmation exhibited a few pages from the Annual Report 2012 of Next Generation (“HL‑12”, being the latest Annual Report published by Next Generation) in support of her contention that the 1^st and 2^nd defendants were substantial shareholders of Next Generation.  It could not have escaped the attention of the plaintiff, and those advising her, that in the same Annual Report, there was balance sheet showing the financial position of Next Generation, including  the magnitude of its assets. 

(2) Mr Chan tries to justify the omission by suggesting that the plaintiff was only able to obtain the Annual Report 2012 but not the subsequent balance sheets.  This seems to me to be a tacit acceptance by the plaintiff that she had deliberately withheld from the court the balance sheet in the Annual Report 2012.  In any event, this suggestion is inconsistent with the fact that the plaintiff was able to obtain the financial information of Next Generation from 2011 to September 2014 from SGX’s website (“Financial Information”), which was exhibited to her 3^rd affirmation (“HL‑31”) in support of her suggestion that Next Generation’s “business performance for the past 2 financial years was poor”.

(3) The Financial Information showed that as at 30 September 2014, Next Generation had net assets of S$89,037,000 (equivalent to approximately HK$505.5 million). 

(4) There is no explanation as to why the plaintiff did not disclose the Financial Information at the ex parte application. 

34.  In light of the material non-disclosure as to the assets of Next Generation, the ex parteMareva injunction must be discharged.  I do not think it is appropriate to re‑grant an injunction against Next Generation even if the plaintiff has demonstrated that there is a risk of dissipation of assets on the part of Next Generation (which it has not). 

Delay

35.  Mr Kim submits that there was considerable delay and inaction on the part of the plaintiff for over three years which shows that there is no risk of dissipation of assets.  He relies on Re Chau Cham Wong Patrick, HCB 549/2012, 20 June 2014, where Ng J at §33 said:

“While the mere fact of delay in bringing an application for Mareva injunction or that the application is first made inter partes does not, without more, negate a risk of dissipation, delay, and the lack of proper explanation for it, is always a relevant consideration when assessing whether there is a real risk of dissipation: Enercon v Enercon (India) [2012] EWHC 689 (Comm). As Eder J put it at [78]:

‘[I]t is not simply the fact of delay that is so important but what it tells the court about the risk of dissipation. Absent some proper explanation, the fact that the claimants here waited for almost two and a half years before seeking a freezing injunction raises, at the very least, a large question mark as to whether there is indeed a real risk of dissipation.’

…”

36.  In the present case, there was a delay of over three years on the part of the plaintiff in commencing proceedings and seeking injunctive relief against the defendants. On the plaintiff’s own case, the 1^st defendant was in breach of the alleged Agreement on the same day it was made (25 January 2011) when he failed to transfer the Shares to her.  Although the parties then entered into the SPA, which required the 2^nd defendant to transfer the Shares to the plaintiff on 28 January 2011 (despite the fact that the SPA was made in March 2011), the 2^nd defendant failed to transfer the Shares to her.  This was followed by the regulatory action taken by SGX against the 1^st defendant in October 2011.  Thus, any alleged dishonesty or low commerciality on the part of the 1^st and 2^nd defendants relied on by the plaintiff at the ex parte application were matters known to her by at least October 2011.

37.  Mr Chan submits that there was no delay on the part of the plaintiff as the action was commenced within the limitation period and the 1^st defendant had been dealing with the plaintiff until September 2014 when he “disappeared” and could not be found.  As regards Next Generation, the application for injunction was prompted by the findings of Ernst & Young announced by Next Generation in October 2014. 

38.  In my view, the fact that the plaintiff had been in contact with the 1^st defendant shows that she was contented to negotiate with the 1^st defendant and did not consider that there was any risk of dissipation of assets on his part.  As for the findings of Ernst & Young, they only set out the details of the transactions between Next Generation and Niaga procured to be made by the 1^st defendant back in March 2011. In any event, there was nothing in Ernst & Young’s findings which suggested that there was any concern about the conduct of Next Generation or its incumbent directors.  

39.  Having regard to the substantial delay and inaction on the part of the plaintiff, I do not think that it was open to her to justify the ex parte application as against Next Generation on the ground of urgency.  The injunction should be discharged for this additional reason. 

No good arguable case

40.  In view of my conclusion on risk of dissipation of assets, material non‑disclosure and delay, it is not necessary for me to consider whether the plaintiff has a good arguable case against Next Generation.  Nevertheless, it seems to me that on the basis of the plaintiff’s evidence and the SOC, the plaintiff does not have a good arguable case against Next Generation. 

41.  So far as the claim for misrepresentation is concerned, there is no allegation that Next Generation was privy to any of the alleged 1^st, 2^nd or Further Representation or that such representations were made by the 1^st defendant on behalf of Next Generation.

42.  As for the “trust” claim pleaded in §25 of SOC, it is based solely on the fact that “the Purchase Price had been paid to [Next Generation] for the purpose of acquiring the Shares from the 1^st Defendant on the directions of the 1^st Defendant in the circumstances as pleaded hereinabove”.  At the hearing, Mr Chan submits that since the 1^st defendant was a director of Next Generation at that time, his knowledge could be attributed to Next Generation, relying on El Ajou v Dollar Land Holdings plc [1994] 2 All ER 685.  On this basis, Mr Chan submits that Next Generation “who had obtained the HK$10M is a constructive trustee of the proceeds and the sum is traceable in equity”. 

43.  I am unable to see how the fact that the 1^st defendant directed the Purchase Price to be paid to Next Generation would make Next Generation to become a trustee in respect of the Purchase Price.  The contention is inconsistent with the plaintiff’s own evidence, as well as her pleaded case, that the Purchase Price was paid by her for the purpose of acquiring the Shares from the 1^st and 2^nd defendants, such that the 1^st and 2^nd defendants are liable to repay the same by reason of rescission of the SPA, and alternatively, repudiatory breach of the SPA.  It is not the plaintiff’s case that as part of their Agreement, the 1^st defendant or Next Generation was required to retain the Purchase Price or otherwise hold it on trust for the plaintiff until the Shares were transferred to her.  Nor is it the plaintiff’s case that Next Generation was designated by the plaintiff to hold the Purchase Price on trust pending the transfer of the Shares.  That being the position, once the Purchase Price was paid to the 1^st defendant, he was free to use it in the way he saw fit.  The fact that the 1^st defendant decided to use the Purchase Price to pay Next Generation would not make Next Generation to become a trustee of the Purchase Price for the plaintiff.  The same goes to the plaintiff’s claim against Next Generation for dishonest assistance (§27) and total failure of consideration (§28). 

Conclusion

44.  For the above reasons, I order that the ex parte Mareva injunction granted by DHCJ Seagroatt on 14 November 2014 against Next Generation and continued by the order of DHCJ Seagroatt made on 21 November 2014 and the order of Ng J on 12 December 2014 (as varied) be discharged. I make a costs order nisi that the costs of and occasioned by the summons for discharge dated 8 December 2014 be paid by the plaintiff to Next Generation on an indemnity basis.  Such costs to be taxed by way of gross sum assessment.  I direct Next Generation to submit a statement of costs within three working days of this Decision and the plaintiff to provide her comments on the statement of costs within three working days thereafter.