HCA 333/2016
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 333 OF 2016
____________________
| BETWEEN | | |
| WAH SUN HONG LIMITED
(華新行塑膠原料有限公司) | Plaintiff |
| and | |
| WONG LEE YUK PING AGNES
(黃李玉平) | Defendant |
____________________
| Before: Mr Recorder Stewart Wong SC in Chambers |
| Date of Hearing: 2 November 2016 |
| Date of Decision: 16 November 2016 |
____________________
D E C I S I O N
____________________
A. Introduction
1. In this action, the plaintiff sues the defendant, who was a former director and general manager thereof.
2. The plaintiff alleges that the defendant had caused three sums totalling HK$19,139,209 to be transferred from the plaintiff’s bank account to a person named Deng with whom the plaintiff had no transactions, and there were no commercial or other justifications for the said transfers. After taking into account certain “repayments” by the defendant totalling HK$10,676,701, the net amount claimed is HK$8,462,508. Alternatively, it claims various reliefs arising from the alleged breach of fiduciary duties, trust and the duty of fidelity and good faith owed by the defendant, and conspiracy between the defendant and Deng, by reason of the said transfers .
3. In her Defence, the defendant says that she did not cause the sums to be transferred because she did not know how to operate the e‑banking facilities of the plaintiff’s bank account and she did not had in her possession the “bank key” for access to the facilities. Rather, she and Mr Willie Chieng Wai Lam (“Chieng”), who at the material times owned 50% of the holding company of the plaintiff, and the person who had “the last and final say in all decisions relating to the Plaintiff, in running the business”, had a private investment together via a company called Well Faith Asia Limited (“Well Faith”) to acquire a 20% interest in a mining company owned by Deng. As a result, various instalments were due to be paid to Deng. She made a first payment to Deng directly in the sum of HK$7,000,000 on 18 March 2011 as directed by Well Faith. Further instalments from her and Chieng were subsequently due. Chieng decided to pay, and directed the payments of, such instalments using the e‑banking facilities of the plaintiff’s bank account. As for her own share of the instalments, the defendant would deposit the same into the plaintiff’s bank account first and the total sum (comprising her share and Chieng’s) would then be paid out of the plaintiff’s bank account. The pleaded details in the Defence are as follows:
| The defendant’s share | Cheing’s share | Payment out from the plaintiff’sbank account to Deng |
HK$6,045,000,
deposited into the plaintiff’s bank account on 23 March 2011.
(In its Amended Statement of Claim, the plaintiff agrees to this payment in by the defendant.) | HK$1,955,000;
the defendant says Chieng told her that the plaintiff owed him HK$1,000,000 as commission and he would utilise the same for payment. | HK$8,000,000
(According to the Amended Statement of Claim, this sum was paid from the plaintiff’s bank account on 23 March 2011.) |
| | HK$5,000,000
(The defendant alleges this instalment was due from Chieng on 30 March 2011.) | HK$5,000,000
(According to the Amended Statement of Claim, this sum was paid from the plaintiff’s bank account on 30 March 2011.) |
HK$1,456,209 and US$210,000 (total HK$3,094,209),
deposited into the plaintiff’s account on 8 April 2011.
(In its Amended Statement of Claim, the plaintiff agrees to this payment in by the defendant.) | HK$3,045,000 | HK$6,139,209
(According to the Amended Statement of Claim, this sum was paid from the plaintiff’s bank account on 8 April 2011.) |
| TOTAL: HK$9,139,209 | TOTAL: HK$10,000,000 | TOTAL: HK$19,139,209 |
The above is summarised from §6 of the Defence.
4. No reply to the Defence is filed. There is therefore an implied joinder of issues pleaded in the Defence. No positive case is being asserted by the plaintiff regarding the alleged investment in the mining company via Well Faith.
B. The plaintiff’s request for particulars
5. By a summons dated 24 June 2016, the plaintiff asks for an order that the defendant do file and serve further and better particulars of the Defence pursuant to a request “filed herein on 6th June 2016”. The request comprises 18 pages, with 10 requests which contain a large number of sub‑requests. I include the request as an annex to this Decision.
6. Mr Patrick Siu, appearing for the plaintiff, submits that the requests 1 to 4 are the “gist” of his application. By those requests, the plaintiff seeks very detailed particulars regarding the alleged investment, with details about the terms of the investment, Well Faith, the mining company, and the payments being sought.
7. Mr Siu says that such information is required so that the plaintiff can prepare its case, for example, what documents to look for which may be relevant to the alleged investment.
8. The defendant has placed before an affidavit made by her in support of her application to strike out the action, and the affirmation of Chieng Tsai Wan Judy (“Ms Judy Chieng”), a director of the plaintiff, in opposition. Even though the inclusion of these documents in the hearing bundle was initially objected to by the plaintiff, at the hearing both Mr Siu, and Mr Jeevan Hingorani, appearing for the defendant with Mr Lawrence Cheung, refer to §11(1) of the affirmation of Ms Judy Chieng which reads as follows:
“Firstly, I have been informed by Willie Chieng and verily believe as follows–
(a) Since around 2005, the Defendant had mentioned to Willie Chieng numerous investment opportunities and projects, and one of such projects included a mining company. Willie Chieng had only agreed to participate in some of them but did not participate in all of them. Based on the recollection of Willie Chieng, the mining company was not one of the investments which he had agreed to participate.”
9. What Ms Judy Chieng says is, in my judgment, relevant to my consideration of the plaintiff’s case as to what it needs in terms of particulars so as to prepare its evidence. It is the plaintiff’s own case that Chieng did not agree to or participate in any investment in any mining company with the defendant. Its case is not that Chieng cannot remember whether he agreed to invest in any mining company, or that he had invested in one or more such companies but could not remember which one or ones so that he does not know what documents or evidence are relevant. Its case is that he invested in no mining company. If so, he has no evidence to prepare save to deny that he did agree, or authorised any payments from the plaintiff’s bank account for any such purpose, and I do not see how the particulars asked for are required for proper preparation of evidence. And even if he is not sure whether he did invest and if so which one or ones, which in fact is not his case as appeared from Ms Judy Chieng’s evidence although this is not altogether clear from the pleadings, it appears to me that, for the plaintiff and Chieng to prepare evidence in response, all that is needed is the name of the mining company, and not minute details as requested such as details of the mining company like its registered office or principal places of business, or details of each payment. The plaintiff (and Chieng) can then prepare evidence as to whether he did invest in that company and if so what were the terms and his acts in relation thereto. The details the plaintiff asks for are in my judgment matters of evidence, and not particulars.
10. Mr Hingorani has agreed to provide answers to requests 1.1(2), 1.1(3) and 1.2(1)(a), thereby giving details of the alleged investment in Well Faith and the name of the mining company. In my judgment these particulars, together with those already pleaded in §6 of the Defence, are more than sufficient for the plaintiff to prepare its evidence for trial, and to prevent any surprise at the trial, as well as serving the other purposes of particulars as summarised by Deputy High Court Judge Marlene Ng in WillwinDevelopment(Asia)CoLtdvWeiXing (HCA 797/2012, 25 February 2013) at §26:
“There is also no dispute that the function of particulars is as follows: (a) to inform the other side of the nature of the case that he has to meet as distinguished from the mode in which the case is to be proved, (b) to prevent the other side from being taken by surprise at the trial, (c) to enable the other side to know with what evidence he ought to be prepared and to prepare for trial, (d) to limit the generality of the pleadings, the claim and the evidence, (e) to limit and define the issues to be tried, and as to which discovery is required, and (f) to tie the hands of the party so that he cannot without leave go into any matters not included (see Hong Kong Civil Procedure 2013 Vol.1 para.18/12/1 at p.394 and Aktieselskabet Dansk Skibsfinansiering v Wheelock Marden & Co Ltd & ors [1994] 2 HKC 264, 269 – 270, per Bokhary JA (as he then was )).”
11. Apart from the particulars which Mr Hingorani has agreed to give, the particulars sought under requests 1 to 4 are in my judgment matters of evidence (some of which such as the name and shareholding of other shareholders of the mining company are of very peripheral, if any, relevance even at trial) rather than material fact or particulars thereof, and I do not see the justification for those requests. I should add that but for the agreement of Mr Hingorani, for reasons stated above I would not have ordered the particulars asked for under requests 1.1(2), 1.1(3) and 1.2(1)(a).
12. While I do accept of course that the issues in a case are defined by pleadings and not by witness statements, the necessity for particulars requested to inform the other side of the case it has to meet and what evidence to look for and to be prepared, and to prevent surprise, which are the functions relied upon to by Mr Siu, in a given situation must be viewed in the light of current practice of filing witness statements well before trial. As Deputy High Court Judge Marlene Ng said in Willwin at §27, which I find to be apposite in the present case:
“In a nutshell, the purpose of FBP is to permit the parties to understand the case they have to meet at trial so as to remove the element of surprise. But the particularity of what is required from the pleader depends on the facts of each case. The modern approach is stated in McPhilemy v Times Newspapers Ltd & ors [1999] 3 All ER 775 as follows: the current practice of requiring witness statements, expert reports and so forth to be exchanged should reduce the need for FBP to clarify pleadings, and as long as the pleadings do convey the nature of the party’s case and state the material facts, they should not attract applications for FBP even though some details that are likely to come forth in discovery or witness statements are not disclosed.”
13. As Mr Hingorani submits, the defendant can be expected to provide discovery and to file a witness statement to support her pleaded case, which would further prevent any surprise to the plaintiff at trial, and to assist its preparation. I do not see any genuine difficulty by the plaintiff in understanding the nature of the case it has to meet from the current Defence.
14. Mr Siu, referring to §11(1) of the affirmation of Ms Judy Chieng, argues that as Chieng says that he had agreed to other investments, the monies might have been paid for other projects so the plaintiff need to know the name of the mining company and the full terms of the investment. Mr Siu says the defendant might have made a mistake about what the transferred sums were for. But, with respect, and as Mr Hingorani submits, the defendant has committed her case to investment in a mining company and her case is to be further nailed down to a specific named mining company. Even if the sums were for another investment by the defendant and Chieng, the requests would not have assisted the plaintiff in identifying what was that other investment, if not for the mining company to be named (and which in fact had already been named in the affidavit of the defendant for the strike‑out application). If the sums were indeed for another investment, that would not be named or identified by the particulars sought, while sufficient details have in the meantime been pleaded in relation to each of the transfers to Deng.
15. I dismiss the plaintiff’s requests 1 to 4 (save for those Mr Hingorani agrees to give). Mr Siu accepts that request 5 is a “recap” of requests 1 to 4 and they stand or fall together. In the premises, I dismiss request 5 as well.
16. Under requests 6 and 7, the plaintiff refers to certain denials by the defendant in the Defence and asks what the defendant’s case is. Of course, the Defence would have to be read as a whole and with common sense, and reading the Defence, in particular §6 thereof which I summarise at §3 above and to which the denials cross‑reference, in my judgment the defendant’s case relating to the subjects of denial (which the requests are asking about) is sufficiently clear. I dismiss requests 6 and 7.
17. Request 8 relates to an averment in the Defence that entries in the plaintiff’s accounting records concerning sums alleged to be Chieng’s contributions were “done in accordance with the Plaintiff’s regular business practices as decided by Maggie Mak”. Ms Mak was an accounting staff of the plaintiff. Request 8(1) asks what exactly were the business practices alleged, and the rest of request 8 asks very detailed questions about the business practices.
18. In my judgment the alleged practices were sufficiently identified, as it is pleaded that the sums were recorded as “temporary receipt” and “temporary payments” because “it helped to designate which account each respective party would be assigned when Willie Chieng settled the balance due to the Plaintiff”. Thus, how and why the sums were so recorded has been pleaded. With respect, I fail to see the further information asks for would be material facts or particulars or is required to serve the purposes of particulars. I dismiss request 8.
19. Request 9 asks in effect for particulars of how the plaintiff was supposed to be “well aware of the said Transfers to Deng” in that whether it was solely by virtue of the alleged involvement of Chieng that the plaintiff was fixed with notice or knowledge of the purchase of shares from Deng. But the relevant averment in the Defence already pleads that it was “Because of Mr. Willie Chieng’s involvement in the Deng Share Purchase, the Plaintiff was aware” of the transfers. The defendant has pleaded why she says the plaintiff was so aware. I simply do not understand the purpose of asking someone who expressly gives a reason for something, “Is that the only reason?” Otherwise a question like that can be asked for almost every sentence in every pleading. The simple point is that she has pleaded her case and as the Defence stands she cannot justify her case that the plaintiff had knowledge by reference to any other reason or basis. I dismiss request 9.
20. Request 10 relates to the defendant’s understanding that a commission of HK$1,000,000 was credited to Chieng in the “temporary account”. This is not so much an allegation of the fact of entry but an allegation of the defendant’s understanding, which may or may not be correct, and the relevance of which I am not too sure in any event. That must be a matter of evidence and not material facts or particulars. And the plaintiff (and Chieng) certainly would be in a position to know whether the understanding is correct or not (which the defendant is not asserting as a fact). I dismiss request 10.
C. Disposition
21. I dismiss the plaintiff’s summons save for requests 1.1(2), 1.1(3) and 1.2(1)(a), answers to which should be provided by the defendant within 14 days of the date of this decision.
22. I also make an order nisi that the costs of the summons be paid by the plaintiff to the defendant. If the plaintiff does not apply for a variation of the costs order nisi within 14 days of the date of this decision, the order will become absolute, and there will be a gross sum assessment of the costs by me and the defendant is to file and serve her bill of costs of the summons within 14 days of the date the costs order becomes absolute. The plaintiff is to provide its submissions on the bill (if so desired) within 7 days of service and the defendant is to provide her submissions in reply (if so desired) within 7 days thereafter.
23. I shall also indicate that I am not minded to give costs to the defendant for more than one counsel as this application does not justify that. If the defendant wishes to ask for costs of both counsel appearing, then she should also include submissions in support when she submits her bill of costs, and the plaintiff is to give its answer to this (if so desired) when it provides its submissions on the bill generally.
24. A summons taken out by the defendant on 19 July 2016 seeking further and better particulars of the Amended Statement of Claim is also before me. But the plaintiff has provided voluntary particulars and there is no need for me to, and I do not, make any order on the summons. The parties also agree that there should be no order as to costs for this summons. The amount of hearing time spent on this summons is minimal, and no skeleton is filed on it by the defendant, and I shall bear these in mind when I undertake the gross sum assessment of the costs to be paid to the defendant on the plaintiff’s summons.
25. I thank counsel for their assistance.
| | (Stewart Wong SC) |
| | Recorder of the High Court |
Mr Patrick Siu, instructed by Henry Wai & Co, for the plaintiff
Mr Jeevan Hingorani and Mr Lawrence Cheung, instructed by W L Yuen & Co, for the defendant
Annex
__________________________________________________________________
REQUEST FOR FURTHER AND BETTER PARTICULARS
OF THE DEFENCE FILED HEREIN ON 6TH JUNE 2016
__________________________________________________________________
1. Paragraph 6(4):-
In respect of the allegations that “Mr. Willie Chieng Wai Lam and the Defendant had private investment via a Hong Kong company, Well Faith Asia Limited, to acquire 20% interest in a mining company owned by Deng, pursuant to which the Defendant has made the first payment ofHK$7,000,000 to Deng by her personal cheques on 18thMarch, 2011 as directed by Well Faith Asia Limited.”, please state with all particularity:-
1.1 in relation to the alleged private investment of Mr. Willie Chieng Wai Lam (“Mr. Willie Chieng”) and the Defendant via Well Faith Asia Limited (“Well Faith”):-
(1) the alleged amount of the investment of each of:-
(a) Mr. Willie Chieng; and
(b) the Defendant
via Well Faith;
(2) the alleged percentage interest of each of:-
(a) Mr. Willie Chieng; and
(b) the Defendant
in such alleged investment via Well Faith; and
(3) if the total of the alleged percentage interests of Mr. Willie Chieng and the Defendant in such alleged investment via Well Faith is less than 100%:-
(a) the full name(s) of all other investor(s) in such alleged investment via Well Faith;
(b) the amount of the alleged investment of each of such other investor(s); and
(c) the alleged percentage interest of each of such other investor(s) in such alleged investment via Well Faith;
1.2 in relation to the 20% interest in a mining company owned by Deng allegedly acquired or to be acquired via Well Faith:-
(1) (a) the full name;
(b) the place of incorporation;
(c) the registered office;
(d) the principal place(s) of business;
(e) the authorized/registered share capital and paid up capital (both before the alleged acquisition of the 20% interest and immediately thereafter); and
(f) the directors, the shareholders and their respective shareholdings (both before the alleged acquisition of the 20% interest and immediately thereafter)
of the mining company owned by Deng (“the Mining Company”);
(2) the consideration for the alleged acquisition of the 20% interest in the Mining Company;
(3) whether the acquisition of the 20% interest in the Mining Company via Well Faith was by way of:-
(a) the transfer of existing shares in the Mining Company;
(b) the allotment of new shares in the Mining Company; or
(c) a combination of both (a) and (b),
and the number of shares transferred and/or allotted to the transferee and/or allottee (as the case may be) representing the 20% interest in the Mining Company;
(4) the full name(s) of the transferor(s) and transferee(s) and/or allottee(s) of the 20% interest in the Mining Company;
(5) the parties to the agreement for the acquisition of the 20% interest in the Mining Company;
(6) when the agreement for the acquisition of the 20% interest in the Mining Company was made;
(7) whether the agreement for the acquisition of the 20% interest in the Mining Company was made orally or in writing;
(8) if the agreement for the acquisition of the 20% interest in the Mining Company was made orally:-
(a) whether it was made at a meeting or over the telephone;
(b) between whom such agreement was made orally;
(c) if at a meeting:-
(i) the place of the meeting; and
(ii) in whose presence the agreement was made; and
(9) if the agreement for the acquisition of the 20% interest in the Mining Company was made in writing, the description, date and parties of the agreement in writing;
1.3 in relation to the alleged first payment of HK$7,000,000 to Deng by the Defendant’s personal cheques on 18th March 2011:-
(1) (a) the date;
(b) the amount;
(c) the drawer;
(d) the drawee bank;
(e) the payer; and
(f) the payee
of each of the Defendant’s personal cheques;
(2) whether such payment of HK$7,000,000 was a deposit or part payment or earnest money or otherwise in relation to the alleged acquisition of the 20% interest in the Mining Company from Deng; and
(3) whether such payment of HK$7,000.000 was for the transfer of existing shares in the Mining Company or the allotment of new shares in the Mining Company or otherwise;
1.4 in relation to the alleged direction by Well Faith for the first payment of HK$7,000,000 to Deng by the Defendant’s personal cheques on 18th March 2011:-
(1) when such alleged direction was given;
(2) by whom on behalf of Well Faith and to whom such alleged direction was given;
(3) whether such alleged direction was given orally or in writing;
(4) if such alleged direction was made orally:-
(a) whether it was made at a meeting or over the telephone;
(b) if at a meeting:-
(i) the place of the meeting; and
(ii) in whose presence such alleged direction was made; and
(5) if such alleged direction was made in writing, the description and date of the document or correspondence in which such alleged direction was made.
2. Paragraph 6(5):-
In respect of the allegations that “Out of this HK$8,000,000, the Defendant’s share was HK$6,045,000 while Willie Chieng’s share was HK$1,955,000. Mr. Willie Chieng requested that the entire sum of HK$8,000,000 be made in one lump sum to Deng and invited the Defendant to deposit her share to the Plaintiff’s account on the same date so that the whole sum can be transferred via the e-banking facility of the Plaintiff. He told the Defendant that the Plaintiff had owed him HK$1,000,000 as commission due to him and he would utilize the same for payment. . . . .”, please state with all particularity:-
2.1 in relation to the alleged instalment payment of HK$8,000,000 due to be paid to Deng on 23rd March 2011:-
(1) all facts, matters and circumstances (including any agreement or contract) based on which the sum of HK$8,000,000 allegedly needed to be paid to Deng on 23rd March 2011;
(2) all facts, matters and circumstances based on which the sum of HK$8,000,000 allegedly due to be paid to Deng on 23rd March 2011 was calculated and determined;
(3) whether such payment of HK$8,000,000 was a deposit or part payment or earnest money or otherwise in relation to the alleged acquisition of the 20% interest in the Mining Company from Deng; and
(4) whether the purpose of such payment of HK$8,000.000 was for the transfer of existing shares in the Mining Company or the allotment of new shares in the Mining Company or otherwise;
2.2 in relation to the allegation that out of the sum of HK$8,000,000, the Defendant’s share was HK$6,045,000 while Willie Chieng’s share was HK$1,955,000:-
(1) all facts, matters and circumstances based on which the aforesaid alleged respective shares and amounts of payment of the Defendant and Willie Chieng were calculated and determined;
(2) when the aforesaid alleged respective shares of payment were agreed;
(3) between whom the aforesaid alleged respective shares of payment were agreed;
(4) whether the aforesaid alleged respective shares of payment were agreed orally or in writing;
(5) if agreed orally:-
(a) whether it was made at a meeting or over the telephone;
(b) if at a meeting:-
(i) the place of the meeting; and
(ii) in whose presence it was agreed; and
(6) if agreed in writing, the description and date of the agreement, contract, document and/or correspondence in which it was agreed;
2.3 in relation to the allegation that Mr. Willie Chieng requested that the entire sum of HK$8,000,000 be made in one lump sum to Deng and invited the Defendant to deposit her share to the Plaintiff’s account on the same date so that the whole sum can be transferred via the e-banking facility of the Plaintiff:-
(1) when such alleged request and invitation were made;
(2) whether such alleged request and invitation were made orally or in writing;
(3) if made orally:-
(a) whether it was made at a meeting or over the telephone;
(b) if at a meeting:-
(i) the place of the meeting; and
(ii) in whose presence it was made; and
(4) if made in writing, the description and date of the document and/or correspondence in which it was made;
2.4 in relation to the allegations that Mr. Willie Chieng told the Defendant that the Plaintiff had owed him HK$1,000,000 as commission due to him and he would utilize the same for payment:-
(1) when the Defendant was allegedly told by Mr. Willie Chieng of the same;
(2) whether the Defendant was allegedly told by Mr. Willie Chieng of the same orally or in writing;
(3) if told orally:-
(a) whether it was told at a meeting or over the telephone;
(b) if at a meeting:-
(i) the place of the meeting; and
(ii) in whose presence it was told;
(4) if told in writing, the description and date of the document and/or correspondence in which it was told;
(5) whether the alleged commission of HK$1,000,000 due and owing from the Plaintiff to Mr. Willie Chieng had been approved by the Defendant as a director of the Plaintiff;
(6) whether the alleged commission of HK$1,000,000 due and owing from the Plaintiff to Mr. Willie Chieng had been approved by any of the other directors of the Company as at March and April 2011, namely, (i) Chieng Sai Yung Wilson (錢世庸) (“Mr. Wilson Chieng”), (ii) Chieng Tsai Wan Judy (錢燦雲) (“Ms. Judy Chieng”) and (iii) Chieng Wai Ting Warton (錢蔚霆) (“Mr.Warton Chieng”); and
(7) if the answer to (6) above is yes, all facts, matters and circumstances based on which each of the other directors of the Plaintiff is alleged to have approved the alleged commission of HK$1,000,000.
3. Paragraph 6(6):-
In respect of the allegations that “On 30th March 2011, another payment of HK$5,000,000.00 needed to be made to Deng. Mr. Willie Chieng was responsible for paying the entirety of said HK$5,000,000.00 and again he decided to make said transfer using the Plaintiff's e-banking capabilities.”, please state with all particularity:-
3.1 in relation to the payment of HK$5,000,000.00 allegedly needed to be made to Deng on 30th March 2011:-
(1) all facts, matters and circumstances (including any agreement or contract) based on which the sum of HK$5,000,000.00 allegedly needed to be paid to Deng on 30th March 2011;
(2) all facts, matters and circumstances based on which the sum of HK$5,000,000.00 allegedly needed to be paid to Deng on 30th March 2011 was calculated and determined;
(3) whether such payment of HK$5,000,000.00 was a deposit or part payment or earnest money or otherwise in relation to the alleged acquisition of the 20% interest in the Mining Company from Deng; and
(4) whether the purpose of such payment of HK$5,000.000.00 was for the transfer of existing shares in the Mining Company or the allotment of new shares in the Mining Company or otherwise;
3.2 in relation to the allegation that Mr. Willie Chieng was responsible for paying the entirety of said HK$5,000,000.00:-
(1) all facts, matters and circumstances based on which the sum of HK$5,000,000.00 for which Mr. Willie Chieng was allegedly responsible in paying the entirety thereof was calculated and determined;
(2) when it was agreed that Mr. Willie Chieng was responsible for the payment of the sum of HK$5,000,000.00 that needed to be made to Deng on 30th March 2011;
(3) between whom it was agreed that Mr. Willie Chieng was responsible for the payment of the sum of HK$5,000,000.00 that needed to be made to Deng on 30th March 2011;
(4) whether such agreement was made orally or in writing;
(5) if made orally:-
(a) whether it was made at a meeting or over the telephone;
(b) if at a meeting:-
(i) the place of the meeting; and
(ii) in whose presence it was made; and
(6) if made in writing, the description and date of the agreement, contract, document and/or correspondence in which it was agreed.
4. Paragraph 6(7):-
In respect of the allegations that “On 8th April 2011, another payment of HK$6,139,209.00 needed to be made to Deng. Again, per the direction of Mr. Willie Chieng, the Plaintiff’s e-banking capabilities were used to transfer said funds. The Defendant paid HK$3,094,209.00 as her share to the Plaintiff by depositing a sum of HK$1,456,209,00 into the Plaintiff's Hang Seng Bank account and a sum of USD210,000.00 to the Plaintiff’s foreign currency account No. 372-000018-203 which said sum was credited as payment of HK$1,638,000.00 by the Defendant to the Plaintiff. Mr. Willie Chieng was supposed to contribute HK$3,045,000.00 as his share.”, please state with all particularity:-
4.1 in relation to the payment of HK$6,139,209.00 allegedly needed to be made to Deng on 8th April 2011:-
(1) all facts, matters and circumstances (including any agreement or contract) based on which the sum of HK$6,139,209.00 allegedly needed to be paid to Deng on 8th April 2011;
(2) all facts, matters and circumstances based on which the sum of HK$6,139,209.00 allegedly needed to be paid to Deng on 8th April 2011 was calculated and determined;
(3) whether such payment of HK$6,139,209.00 was a deposit or part payment or earnest money or otherwise in relation to the alleged acquisition of the 20% interest in the Mining Company from Deng; and
(4) whether such payment of HK$6,139,209.00 was for the transfer of existing shares in the Mining Company or the allotment of new shares in the Mining Company or otherwise;
4.2 in relation to the alleged direction of Mr. Willie Chieng to use the Plaintiff’s e-banking capabilities to transfer the funds:-
(1) to whom such direction was allegedly made;
(2) when such direction was allegedly made;
(3) whether such direction was allegedly made orally or in writing;
(4) if made orally:-
(a) whether it was made at a meeting or over the telephone;
(b) if at a meeting:-
(i) the place of the meeting; and
(ii) in whose presence it was made; and
(5) if made in writing, the description and date of the agreement, contract, document and/or correspondence in which it was agreed;
4.3 in relation to the allegations that the Defendant paid HK$3,094,209.00 as her share to the Plaintiff and Mr. Willie Chieng was supposed to contribute HK$3,045,000.00 as his share:-
(1) all facts, matters and circumstances based on which the aforesaid alleged respective shares and amounts of payment of the Defendant and Willie Chieng were calculated and determined;
(2) when the aforesaid alleged respective shares of payment were agreed;
(3) between whom the aforesaid alleged respective shares of payment were agreed;
(4) whether the aforesaid alleged respective shares of payment were agreed orally or in writing;
(5) if agreed orally:-
(a) whether it was made at a meeting or over the telephone;
(b) if at a meeting:-
(i) the place of the meeting; and
(ii) in whose presence it was agreed; and
(6) if agreed in writing, the description and date of the agreement, contract, document and/or correspondence in which it was agreed.
5. Paragraph 6(8):-
In respect of the allegations that “Overall, a total of HK$10,000,000.00 of the said Transfers to Deng were made by and on behalf of Mr. Willie Chieng (per his decisions and directions) to satisfy his obligations under the Deng Share Purchase and thus have no legal bearing on the Defendant.”, please state with all particularity:-
(1) what exactly the alleged obligations of Mr. Willie Chieng under the Deng Share Purchase were;
(2) to whom Mr. Willie Chieng allegedly owed such obligations;
(3) the circumstances under which such alleged obligations of Mr. Willie Chieng arose;
(4) whether such alleged obligations arose pursuant to any agreement or contract;
(5) if such alleged obligations arose pursuant to any agreement or contract:-
(a) when such agreement or contract was entered into;
(b) the parties to such agreement or contract;
(c) whether such agreement or contract or was orally or in writing;
(d) if made orally:-
(i) whether it was made at a meeting or over the telephone;
(ii) if at a meeting:-
(I) the place of the meeting; and
(II) in whose presence it was agreed; and
(e) if agreed in writing, the description and date of the agreement, contract, document and/or correspondence in which it was agreed.
6. Paragraph 7(2):-
In respect of the Defendant’s denial that “there were no commercial or other justifications for any of the said Transfers to Deng due to the reasons alleged in paragraph 6 hereinabove”, please state with all particularity:-
(1) whether it is the Defendant’s case that there were commercial or other justifications and/or benefits to the Plaintiff for using the bank account(s) of the Plaintiff to make the said Transfers to Deng, assuming that such payments were made for the purpose of the acquisition by the Defendant and Mr. Willie Chieng via Well Faith of the 20% interests in the Mining Company from Deng as alleged by the Defendant; and
(2) if yes, what the alleged commercial or other justifications and/or benefits to the Plaintiff were.
7. Paragraph 8(1):-
In respect of the Defendant’s denial that “the said Transfers to Deng were caused to be made by the Defendant without the knowledge or approval of the Plaintiff”, please state with all particularity:-
(1) whether it is the Defendant’s case that:-
(a) she denies that the said Transfers to Deng were caused to be made by the Defendant but does not deny that they were made without the knowledge or approval of the Plaintiff;
(b) she does not deny that the said Transfers to Deng were caused to be made by the Defendant but denies that they were made without the knowledge or approval of the Plaintiff;
(c) she denies (i) that the said Transfers to Deng were caused to be made by the Defendant and (ii) that they were made without the knowledge or approval of the Plaintiff;
(2) if it is denied that the said Transfers to Deng were made without the knowledge or approval of the Plaintiff:-
(a) whether it is the Defendant’s case that the said Transfers to Deng were made with the knowledge or approval all of the directors of the Plaintiff at the material time (i.e. March to April 2011) other than the Defendant and Mr. Willie Chieng, namely, (i) Mr. Wilson Chieng, (ii) Ms. Judy Chieng and (iii) Mr. Warton Chieng;
(b) if the answer to (a) is no, which director(s) of the Plaintiff other than the Defendant and Mr. Willie Chieng is/are alleged to have knowledge or approved the said Transfers to Deng;
(c) in any event, whether each of (I) Mr. Wilson Chieng, (II) Ms. Judy Chieng and (III) Mr. Warton Chieng:-
(i) knew without approving; or
(ii) knew and approved
the said Transfers to Deng, and the facts, matters and circumstances relied upon by the Defendant in asserting that each of them had knowledge and/or approved the said Transfers to Deng (if and where applicable).
8. Paragraph 8(2):-
In respect of the allegation that “Subject to discovery and the Defendant’s Requests for Further and Better Particulars, it was the understanding of the Defendant that only the part related to Willie Chieng’s contributions, i.e. HK$1,955,000, HK$5,000,000 and HK$3,045,000 respectively were recorded as “temporary receipt” or “temporary payment”. They were recorded this way because it helped designate which account each respective entry would be assigned when Willie Chieng settled the balance due to the Plaintiff. It was done in accordance with the Plaintiff’s regular business practices as decided by Maggie Mak.” (emphasis added), please state with all particularity:-
(1) what exactly the alleged regular business practices of the Plaintiff as decided by Maggie Mak were;
(2) when and under what process Maggie Mak allegedly decided such alleged regular business practices;
(3) whether the alleged regular business practices of the Plaintiff as decided by Maggie Mak were contained in or evidenced by any document or correspondence; if yes, the date and description of such document or correspondence;
(4) when the alleged regular business practices of the Plaintiff as decided by Maggie Mak came into effect and the period during which the same have remained in effect;
(5) all facts, matters and circumstances based on which it is alleged that Maggie Mak had the authority to decide the alleged regular business practices of the Plaintiff; and
(6) whether the alleged regular business practices of the Plaintiff as decided by Maggie Mak had been approved by the board of directors of the Company; if yes, the date of the meeting(s) and/or written resolutions of the board of directors of the Company allegedly approving the same.
9. Paragraph 8(3):-
In respect of the allegation that “Because of Mr. Willie Chieng’s involvement in the Deng Share Purchase, the Plaintiff was well aware of the said Transfers to Deng.”, please state with all particularity:-
(1) whether it is the Defendant’s case that solely by virtue of the alleged involvement of Mr. Willie Chieng (who was not a shareholder and was only one of the five directors of the Plaintiff during the period when the said Transfers to Deng were made) in the Deng Share Purchase, the Plaintiff was fixed with notice or knowledge of the Deng Share Purchase; and
(2) if no, all other facts, matters and circumstances relied upon by the Defendant in alleging that the Plaintiff was well aware of the said Transfers to Deng.
10. Paragraph 12(3):-
In respect of the allegation that “Subject to discovery and the Defendant's Requests for Further and Better Particulars, it is the understanding of the Defendant that an amount of HK$1,000,000 being commission to Mr. Willie Chieng was credited to the ‘temporary account’ as part repayment of Willie Chieng’s share of the transfer.”, please state with all particularity:-
(1) all facts, matters and circumstances in support of the alleged understanding of the Defendant an amount of HK$1,000,000 being commission to Mr. Willie Chieng was credited to the ‘temporary account’ as part repayment of Willie Chieng’s share of the transfer.
Dated the 15th day of June 2016.
| | HENRY WAI & CO. |
| | Solicitors for the Plaintiff |